Stern v AAI Limited t/as AAMI
[2024] NSWPIC 497
•9 September 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Stern v AAI Limited t/as AAMI [2024] NSWPIC 497 |
| CLAIMANT: | Harry Stern |
| INSURER: | AAI Limited t/as AAMI |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 9 September 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; sections 3.11(1) and 3.28(1); miscellaneous claims assessment; whether accident caused wholly by the fault of the claimant; where claimant’s vehicle collided with vehicle stationary at set of lights; claimant’s case was that the brakes failed and accident not caused by his fault; whether accident caused by the fault of the owner of the vehicle; no history of the claimant experiencing problems with brakes prior to accident; road surface was wet and slippery; vehicle started sliding forward when claimant put his foot on the brakes; more likely than not that the brakes were applied forcefully, the vehicle skidded on the wet and slippery road, and collided with stationary vehicle; no fault on the part of the owner of the vehicle; collision occurred because claimant failed to maintain control of the vehicle and failed to drive to the prevailing conditions; accident was not caused by the fault of any other person; Held – sections 3.11(1) and 3.28(1) are concerned with causation of the accident that involved fault; given claimant’s conduct was the only cause of the accident that involved fault, the accident was caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE
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STATEMENT OF REASONS
BACKGROUND
Harry Stern (claimant) was injured in a motor accident at Drummoyne on 25 March 2023 (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer).
On 12 April 2023 the insurer admitted liability to pay statutory benefits for up to 26 weeks after the accident. Following this decision, there have been twists and turns in the liability status of the claim. The claim was denied on 30 June 2023, and subsequently accepted following an internal review.[1] Further liability decisions were made thereafter.[2] Ultimately, on 22 March 2024 an internal reviewer affirmed the decision made by the insurer to deny liability for the claim on the basis that, for the purposes of ss 3.11 and 3.28, the claimant was wholly at fault for the accident[3].
[1] Internal Review decision dated 19 July 2023; Liability notice dated 20 July 2023.
[2] Decisions dated 19 February 2024 and 20 February 2024.
[3] 20 February 2024 decision.
The claimant disputes that the accident was caused by his fault, and has commenced these proceedings. The disputes are miscellaneous assessment matters: Sch 2 cl 3 (d) and (e) MAI Act.
LEGAL FRAMEWORK
The claimant is not entitled to statutory benefits more than 26 weeks[4] after the motor accident if the motor accident was caused wholly or mostly by his fault: ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act. The parties agree that, for the purposes of ss 3.11 and 3.28, “fault” means a failure to exercise reasonable care and skill.
[4] Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 do not apply: s 2.
The driver of a motor vehicle is required to take reasonable care having regard to all the circumstances: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26]. The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
The owner of a vehicle who makes its vehicle available to another person to drive owes that person a duty to take reasonable care that the vehicle is safe to use: Benton v Scott's Refrigerated Freightways [2008] NSWCA 143 Campbell JA at [51] (Bell JA and McDougall J agreeing); Harmer v Hare [2011] NSWCA 229 Whealy JA at [214] (Beazley JA and Sackville AJA agreeing).
It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident was caused wholly (or mostly) by the fault of the claimant: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45] [55] and [67].
ASSESSMENT
The proceedings were listed for assessment on 4 September 2024. No witnesses were called or required to give evidence. The assessment was limited to oral submissions. The parties agreed that the term “fault” as used in ss 3.11 and 3.28 meant a failure to exercise reasonable skill and care.
The insurer argued that the vehicle being driven by the claimant had been properly maintained and that there was no defect in the vehicle that caused the accident. In the insurer’s submission, the accident was caused wholly by the fault of the claimant because he failed to keep a proper look out and failed to apply his brakes in sufficient time to stop safely.
The claimant’s case in reply was that the failure of the brakes caused the collision, and that the accident was not caused by his fault.
EVIDENCE
The evidence relied on by the parties is contained in a joint bundle. All the material in the bundle has been considered.
An AAMI “NSW – Digital Claim Form Evidence” dated 29 March 2023 (claim form) contains the following description of the accident:
“Approaching set of lights. There was a car already stopped st lights. Applied breaks to stop and car slid into back of other vehicle.”
The claimant’s details are provided under the heading “At fault Driver’s Contact Details”. It is recorded that the claimant was a self-employed Uber driver. The claimant’s name appears as the declarant in the declaration section of the form. The form states as follows under the heading ‘declaration and authorisation’:
“By ticking the check box below and submitting, you declare that:
• All information you have provided in this claim form is true and correct in every respect.
• You are aware that under section 307C of the Crimes Act 1900, you can be issued with a fine up to $22,000 or imprisoned for two years, or both for knowingly providing false or misleading information in this form…”
There is then a declaration in the following terms:
“I, Harry stern, declare that, to the best of my knowledge, the information given by me in this form is true and correct...”
I accept the claimant’s evidence that the form was completed by his son. I infer that the information provided in the claim form on his behalf accurately reflects what the claimant told his son, and that the information is true and correct.
