Smith v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smith v Allianz Australia Insurance Limited [2022] NSWPIC 761
CLAIMANT:	Allen Smith
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Bridie Nolan
DATE OF DECISION:	16 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; factual dispute as to how claimant and insured vehicle collided; whether insured vehicle preparing to turn or commenced turn into driveway off road when accident occurred; independent eyewitness’ version of events corroborates claimant’s account; whether for the purposes of section 3.28 the motor accident was caused by the fault of the injured person; whether insurer discharged the burden upon it to refute, challenge, or in any way contradict the evidence of the eyewitness to the events who corroborates the evidence of the claimant; Held – insured vehicle commenced turn such that right corner of its bonnet was over the dividing lines of road; when the claimant realised that a collision was imminent, he swerved to the left, and two cars shaved one another; claimant’s vehicle then swerved and collided with parked cars; insurer failed to discharge the burden of proving the statutory precondition to the cessation of statutory benefits.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 10 April 2021. 3. Legal Costs:** The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,980 inclusive of GST.

Reasons for Decision

ISSUED UNDER S 7.36(5) OF THE MOTOR ACCIDENT INJURIES ACT 2017

Background

This determination relates to: an application for the determination of a miscellaneous claims dispute pursuant to Schedule 2, cl 3(e) of the Motor Accident Injuries Act 2017 (the Act). It requires me to determine whether the claimant was wholly or mostly at fault for the purposes of s 3.28(1)(a) of the Act.

Allen Smith (the claimant) lodged an Application for Personal Injury Benefits on 3 May 2021 in relation to injuries sustained in the motor vehicle accident which occurred on 10 April 2021. By a letter dated 1 June 202, the insurer accepted liability for statutory benefits up to 26 weeks. Liability post 26 weeks was subsequently denied by the insurer in a letter dated 4 August 2021 on the basis that the claimant was found to be wholly at fault for the subject accident for the purposes of s 3.28(1)(a) of the Act.
The claimant applied for an internal review. An Internal Review Certificate dated 26 August 2021 upheld the insurer’s initial determination that the claimant was wholly at fault for the subject accident.
The claimant applies to the Personal Injury Commission (Commission) for determination of whether the motor accident was caused wholly or mostly by his fault.

Documents considered

I have considered the documents provided in the Application and the Reply and any further information provided by the parties. Much of that which I consider relevant to my disposition of this Application are housed in the parties’ submissions, which I set out below.

