Sokol v QBE Insurance (Australia) Limited
[2023] NSWPIC 546
•17 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sokol v QBE Insurance (Australia) Limited [2023] NSWPIC 546 |
| CLAIMANT: | Yuri Sokol |
| INSURER: | QBE |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 17 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment regarding the insurer’s decision to cease statutory benefits; claimant travelling on motorway using cruise control encountered police roadblock and was unable to stop vehicle in time; insurer contended claimant wholly or mostly at fault for failure to keep a proper lookout and colliding into the rear of the insured vehicle in contravention of rule 126 of the NSW Road Rules 2014; Held – claimant was not maintaining a proper lookout in breach of his obligation to take reasonable care; claimant’s breach was the sole cause of the accident; claimant wholly at fault. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 (the Act) 1. For the purposes of s 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of s 3.28 or s 3.36 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 22 September 2022. 4. Legal Costs: The claimant is self-represented and not entitled to legal costs. |
STATEMENT OF REASONS
INTRODUCTION
The claimant applies for the determination of a miscellaneous claims assessment pursuant to Schedule 2 (3)(d) and (e) of the Motor Accident Injuries Act2017 (NSW) (the Act) regarding the insurer’s decision to cease statutory benefits, pursuant to ss 3.11 and 3.28 of the Act.
On 19 January 2023, the insurer issued a Liability Notice determining that the claimant was wholly or mostly at fault for failure to keep a proper lookout and for colliding into the rear of the insured vehicle in contravention of rule 126 of the NSW Road Rules 2014, which provides that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
The insurer’s decision of 19 January 2023 was affirmed by internal review on 7 February 2023.
MATERIAL BEFORE ME
In his Claim Form dated 20 October 2022, the claimant described the accident as follows:
"I was travelling on M1 Highway from Surfers Paradise to my home at Lismore Heights NSW 2480, when driving over the crest at 100kmh in 110kmh zone, I saw a group of cars slowly moving (maybe at 10kmh?) and my car (Lexus UX250), which has automatic breaks with my right foot. With comparative speed to other vehicles I hit them at high speed, clipping the left side of
1. 1991 Mitsubishi Pajero (minor damage to nearside bumper and nearside mirror), drove away from scene. then hitting
2. 2020 Mazda Cx-5-extensive damage to rear end and front, causing it hitting next car on the road (no injuries to driver or passengers, but car was towed away)”
The claimant provided letter to QBE Internal Review dated 20 January 2023 detailing the following:
“Please reconsider your decision to cancel benefits for my injuries based on these following facts.
It was true that I was at the wheels of the car involved in the accident, however, it was not due to my negligence nor driving inexperience.
While Police Report correctly indicated that my vehicle caused damage to 3 other cars – it has not mentioned why these - and in fact 15 other vehicles - were stationary on Pacific Highway where allowed speed limit was 110km/h.
The fact was, that on this section of the Highway a road accident happened several minutes before my car came in, and two police officers already were on the scene to regulate the traffic. However, they failed to place any warning signs on the road to slow down incoming traffic or warn about accident further ahead.
To prove that traffic was stopped blocking the road long before I came - I can point that all drivers and passengers of cars my vehicle damaged – were outside of their vehicles – walking along the road ahead - to see the prior accident, but who also failed to put outside Emergency Warning Breakdown Safety Triangles, which every car carries in the boot.
So, when I drove my car over the crest of Highway at permissible speed of 110kmh and saw stationery cars, blocking entire width of the road, I had less than a second to put on breaks – which was not enough to stop my car.
So, the accident was not of my fault, but a summary of circumstances, where I was also a victim”
The police report dated 28 October 2022 records the following:
“On Thursday 22/9/2022 Highway Patrol Police from Byron Bay were conducting traffic control on the Pacific Mtwy, Billinudgel with a Linfox B-Double truck broken down within the confines of the bridge railings of Marshall Creek south bound.
Due to the poor visibility of this heavy vehicle on the sweeping bend (LANYON/FARUKH) were positioned on the northern side of the bridge 100m before the heavy vehicle.