A police report dated 31 March 2023 records that the accident was reported on 26 March 2023. There is no dispute that it was the claimant who reported the accident to police, and I am satisfied that is the case. The report records that the accident occurred at the intersection of Victoria Road and Park Avenue, Drummoyne on 25 March 2023. The weather is recorded as being “overcast”. The report records that the surface condition of the road was “wet”. There is no description of the accident provided in the report.
A letter from Frank’s Automotive (Frank’s), authored by Peter Panagopolous, dated
12 July 2023 states:
“on 23/3/2023 White Toyota Corolla was driven by Harry Stern and entered our Workshop.
Customer requested tyres and brakes to be checked. Our Technician pumped up the tyres to the correct level, upon inspection he detected that ALL four (4) tyres were low in tread and were in near [sic] of replacement to maintain safety and reliability.
The brakes were also inspected and the front brake pads were found to be low and in need of replacement.”
The claimant provided a signed statement dated 21 August 2023. The statement was taken over the telephone by Mr Rostankov, an investigator engaged by the insurer. The statement records that the claimant had been working as a part-time Uber driver, and that he leased the vehicle involved in the accident from ANC Consulting Pty Ltd (ANC), the registered owner of the vehicle, five weeks prior to the accident.
The claimant states that on 23 March 2023 he drove the vehicle to Frank’s at Marrickville to put some petrol into the vehicle. While he was there he asked them to put some air in all four tyres as they were making noises and squeaking around every corner. He goes on the state:
“[16] they were then putting air into the tyres and upon further inspection we found the front right hand side drivers tyre was totally worn out on the inner side and basically worn down to the canvass.
[17] I then called the owner [ANC] and spoke with Yon. I know there are about four owners at this company…
[18] I told Yon all four tyres needed replacing and also the front brakes needed replacing as that’s the advice I received after the vehicle was checked at Franks…
[19] Yon then told me to bring the car back to [ANC]…
[20] I then took the car into [ANC] on the 24/03/2023 and again told Yon all four tyres needed replacing and also the front brakes needed replacing.
[21] When I took the car I saw they started working on the car, however I was then waiting for a couple of hours outside in [sic] and was not watching what they were doing to the car.
[22] Yon then told me the brakes are alright and he had replaced the front right hand side tyre, but I’m not sure if he replaced the other three tyres or not, and I could not really tell. So, I’m really not sure what he did to the car other than replace that one tyre that was completely worn out as I was outside the whole time and wasn’t watching them.
[23] Yon told me the car was alright to drive so I then got back into the car and worked for a couple of hours more that day as an Uber driver and the car seemed to be going ok and I didn’t notice any major issues with the brakes.”
The claimant worked again on 25 March 2023. At 5:20am he picked up a customer from the Gladesville area and was heading into the city. He states that it had been raining earlier in the morning, and that the roads were wet and a “bit slippery”, and there was “still dew on the roads”. It was not, however, raining. He had a passenger in the front seat, and was travelling eastbound along Victoria Rd, Drummoyne in the middle of three lanes. As he approached the intersection at Park Avenue he was travelling under 60kmph, and he saw the traffic lights turn orange then red.
He states:
“[29] There was a vehicle travelling directly in front of me in the middle lane and I saw it had stopped and was stationary at the red traffic lights. I was travelling about 30km/h at this moment.
[30] I had been a safe distance behind and then when I was about 15-25 feet away I put the foot on the brakes and the car just started sliding forward and sliding straight and I had no control.
[31] I could not take evasive action with the steering as the car was sliding straight and then I collided into the rear of the stationary vehicle…
[32] As I am not a mechanic I really can’t say or have an opinion as to why or how the brakes seemed to lock up, or why the car just started sliding straight and forward when I put my foot on the brakes…”
The claimant states that he “never saw the car again after the accident”.
The claimant provided a further statement dated 8 March 2024. He denies that the accident was his fault “in any way”. He states that he hired the car through Colink Services Pty Ltd (Colink), which is related to Exodus Motor Repair Centre Pty Ltd (Exodus) and ANC.
The claimant states that the online claim form submitted to AAMI on 29 March 2023,[5] was completed by his son and not him. He states that the description of the accident provided in that document was not a comprehensive description of the events leading up to the accident and did not fully describe how the accident happened. He states that the car did not slide, and that:
“the brakes failed and the car did not slow down before it impacted with the car in front.”
[5] The AAMI “NSW – Digital Claim Form Evidence”.
The claimant states that the statement dated 21 August 2023 did not set out full or correct details of the events leading up to the accident or how the accident happened. He states that when the statement was taken, he was in “extreme pain”, was strongly affected by painkilling medication and was “groggy”. He states that “[s]ome of the things in the statement are the investigator’s version, not my evidence”.
The claimant asserts that an email from Colink to the insurer’s investigator dated
20 September 2023 “makes incorrect assertions that are either mistaken or deliberately false”. He states that he did not take the car to the Exodus Repair Centre to have the front tyres inspected two weeks before the accident; he took the car into Exodus the day before the accident.