Submissions

Insurer’s submissions

The insurer submits that the available evidence demonstrates that the subject accident was wholly the fault of the claimant. It submits that the available evidence exceeds the onus and standard of proof which was placed on the insurer to refute the claimant’s version of events. The version given by the claimant is not supported by the evidence and relies on an unqualified speculation which is, it says, firmly outweighed by the evidence in support of the insured’s version of the accident.
In an Accident Report Form dated 26 April 2021, the insured driver stated that he was planning to turn right into his driveway at 123 Lindesay Street, Campbelltown, in the state of New South Wales. He stated that he had stopped behind the double parallel lines (with his blinker on), giving way to the oncoming traffic before making his turn.
The insured driver then states that the collision occurred in the following manner:
“the first oncoming car [was] coming forwards uphill straight to me, I started pressing horn [sic], he turned to his side hitting my car’s front right corner and he even failed to stop but straight hit another parked car in its rear …”
Senior Constable Nathan Evans, interviewed by the insurer’s investigator by telephone on 3 August 2021, gave a statement regarding his attendance at the site of the accident. He attended the scene and spoke with both the insured driver and the claimant and recalls, relevantly, that:
“[the insured] said that there was a Commodore that was coming towards him along Lindesay Street and that veered onto the wrong side of the road and collided with his front hand quarter. Then, that forced the vehicle. As it glanced off his car, it then forced it into the Nissan Juke which was parked on Lindesay Street outside 110 or thereabouts.”
In short, the insured alleges that he was giving way to the oncoming traffic when the claimant crossed over the line and collided with the front right corner of his vehicle and collided with a parked car.
A photograph of the insured vehicle demonstrates that it stopped on the correct side of the road behind the double parallel lines. This photo was taken shortly after the collision, the insurer submits, where it would have been positioned at the time of the accident (see Figure 1 below). There is no suggestion that the vehicle had been moved from where it was sitting just after the accident occurred. The vehicle was later moved into the driveway before police arrived, only because, as the insured noted, it was blocking single lane traffic.
Given the position of the insured vehicle, the claimant’s version of the accident could not be accepted. Had the insured vehicle crossed into the claimant’s lane, this would have been reflected in where the car came to rest. Even where the insured vehicle may have been forced back by the collision, it is not consistent with having crossed onto the incorrect side of the road, nor is it consistent with having attempted a right-hand turn in front of the claimant’s vehicle.
The insured further submits that the damage to the insured’s vehicle is supportive of the insured’s version of events.
The insurer notes two photographs of damage to the vehicle provided by the claimant and the witness, Ms Lynette McCloskely. The photographs demonstrate the damage is strictly limited to the front right side of the vehicle, with scrape marks being present on the right side of the bumper. Had the insured crossed into the claimant’s path of travel to turn right into his driveway, it is an obvious conclusion that the damage would have been to the left side of the front bumper or the left side of the vehicle. The photographs, provided by two independent parties, prove that is not the case.
The insured submits further that the statement of the independent witness, Ms McCloskely, on balance, provides support for the insured’s version of events. She notes that she was locking her door and facing her car when suddenly, she heard a screech which she believed came from the claimant’s vehicle and immediately followed by impact to her vehicle. She acknowledges she did not see the accident, but her assertion regarding the screeching from the claimant’s vehicle is indicative that the insured vehicle was stationary, as she did not mention a screech from the insured vehicle, and it was instead the claimant who was required to perform correction in the speed of his vehicle.
The insurer acknowledges that Ms McCloskely cannot be certain as to the source of the screeching but has sworn to the accuracy of her statement. She further notes that Senior Constable Evans inspected the roadway and found no skid marks from either vehicle. The evidence of Ms McCloskely is, therefore, it submits, the most reliable source of information regarding the skidding of the claimant’s vehicle, which the insurer submits supports the insured’s version of events.
The insurer comments upon two inconsistencies identified, namely:
(a) the suggestion that the claimant failed to stop which caused the collision with the parked car, and
(b) it was the force of the impact with his vehicle that forced the claimant into the parked car.
The insurer submits that this alleged inconsistency is merely a variation in the terminology used in the documents which these allegations arise, viz. the Accident Report Form and the police report, respectively. The insurer submits that the insured was intending to convey the same circumstance each time it was reported. The insurer urges upon me not to over scrutinize the insured’s language on various forms submitted. The insurer otherwise submits that the inconsistency is merely trivial and makes no material difference.