(LANGHEIM) was positioned a further 200m north on the down hill grade leading to Marshall Creek. Both police vehicle had red/blue emergency lights flashing, and the message board displaying "MERGE RIGHT" with the addition of four traffic cones angled across lane 1 diverting traffic into lane 2.
All South bound traffic had at least 500 metres clear unobstructed vision on the down hill grade on approach to the first police vehicle, with an additional 200m to merge before the second police vehicle.
This traffic control had been flowing for no less than twenty minutes with out incident, with traffic merging and flowing through at a reduced speed, averaging 20-30 km/h.
At 11:52am VOI 1 has entered into this area at a speed of about 100 km/h in lane 1 with VOI‘s 2, 3, and 4 already having reduced speed and merged into lane 2.
VOI.1's offside has side swiped the rear nearside of VOI.2, before heavily impacting into the rear of VOI 3, pushing 3 into 4.
Police were able to reverse along the edge line and be in attendance within a minute (). Both VOI 1 and 3 had sustained extensive damage with air bags deployed. The elderly occupants of VOI 1 were assisted from the vehicle by other motorists and police and escorted to the road shoulder.
Transport NSW, whom were on route for the truck break down, attended and provided traffic control with lane 2 blocked, and lane 1 flowing.
Ambulance NSW in attendance shortly after and both driver and passenger from VOI 1 conveyed to Tweed Hospital. Driver fractured right ankle, passenger fractured left lower arm. (Victim follow up conducted 7:00am 23/9 with both person admitted to Tweed Hospital for treatment to mentioned injuries).
Negative breath test provided by all drivers to police, and police ensured all parties involved had exchanged particulars.
Tows arranged for VOI 1, 3 and 4, with VOI 2 driven from scene.
VOI 1 deemed at fault with driver to be interviewed when injury treatment permits. Further action pending outcome of interview.”
Following a visit to the claimant’s place of residence on 28 September 2022 police obtained a version of circumstances (contained in police report) where admissions were made that cruise control was set at 100 kmph in the 110 kmph area, during a period of steady rain, on a wet road.
Police detail a conversation with the claimant relating to the safety features of the vehicle and a check of the vehicles owner manual in relation to the “dynamic radar cruise control”, ultimately as a result of the investigation police deemed the claimant at fault for the accident.
The insurer’s investigator attended the site using dash cam footage to examine the crest in the road. The footage tends supports the conclusion that there was sufficient opportunity and visibility for a vehicle travelling at 100 kmph to take appropriate avoidance measures such as applying brakes to avoid the accident despite the speed limit and the wet conditions.
SUBMISSIONS
Claimant’s submissions
The claimant submits that he was put into unavoidable situation, where policemen who stopped the traffic to investigate “some minor accident on Pacific Highway”, failed to put any warning signs or personally alert incoming cars to slow down and stop. He submits that when he drove over the crest and saw several cars blocking entire width of the highway, he had less than few seconds to stop his car travelling at permissible speed of 110kmph. In his submission, he was not responsible to cause the injury and should continue receiving some assistance for treatment and recovery (since the accident he has undergone three major operations and continues to attend weekly the Fracture Clinic at NSW Lismore Base Hospital to make new dressings and receive physio exegeses).
Insurer’s submissions
The insurer relies on the material that I have set out above to submit that the claimant is wholly or mostly at fault for failure to keep a proper lookout and colliding into the rear of the insured vehicle in contravention of rule 126 of the NSW Road Rules 2014.
REASONS
The claimant’s evidence does not suggest that he applied the brakes consistent with the visibility of the stopped cars, which, I am satisfied by reason of the video footage provided by the insurer’s investigator, would have been available to him. Rather that he did not have the opportunity to do so. On the balance of the evidence, including this dash cam footage and the police report which details the use of safety signage, I am satisfied that the claimant was not maintaining a proper look out in breach of his obligation to take reasonable care. I am satisfied that this breach was the sole cause of the accident.
As there is no other cause for the accident other than the claimant’s failure to maintain a proper look out, I am satisfied that the claimant is wholly at fault for the accident.
COSTS
The claimant is self-represented and not entitled to legal costs.
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