He also states that the assertion that he did not report issues or complaints about the condition of the car prior to the accident is false. He states that he complained to Yon by phone two days before the accident that he had received advice from Frank’s Automotive on 23 March 2023 that all four tyres of the car are making noises, are squeaky when going around corners, and that the mechanic at Frank’s told him that four tyres needed replacing and the front brakes needed to be replaced. He then took the car to Exodus on 24 March 2023, spoke to Yon, and told him that the mechanic at Frank’s had said that all four tyres and front brakes needed replacing.
The claimant states that some work was done on the car, and that Yon told him “[t]he brakes are alright and the front-side tyre has been replaced”. He stated that he waited while Yon attended to the car, that he changed one tyre, not all four, and that he watched while Yon “attended on the car”. He states that on “receiving the assurance from Yon, [he] drove the car”. The accident occurred the next day at 5:30am.
The claimant states:
“[18] Before the accident happened I was driving the car about 25 to 30km per hour. I saw the traffic lights change from amber to red. The car in front of me slowed down and stopped at the traffic lights. It was about 5 or 6 car lengths in front of me. I pushed the brake peddle [sic] with my foot and the peddle went straight to the floor. There was no resistance at all from the brake peddle [sic]. The car kept rolling along heading towards the car in front of me. There was no screeching of tyres from my car. The tyres did not skid. The brakes simply did not work. My car did not slow down at all until it impacted with the car in front of me that was waiting at the traffic lights. The airbags did not inflate, my chest was injured by the safety belt.
[19] My car continued in a straight line after I applied the brake pedal. I did not steer the car to the left or the right to avoid the car in front of me. I was travelling in the middle of three lanes that were going in an easterly direction towards the city. There was a car in the lane to my left. I did not try and swerve to the right as I was not sure whether there might have been a car to my right and I did not want to risk swerving to my right and going onto the other side of the road and potentially colliding with oncoming traffic.”
The claimant states that the insurer’s investigator “put things” in the statement of
21 August 2023 that he did not tell him. He states that it was Yon who worked on the car, that he saw what he was doing, and was only about 30 feet away. He states that he:
“[23] …saw Yon look under the bonnet of the car and I saw him replace the front right-side tyre. I was able to see what he did. He did not replace any other tyres.”
The claimant states that he did not tell the investigator it had been raining in the morning and that the roads were wet and “a bit slippery”. He states that it was overcast and raining the day after the accident, when he reported it to police. He relies on the Bureau of Meteorology (BOM) daily weather observations for March 2023 that records there was no rain in the 24-hour period of 25 March 2023.
The claimant states that the Exodus account and invoice dated 10 March 2023 relating to the change of four tyres is “deliberately false”, and provided reasons for this belief. The claimant states that the accident happened because the owner of the car he was driving allowed the car to fall into a state of disrepair and the brakes failed. He states that there was nothing he could do to avoid the car in front of him due to the brakes failing.
The investigator engaged by the insurer, Steven Rostankov, has given a statement dated
3 May 2024. Mr Rostankov describes the arrangements he made to take a statement from the claimant. He conducted a telephone interview with the claimant on 21 August 2023 and obtained his draft statement. The claimant advised him that he was going into hospital the following day for surgery.
On 22 August 2023 Mr Rostankov states that he received an email from the claimant with his draft statement attached. Mr Rostankov described the process involved in the preparation of the claimant’s statement. In his opinion the claimant sounded like:
“he was alert and extra keen for me to take the statement and I would describe him as very particular with the details. I formed the impression he had a good recollection of the accident 5 months earlier.”
He stated that he takes “dozens and dozens” of statements every year, and does not recall everything he discussed with the claimant on the phone. Mr Rostankov described his practice when taking statements from witnesses at [17] – [19]. He stated that he sent a word version of the draft statement to the claimant for him to review, and asked him to “read it carefully, make any changes he wanted to make…and when he was happy with it, asked him to sign it and return it to [him]”. He stated that he made it clear that the review and return of the statement was for the claimant to do when he was able, and that he was free to make any changes he thought necessary before signing and returning it.
Mr Rostankov stated that he was unaware the claimant had any concerns about the statement until contacted by the insurer’s solicitors. He stated at [25]:
“I understand that [the claimant] now says that his accident occurred because when he put his foot on the brake in his vehicle, his foot went straight to the floor, and met no resistance, and that is why he ran into the back of another car. He did not tell me that at any time. The version of how the accident happened which I recorded in the statement is what I was told by [the claimant] when we spoke on 21 August 2023.”
Mr Rostankov denies that he “made up” any of the information in the statement, and that he “faithfully recorded” what the claimant told him over the phone. He states that there was no time pressure.