The insurer deals with the claimant’s various submissions as follows:
(a)    the claimant’s version of events that the insured was conducting a right-hand turn in front of the claimant. The insurer refutes this on the basis that if that were the case, the damage would have been to the left-side of the insured’s vehicle and not to the right-hand side of the front bumper.
(b)    In reliance on Google Maps, the claimant has suggested that had he corrected his vehicle in the manner indicated by the insured, he would have stopped short of the parked vehicle being to the left of the tree on the street view image.
(c)    The insured submits that this reasoning is flawed, and the claimant’s vehicle would not have immediately turned left in line with the point of the collision. It is uncontroversial that the vehicle would have skidded forward to some degree, and that the turning circle of the vehicle is not at a 90-degree angle, meaning it would have travelled forward when moving left. There is, further, the reaction time of the claimant, being at least a minor delay in anticipating the subject accident and then manoeuvring the vehicle. The culmination of these factors is that the claimant’s vehicle would have travelled a few metres, before colliding with the side of the road, which is demonstrated by the collision of the claimant with the parked car.
(d)    The claimant’s submissions with respect to Newton’s third law of motion is used to suggest that the claimant’s collision with the insured’s vehicle would have had an equal and opposite reaction, which would in no way whatsoever have seen the claimant’s vehicle pushed to the left and far enough into a parked car. The insurer submits that no expert evidence has been presented to provide any corroboration for this hypothesis.
The insurer makes submissions with respect to the “burden of proof”. It refers to the decision of Member Williams in ACF v Insurance Australia Limited t/as NRMA [2021] NSWPIC 290 at [48], wherein the member refers to the onus of establishing matters the subject of ss 3.11 and 3.28 of the Act, namely the cessation of benefits must be established on the balance of probabilities. The insurer also refers to the decision of Morely v ASIC [2010] NSWCA 331 (at [753]), which held that the balance of probabilities, as it relates to s 140 of the Evidence Act 1995 (NSW), requires the tribunal to reach an actual persuasion. The insurer submits that in the present case the evidence plainly meets this standard.
I observe at this juncture that the rules of evidence do not apply in the Commission such that to suggest that I am, in some way, bound to make a finding on the balance of probabilities, is technically incorrect. While it is not impermissible for the Commission to rely on the principles codified by s 140 of the Evidence Act, (see eg. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, at [126]-[127]; Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35]; Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, [2013] VSCA 305 at [29]-[40]; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540, [2014] VSCA 322 at [22]-[30]; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, [2014] FCAFC 93 (Sullivan) at [98]-[122] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at [171]), the procedure that the Commission decides to follow in any particular case, and whether it decides to inform itself by reference to the rules of evidence, has been left by the Legislature as a matter for the Commission to determine.
The common law position with respect to the onus of proof, as opposed to the burden of proof, was recently considered by the Queensland Court of Appeal in Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2022] QCA 94. In that case, Sofronoff P, with whom Bond JA and Brown J agreed, observed (at [18]:
“In general, it is the rule that the party who asserts a conclusion must prove the facts that lead to that conclusion. Courts and tribunals do not make orders affecting persons just for the asking; something must be shown to move the court or tribunal to exercise its jurisdiction to make an order to bind another person. Hence the old maxim ‘He who moves, proves’.”
Similarly, in Vines v Djordjevitch (1955) 91 CLR 512 at [519]-[520], the High Court provided that where a statute provides:
“an exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.”
As it is the insurer which wishes to rely upon the existence of the condition of exclusion under s 3.28(1)(a) of the Act, these authorities would appear to render incumbent upon it, the legal burden of persuading or proving that proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at [257]. Cross on Evidence describes the legal burden as “the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) by a preponderance of the evidence”: JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [7010]. This case, because it is the insurer who wishes to rely on the pre-condition articulated in the enactment allowing the cessation of the payment of statutory benefits by reason of the claimant being wholly all mostly at fault, the burden of proving the existence of these legal preconditions full squarely on the insurer. The insurer is required on the preponderance of evidence to satisfy the Commission of the existence of these statutory pre-conditions.
While pausing on this issue, I further observe the Commission is not obliged to accept evidence uncontradicted by the means of cross-examination or otherwise, it has long been recognised that the rejection of such evidence may amount to a breach of procedural fairness: see Sullivan at [119]. I will make more of this proposition later in my reasons.