An email from Colink sent on 20 September 2023 responds to an email from Mr Rostankov sent earlier that day addressed to “Yo”. The email records that:
“…As part of our verbal agreement with the driver, we had communicated that routine tire checks were to be conducted on a monthly basis. On 2023-03-25, approximately two weeks prior to the car accident (and not one day before the accident), the driver came over to have the front tires inspected. During this inspection, we thoroughly examined all four tires, the brakes, engine oil, coolant level, and all lights.
Upon inspection, it was determined that the four tires still had approximately one month of usage left. However, as a proactive safety measure, we decided to replace all four tires immediately. This means that about two weeks before the accident occurred, we had already replaced all of the vehicle's tires.
To provide you with more detailed information, I have attached the following documents for your reference:
1. 2 Pink slip (CY24JN)
2. Vehicle maintenance report
3. Rego renewal documents
….
We take vehicle safety very seriously, and our actions reflect our commitment to ensuring the wellbeing of all parties involved.
Furthermore, I would like to bring to your attention that the driver, from the inception of the rental, including after the accident occurred, has not reported any issues or complaints regarding the vehicle's condition. After the accident, the driver reached out to us and promised to fill out the claim form by 2023-03-27. During our telephone conversation, there was no mention of any physical discomfort or injuries suffered by the driver…”
The email does not disclose the name of the sender.
On 27 October 2023 the insurer’s solicitor sent an email to Colink, and sought a response to the following questions:
“1. In your email you say the tyres were replaced two weeks prior to the accident, which you say was on 25 March 2023. 25 March 2023 was in fact the date of the accident. Would you please confirm the date you say the tyres were changed?
2. Are you able to provide any documents confirming the change of tyres? If so, we would be grateful for a copy of same.”
On 1 November 2023 someone at Colink responded to the email from the insurer’s solicitor. The author of the response is not disclosed in the email or the email address from which the response was sent. The email records “[t]he changed date was 10 March 2023, which was two weeks prior to the accident date”. Attached to the email is a repair tax invoice from Exodus dated 10 March 2023. The invoice contains the following description of the services to which it relates: “Change Types [sic] x 4”. I infer that the word “Types” is a typographical error and should be “Tyres”.
ANC, and not Colink, is the registered owner of the vehicle. The precise relationship between ANC, Colink, and Exodus is not clear on the evidence before me.
An Exodus repair invoice dated 19 December 2022[6] describes a range of services performed on the vehicle, including “change front brakes”. The claimant’s position at the assessment was that he did not dispute the legitimacy or accuracy of the invoice. He submitted that the invoice was not detailed, and does not provide evidence of the condition of the vehicle on the day of the accident.
[6] Invoice number 191222A.
As recorded earlier, there is a dispute about the accuracy and probity of the Exodus invoice dated 10 March 2023.[7] The claimant alleges that the invoice is “deliberately false”. In oral submissions, the claimant argued in the alternative that the invoice was inaccurate.
[7] Invoice number 2023/IV0185.
The e-safety check reports for the vehicle dated 19 December 2022 and 21 June 2023 record that the “e-Safety Check status was “pass”. Each report records that:
“This inspection report shows if the vehicle has passed a NSW Safety Check. It is not a comprehensive report on the vehicle’s mechanical condition….”
A Service NSW receipt dated 20 December 2022 records that the registration of the vehicle had been renewed. A certificate of registration with a due date of 6 January 2023 records that the vehicle was owned by ANC. It is also recorded that an inspection was not required.
The claimant’s Uber weekly statement records that on 10 March 2023 he undertook 12 trips between 5:30am and 11:13am. There were no trips in the afternoon. His e-toll statement records that he travelled on WestConnex at 10:03am on 10 March 2023.
The report of Dr Sharma dated 11 June 2024, the operation report dated 27 July 2024, and the report of Ms Wickramage contain details of the claimant’s accident caused injuries and associated treatment.
SUBMISSIONS
Claimant’s submissions
In correspondence from his solicitor to the insurer the claimant argued that:
(a) the sole cause of the accident was that the brakes on the car he was driving failed;
(b) on behalf of the owner of the vehicle false assertions were made about replacing all four car tyres on 10 March 2023, about two weeks before the accident;
(c) Exodus did not undertake any servicing of the vehicle on 10 March 2023;
(d) the invoice of Exodus dated 10 March 2023 is false;
(e) the vehicle was inspected by Frank’s Automotive on 23 March 2023, two days before the accident. All four tyres and the front brake pads were in need of replacement;
(f) on 23 March 2023, two days before the accident he reported by phone to the insured that all four tyres needed replacement and the front brakes needed to be replaced;
(g) on 24 March 2024, the day before the accident, he took the car to Exodus and was told by Yon that the brakes were alright and only the front right-side tyre was replaced;
(h) his statement dated 21 August 2023 was signed when he was affected by strong painkilling medication and he was groggy. The statement did not set out full or correct details of events and contained things that were the investigator’s version, not his evidence;
(i) there was no rain on the day of the accident. The road was dry;
(j) it rained on the day after the accident, when he reported the accident to police;
(k) a person or persons on behalf of the owner of the vehicle provided false and misleading information to AAMI about the state of repair of the vehicle, and
(l) the sole cause of the accident was that the owner of the vehicle had not kept it in a proper state of repair and the brakes failed.
In oral submissions the claimant argued that the Exodus invoice dated 10 March 2023 was unreliable, that the evidence established that there was a defect in the vehicle, specifically the brakes, and that the defect was the cause of the accident. In short, he submitted that the brakes of the vehicle failed. His case was that, while the road was not wet, there may have been dew on the road given the time of the morning.
The claimant drew attention to the fact that Colink was not the owner of the vehicle, and the author of the two emails from Colink was not known. That being the case, it was argued that those emails should be given little weight. The claimant submitted that the letter from Frank’s was reliable, and should be accepted.
The claimant argued that the insurer had not discharged the burden of establishing that the accident was caused by his fault.
Insurer’s submissions
The insurer relies on written submissions dated 10 May 2024. In the insurer’s submission there is no doubt that the vehicle the claimant was driving ran into the back of a stationary vehicle at a set of traffic lights. In the insurer’s submission, running into the back of a vehicle which is stationary at traffic lights is not something which ordinarily occurs without negligence.
The insurer argues that the accident happened as a result of the claimant’s negligence, and that this is consistent with the admission of fault in his initial report of the accident made to the insurer on his behalf by his son, who (in the insurer’s submission) must have obtained his understanding of the accident from the claimant.
With respect to the claimant’s statement dated 21 August 2023, the insurer argues that he had the time and opportunity to satisfy himself that the statement was accurate, make any amendments to the statement he wished to make, and that there was no time pressure on him to return the statement. It is submitted that the claimant was “compos mentis” when he gave the statement, and that it contains his version of the accident.
In the insurer’s submission, had the accident occurred as a result of brake failure, in the “dramatic” circumstances the claimant records at [18] of his statement, made almost 12 months after the accident it, “defies belief” that the claimant would not have told the investigator who took his statement.
The insurer argues that the claimant’s attendance at Frank’s on 23 March 2023 was a “casual visit” to the service station to put petrol in the car; he did not have an appointment to have the vehicle inspected by a mechanic.
The insurer submits the claimant’s assertion that he went to Frank’s is not “meaningfully corroborated” by the letter from Mr Panagopolous, as he had no record against which to confirm the date, and the letter was produced approximately four months later. The insurer says that the identity of the technician who performed the work is not known, and it can be deduced that the technician was not the author of the letter from Frank’s. The insurer argues that the letter is of very little probative value as a result. In circumstances where the claimant’s attendance at the service station was to fill up with petrol, the insurer submits it “defies belief” that this “casual encounter” would be recalled in the detail recorded in the letter. Further, the insurer has confirmed that the business had no record of the claimant, or the vehicle, attending the workshop.
The insurer relies on evidence from Exodus that the front brakes were replaced on or about 19 December 2022. On that date, the vehicle was also re-registered. The insurer submits it is not credible that, having been replaced on 19 December 2022, the front brakes required replacement again by 25 March 2023. Nor, in its submission, is it credible that any proper inspection of the brakes occurred when the claimant attended Frank’s on 23 March 2023.
The insurer relies on the email from Colink and the invoice from Exodus dated 10 March 2023. In the insurer’s submission, this evidence supports a finding that four tires were changed on 10 March 2023 and other inspections of the vehicle were undertaken at that time, as set out in the email.
With respect to the claimant’s allegation that the 10 March 2023 invoice is a forgery, the insurer refers to the level of satisfaction required with respect to a serious allegation in order to accept it: Briginshaw v Briginshaw (1938) 60 CLR 336.
The insurer argues that the “unsatisfactory” change in the claimant’s evidence to explain the circumstances of the accident, and the letter from Frank’s, does not corroborate his recollection of the timing of the work on the vehicle done at the request of its owner.
The insurer notes that the claimant’s Uber weekly statement shows that he had no Uber fares after 10:34 am on 10 March 2023. The insurer argues that this record is “entirely consistent” with the claimant attending the Homebush West premises of the insured that day following the job at 10:34 am, and the vehicle being out of action for the rest of the day.
Likewise, the one toll charge recorded on 10 March 2023 at 10:03 am is also consistent with the claimant attending the Homebush West premises of the insured that day.
The insurer submits the absence of Uber fares and toll charges after mid-morning on
10 March 2023 supports, rather than refutes, the records that indicate the vehicle was worked on that day in order to replace its tyres.The insurer submits that had the accident occurred as a result of brake failure, it “defies belief” that the claimant would not have advised the police, or the insurer in his online accident report, that the brakes had failed. In the insurer’s submission, the fact he did not do so compels a conclusion that his recent version of events must be rejected.
The insurer submits that the claimant’s version of events has substantially changed over time, making him unreliable on the central issue.