Claimant’s submissions

The claimant submits that he was required to swerve his vehicle to avoid the insured driver and subsequently collided into a parked car as a result. The insured driver asserts the claimant had crossed over onto the wrong side of the road and collided with the right side of his vehicle. The insured driver’s version of events is entirely inconsistent with the evidence available which all coincides with the claimant’s version of events. The claimant also notes the discrepancies in the police report in relation to the location of the accident, wherein the police note that a Nissan Duke sedan was parked outside number 110 Lindesay Street in Campbelltown. This is in fact correct as the parked vehicle was outside 123 Lindesay Street in Campbelltown. This is the residential address of the insured driver and was the driveway in which he was attending to make a right turn. The claimant refers to what he describes as “the first version of events by insured driver”. He says these first version of events describes the accident in such a way that the claimant was travelling on the wrong side of the road and in an attempt to correct his vehicle, clipped the right side of the insured’s vehicle, failed to stop, and collided into the back of the right of a parked car.
The claimant relies upon photographs provided in the insurer’s internal review which indicated that the point of impact of the claimant’s vehicle with the parked car is on the left front side of the bonnet. The claimant refers to the fact that he was travelling within the speed limit between 50 and 60 kmph. He submits that as the insured driver was intending on turning into the driveway of 123 Lindesay Street, Campbelltown, presumably the front of his vehicle would have been near the brake in the line roads or thereabouts in the photograph. If the claimant were to have been travelling in the wrong lane as is asserted by the insured driver; as he was coming towards the insured’s vehicle, the claimant’s vehicle would have most certainly been in the insured’s lane, if not entirely. He therefore submits that if the claimant were to correct his vehicle to swerve back into his lane whilst travelling at approximately 60 kmph, causing him to only just swipe the front of the insured’s car, this would mean that he would have had to have corrected his vehicle in such a way that caused him to turn his steering wheel entirely to the left, and if that were the case, and he failed to stop after colliding with the insured’s vehicle, he would have entirely missed the parked car and would have been in the gutter to the left of the tree. In order to collide with the parked car, the claimant says he would have had to continue straight after colliding with the front right of the insured’s car and then turned his vehicle again to the left to collide with the parked car. He says that this scenario is simply implausible.
The claimant then refers to what he calls “the second version of events by the insured driver”.
The second version of events was that provided to police where he alleges that the force of the impact with his vehicle forced the claimant into the parked car. The claimant reiterates that the insured driver says that his vehicle was completely stationary behind the white lines as he was waiting for traffic to clear before turning into his driveway. He asserts that the claimant collided with his stationary vehicle, and the force of that impact somehow forced the claimant’s vehicle into the parked car.
He relies on Newton’s third law of motion to state that if the claimant collided into his vehicle, that would cause an equal and offset reaction and force onto the insured’s stationary vehicle and would in no way whatsoever cause the claimant’s vehicle to be pushed left far enough into the parked car. This would only be possible if the insured’s vehicle was not stationary and was in fact moving or commencing his right-hand turn. Further, if the force of the collision was as significant as described by the insured driver and it caused the claimant’s vehicle to collide with the third car, the damage to the insured’s vehicle would have been much more significant.
The claimant says consistently in his statement that he was driving south along Lindesay Street and the insured vehicle crossed over the centre into his lane and he’s glanced off that car into the parked Nissan Duke on the street. He says in his signed statement of 27 October 2021 that “as we were driving a vehicle bearing registration number xxx attempted to turn right into a driveway across my path. I tried to swerve to avoid the collision, however, the driver hit the side of the car causing me to collide into a parked car on the left side.”

A witness to the accident confirmed in her statement dated 25 August 2021 that as she and the claimant were travelling up Lindesay Street, Campbelltown, they saw the insured driver’s vehicle who was travelling in the opposite direction. She noticed the insured driver attempting to conduct a right-hand turn, and it seemed that he put his foot down to quickly make the turn, and this is when the accident occurred. The claimant did not have enough time to stop because it happened all very quickly. The insured vehicle clipped the front side of the vehicle and caused the claimant’s vehicle in which she was travelling to be pushed into the right of a parked car that was on the side of the road. With respect to the insurer’s contention that if the insured vehicle had crossed over to perform the right-hand turn, the damage would be to the left-hand side of the vehicle the claimant says that his continuous reporting is that the insured driver had crossed over into the centre line, thereby causing the front of his vehicle to be in the claimant’s lane. This is consistent with the damage that I have sighted to the insured vehicle.
The claimant submits that the insured is wholly or mostly at fault and submits that the insurer was not entitled to cease the payment of statutory benefits.