In the insurer’s submission:
(a)
the vehicle was the subject of an inspection and maintenance on
19 December 2022, during which the front brakes were changed;
(b) the vehicle was passed for registration by Vallas Group Pty Ltd on 19 December 2022;
(c) the claimant leased the vehicle from the insured on 1 February 2023;
(d) it was part of the leasing arrangement that routine tyre checks would be conducted on a monthly basis;
(e) the claimant attended the insured’s premises on 10 March 2023 to conduct a routine inspection of the vehicle’s tyres. The insured considered there was still about a month’s life remaining in the tyres, but as a matter of prudence, arranged for four tyres to be replaced that day;
(f) the claimant did not mention in his report of the accident to police that the brakes on his vehicle failed;
(g) the claimant’s son did not mention in his report of the accident to the insurer that the brakes on the vehicle he was driving failed. The online accident report form records the admission that the claimant was the driver at fault for the collision;
(h) the claimant did not mention at any time during his interview with Mr Rostankov in August 2023 that the brakes on the vehicle he was driving failed;
(i) a rear end collision does not happen, in the ordinary course of events, without negligence;
(j) the claimant had possession and control of the vehicle. On his version, he had driven the car at least from Homebush West, where the vehicle was serviced, to Maroubra (his home), and from Maroubra to Gladesville, after the work was done on the car at his request. He does not relate any incidents with the tyres or brakes in those journeys prior to the alleged brake failure on 25 March 2023;
(k) it is not credible that the brakes failed as alleged, and
(l) the accident occurred as a result of the claimant’s negligence, failing to drive the car at a speed and in a manner so as to be able to stop safely behind a vehicle which had safely responded to the changing of a traffic signal to red.
CONSIDERATION
The claimant’s statements
I have considered the explanation provided by the claimant in his statement of 8 March 2024 as to why he says the 21 August 2023 statement did not set out full or correct details of events leading up to the accident. His explanation included that he was “strongly affected” by pain killing medication and was “groggy”. I have also considered his assertion that some things in the statement are the “investigator’s version”.
I accept Mr Rostankov’s evidence that the version of the accident he recorded in the claimant’s statement of 21 August 2023 reflects what he was told by the claimant. I also accept that his impression of the claimant was that he was “alert and extra keen for [him] to take the statement”, that the claimant was “very particular with the details”, and had a good recollection of the accident that occurred five months earlier. Given Mr Rostankov’s experience taking statements, I give weight to his evidence about these matters, including the impressions he formed.
I accept Mr Rostankov’s evidence that he sent a word version of the draft statement to the claimant to review, that he asked the claimant to read the statement carefully, and told him he could make any changes he wanted to make. I also accept that Mr Rostankov told the claimant that when he was happy with the statement, he should sign it and return it when he was able.
I am satisfied the claimant had time to review the statement for accuracy. I consider it unlikely that the claimant would have signed the statement if he considered it to be inaccurate. I do not accept that some of the contents of the statement reflect “the investigator’s version”.
The claimant’s statement of 21 August 2023 was prepared five months after the accident, when the claimant’s recollection of events was likely to be clearer. For this reason, his statement of 21 August 2023 is considered to be more reliable, and is given greater weight, than his statement of 8 March 2024, prepared nearly 12 months after the accident.
Events prior to the accident
The claimant does not dispute the accuracy of the Exodus repair tax invoice of 19 December 2022. The invoice records the work performed on the vehicle that day. I am satisfied that on 19 December 2022 a number of repairs were carried out to the vehicle by Exodus, including a change of the front brakes. I find that an e-Safety check was carried out that day, the vehicle was given a “pass”, and the registration of the vehicle was renewed the following day.
I give the contents of the emails from Colink dated 20 September 2023 and 1 November 2023 limited weight. The author of the emails is unknown. While it is possible the author was the person referred to as “Yon”, I am not satisfied on the balance of probabilities that this is the case. The emails were sent from an address that only contains the company name[8]. Colink is not the owner of the vehicle. The relationship between it and ANC is not clear.
[8] colinkservicesptyltd.
The date referred to in the 20 September 2023 email, 2023-03-25, is clearly wrong, a matter clarified in the 1 November 2023 email. Further, despite the 20 September 2023 email containing a description of the inspection that was said to have been carried out on 25 March 2023, the only document produced with respect to the inspection and the work performed is the 10 March 2023 invoice. That document only refers to “change types x 4”.[9] The source of the matters referred to in the email from Colink dated 20 September 2023 is not disclosed.
[9]I accept the claimant’s evidence that he visited Yon only once in March 2023, the day before the accident. While I am not persuaded on the evidence before me that the Exodus invoice dated 10 March 2023 is deliberately false, I am not satisfied that the invoice is accurate.
I am not persuaded, on the balance of probabilities, that any tyres on the vehicle were changed on 10 March 2023. Nor am I satisfied that any form of inspection or maintenance was performed on the vehicle that day.
I accept the claimant’s evidence that on 23 March 2023 he drove the vehicle to Frank’s at Marrickville to get petrol, that while he was there he asked for air to be put in all four tyres because they were making noises and squeaking around corners, and that this was done.
I also accept his evidence that when air was put into the tyres the front right hand side tyre was found to be “totally worn out” on the inner side and worn down to the canvass. I accept the claimant’s evidence that later that day he spoke with Yon, and told him that all four tyres and the front brakes needed replacing.
I find that the claimant took the vehicle to ANC on 24 March 2023 and again told Yon that all four tyres and the front brakes needed replacing.
There is inconsistency in the claimant’s evidence about what he saw when he took the vehicle to be fixed. I give his earlier statement in time more weight than the subsequent statement, and find that while he saw someone start working on the vehicle, he then waited for “a couple of hours” outside, and was not watching what was being done to the vehicle.
I accept the claimant’s evidence that Yon told him the brakes “are alright”, that he had replaced the front right hand side tyre, and that the car was “alright to drive”. I find that on 24 March 2023 the front right side tyre was changed. I draw an inference, based on what the claimant says Yon told him, that the brakes were inspected on 24 March 2023.
I accept the claimant’s evidence that he worked for “a couple of hours” more on 24 March 2023 as an Uber driver, the car seemed to be “going ok”, and he “didn’t notice any major issues with the brakes”.
The accident
There is no dispute that the claimant was involved in a motor accident on 25 March 2023. The evidence satisfies me that:
(a) at approximately 5:20am on 25 March 2023 the claimant was driving in an eastbound direction towards the city, having picked up a passenger from the Gladesville area;
(b) as he approached the intersection of Victoria Road and Park Avenue, Drummoyne, he saw the traffic lights turn from orange to red;
(c) the claimant was driving in the middle lane of three;
(d) there was a vehicle travelling directly in front of him in the middle lane that was stationary at the traffic lights;
(e) he was at that time travelling at least 30kmph;
(f) when he was approximately 15-25 feet away from the stationary vehicle in front of him, he put his foot on the brakes, and
(g) the claimant’s vehicle collided with the rear of the stationary vehicle.
The accident was reported to police by the claimant on 26 March 2023, the day after it occurred. I infer that the details recorded in the police report under “Incident Location” were provided by the claimant at that time. The report records that the weather was overcast, and that the surface condition was wet. There is no description of the accident recorded in the report.
In oral submissions the claimant’s position was that as the accident occurred in the early morning, there was probably dew on the road.
The claimant relies on BOM daily weather observations for March 2023. Those observations record that on 25 March 2023 the rainfall was 0mm, the rainfall on 24 March 2023 was 4.6mm, and on 26 March 2023 the rainfall was 1.8mm. The BOM report records that “most observations [were] from Observatory Hill, but some [were] from Fort Denison and Sydney Airport”. It is not clear from which of these locations the observations on 24, 25, and 26 March 2023 were taken.
I am not satisfied that the BOM observations establish, on the probabilities, that there was no rain at the location of the accident in the early morning on 25 March 2023. Nor do they satisfy me that the road was not wet and slippery. The most reliable evidence about the condition of Victoria Road when the accident occurred is the police report. The report records that the road was wet. The report contains information provided by the claimant to police the day after the accident, when the circumstances in which it occurred were fresh in his mind.
The claimant’s statement of 8 March 2024 records that he did not tell the investigator that it had been raining earlier in the morning, and that the roads were wet and a bit slippery. He went on to state[10] that it had not been raining that morning and the roads were dry. I am not persuaded that this is correct. I find that his evidence in the 21 August 2023 statement, that it had been raining earlier in the morning, and that the roads were wet and a bit slippery, is more reliable. That version was provided five months after the accident and is consistent with what the claimant reported to police the day after the accident.
[10] At [25].
I find that it is more probable than not that the road surface was wet and a “bit slippery” when the accident occurred.
The claim form records that as the claimant approached the car already stopped at the lights, he applied the brakes to stop and the car slid into the back of the stationary vehicle. In his statement of 21 August 2023 he provided a similar version of events, stating that he “..put the foot on the brakes and the car just started sliding forward and sliding straight and I had no control”. He went on to state that he “really can’t say or have an opinion as to why or how the brakes seemed to lock up…”
In his 8 March 2024 statement the claimant states that the version in the claim form was not a comprehensive description of events leading up to the accident, and did not fully describe how the accident happened. This may be accepted. However, in contrast to the description in the claim form, the description he provided in his statement of 21 August 2023 is comprehensive.
The claimant stated in his 8 March 2024 statement[11] that the vehicle did not slide, that the brakes failed, and the vehicle did not slow down before it impacted with the vehicle in front. He stated[12] that:
“…. I pushed the brake peddle [sic] with my foot and the peddle [sic] went straight to the floor. There was no resistance at all from the brake pedal. The car kept rolling along heading towards the car in front of me. There was no screeching of tyres from my car. The tyres did not skid. The brakes simply did not work.”
[11] At [7].
[12] At [18].