Reasons

I held an initial preliminary teleconference in this matter wherein, given the discrepancy in the version of events, I asked the parties whether the matter required an oral hearing. Both parties elected for a decision to be made on the papers. I indicated to the parties at the time at which I raised this issue with them that the opportunity of an oral hearing was consistent with the rules of procedural fairness in this case. Despite this observation, as I have said, the parties waived this entitlement and elected to proceed on the papers
As I have noted above at paragraph 24, the most compelling reason why I have found that the insurer has failed to discharge the burden upon it in this case, is the failure to refute, challenge or in any way contradict the evidence of the eyewitness to the events who corroborates the evidence of the claimant. Although I need not necessarily accept that evidence, if I were to reject it, I must clearly and logically state why I have done so and what evidence that is probative, cogent, and cohesive in nature, I rely upon to do so.
Even if I were inclined to reject this evidence, I cannot identify any cogent, cohesive, or probative evidence upon which I could satisfactorily do so. Indeed, the evidence supports the contrary finding.
I do not agree with the insurer’s submission that in order to take into account a basic law of physics I must have expert evidence from a crash site investigator. If the accident were to have occurred as the insurer posits, there would, almost invariably, be more damage to the insured vehicle. I consider it entirely implausible that claimant’s vehicle travelling at the speed of 50 km an hour, could, as a matter of basic physics, simply glance off the side of the insured’s vehicle and travel some further distance, colliding with a parked car. When two cars collide with one another; the forces of the collision oppose one another. I am satisfied that the impact of the claimant’s vehicle grazing the insured’s vehicle would be sufficient to push it back slightly. I am satisfied that this explains why the insured’s vehicle is positioned as it was photographed in figure one below, as positioned ever so slightly behind the double dividing lines.
[IMAGE UNABLE TO RENDER]

Figure 1: Photograph of the insured's vehicle taken immediately following the accident.

Likewise, I consider that had the accident occurred as the insurer contends, the respective damage to the insured and claimant’s vehicles would be much greater. Rather, as Figure 2 depicts, the damage to the insured vehicle is only minor.
[IMAGE UNABLE TO RENDER]

Figure 2: Damage to the insured vehicle following the accident.

I do not accept the insurer’s explanation that if the accident were to have occurred as the claimant contends, the damage to the insured vehicle would have been perceptible on the left side of the vehicle only. It is not suggested by either the insured, the claimant, or the eyewitness that the insured vehicle had properly commenced the turn at all. Rather, the vehicle is said to have moved sufficiently to place the right corner of its bonnet over the dividing lines, such that when the claimant realised that a collision was imminent, he swerved to the left, and two cars shaved one another. The claimant’s vehicle having swerved and not corrected itself, smashed into the parked car. This explains why the witness in the parked car, Ms McCloskey, who did not see the accident, only heard the screeching of one car’s breaks. That is because the insured’s vehicle was effectively stationary.
For all these reasons, the evidence, when viewed objectively as a cohesive and cogent whole, does not persuade me to the requisite standard of satisfaction that the insurer has discharged the burden of proving the statutory precondition to the cessation of statutory benefits. I am not satisfied that the insurer has demonstrated that the claimant was wholly or mostly at fault.
By reason of the fact that the insurer made an absolute finding that the claimant was wholly at fault, I am not required to embark upon a comparison of culpabilities as is required for the purposes of contributory negligence. To embark upon this exercise in the absence of an admission of liability on the part of the insurer, is beyond my remit. Therefore, the insurer has failed to discharge the onus upon it, the consequence being that it may not reduce the claimant’s statutory benefits pursuant to s 3.28 of the Act.

Costs and disbursements

The claimant seeks the maximum regulated costs in relation to the application. He refers to the fact that his legal representatives were required to undertake several steps to prepare the application, including but not limited to a thorough review of the evidence available as well as obtaining statements. Such work was reasonable and necessary in the circumstances and the costs claimed and incurred are recoverable by legal practitioners pursuant to regulation 22 of the Motor Accident Injuries Regulation 2017.
I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,980 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 10 April 2021.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,980 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW) (the Act), and
· Motor Accident Injuries Regulation 2017.

[2022] NSWPIC 761

16 December 2022