In both the claim form and the 21 August 2023 statement there is reference to the car sliding after the claimant applied the brakes. In neither document is there reference to the brakes failing. I consider it unlikely that if the brakes of the vehicle had failed, and the claimant pushed the brake pedal with his foot and the pedal went straight to the floor, he would not have included that information in the August 2023 statement. A brake “failure” as described by the claimant in his March 2024 statement is not something he would have forgotten. It is improbable that he would not have been aware that this was information that was both relevant and of significance to his claim.
The claimant’s statement of 21 August 2023 records that when he was at Frank’s on 23 March 2023 he asked for air to be put in all four tyres as they were “making noises and squeaking around every corner”. He said nothing in the statement about experiencing problems with the brakes prior to that time, or that he told anyone at Frank’s that he had experienced such problems. His evidence is that he was told while at Frank’s that the front brakes needed changing, a matter he reported to Yon on 23 and 24 March 2023. He states that Yon told him on 24 March 2023 that the “brakes are alright”. The claimant then worked as an Uber driver for a “couple” of hours more on 24 March 2023, and the vehicle “seemed to be going ok”. He did not notice “any major issues” with the brakes. He again worked as an Uber driver on the morning of 25 March 2023, and did not report any problems with the brakes until immediately before the collision.
I am not satisfied on the balance of probabilities that the brakes of the vehicle being driven by the claimant “failed”. The claimant had used the vehicle for a period of five weeks prior to the accident[13]. There is no evidence that he experienced problems with the brakes on any occasion prior to the collision. Had problems with the brakes occurred, I am satisfied that he would have referred to those problems in his statements.
[13] Claimant’s statement dated 21 August 2023 at [13].
I prefer the version the claimant provided in his August 2023 statement: that the vehicle started sliding forward when he put his foot on the brakes. I consider it more likely than not that he applied the brakes forcefully, that the vehicle skidded on the wet and slippery road, and collided with the stationary vehicle in front.
Was the accident caused by the fault of the owner of the vehicle?
The owner of the vehicle (ANC) owed the claimant a duty to take reasonable care for his safety. The exercise of reasonable care required the owner to take reasonable precautions to keep the vehicle in good repair and to have the work done on it performed competently.
The evidence establishes that the front brakes had been changed on 19 December 2022.
I have found that the claimant told Yon on 23 and 24 March 2023 that the front brakes (and all four tyres) on the vehicle needed replacing. This came about as a result of what someone at Frank’s told the claimant, and not as a result of the claimant experiencing problems with the brakes.
I have accepted the claimant’s evidence that Yon told him on 24 March 2023 that the “brakes are alright”, and that the car was “alright to drive”. I have drawn an inference that the brakes were inspected on 24 March 2023.
I am satisfied that after work was undertaken on the vehicle, the claimant continued to work for a “couple of hours more” on 24 March 2023, and that he experienced no problems with the vehicle, including the brakes. The claimant then worked again on 25 March 2023. At 5:20am he picked up a customer from the Gladesville area. There is no evidence that the claimant experienced any problems with the brakes prior to the accident occurring.
The claimant does not allege that the state of the tyres was causative of the accident. His case is that the accident was caused solely by the failure of the brakes. I have rejected that case. I am not persuaded that the brakes on the vehicle were not in good repair. I am not satisfied, on balance, that the accident was caused by the fault of the owner of the vehicle.
Was the accident caused by the fault of the claimant?
The claimant knew that it had been raining, and that the road was wet and slippery. He also knew that there was a stationary vehicle in front of him stopped at the traffic lights. He knew he had to bring his vehicle safely to a stop, and had the time and space to do so.
I have found that the claimant applied the brakes forcefully, that the vehicle skidded on the wet and slippery road, and collided with the stationary vehicle in front.
I find that the claimant’s vehicle collided with the rear of the stationary vehicle because he failed to maintain control of the vehicle and failed to drive to the prevailing conditions, in particular the wet road.
I am satisfied that the claimant failed to exercise reasonable care in the driving of the vehicle. I find that the accident was caused by the claimant’s fault.
The accident was not caused by the fault of any other person. Sections 3.11(1) and 3.28(1) are concerned with causation of the accident that involved fault. Given that the claimant’s conduct was the only cause of the accident that involved fault, I find that for the purposes of ss 3.11 and 3.28 the accident was caused wholly by the fault of the claimant.
COSTS
The claimant sought the maximum costs allowed by the regulations. The insurer did not argue against costs being awarded on this basis.
Success is not a prerequisite to the claimant recovering his reasonable and necessary costs from the insurer: AAI Ltd trading as GIO v Moon [2020] NSWSC 714 at [82].
The proceedings involved two disputes, one in relation to s 3.11 and the other in relation to s 3.28. Each dispute is a miscellaneous claims assessment matter: Sch 2 cl(3)(d) and (e).
Given the issues in dispute, the legal work involved, and that the matter was listed for oral submissions, I assess the claimant’s reasonable and necessary costs for each dispute in the amount of $1,919.36 plus GST, a total of $3,838.72.
This invoice was provided in response to the request from the insurer’s solicitors in their email of
27 October 2023.
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