Suleiman v AAMI
[2021] NSWPIC 366
•16 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Suleiman v AAMI [2021] NSWPIC 366 |
| CLAIMANT: | Saad Suleiman |
| INSURER: | AAMI |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 16 June 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of statutory benefits after 26 weeks as claimant at fault; claimant riding a motorised scooter at intersection; inconsistent versions of events as to path of travel; claimant charged by NSW Police; evidence of insured driver preferred; Held - determined that the claimant was at fault and insurer entitled to cease payments of statutory benefits after 26 weeks. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 29 December 2019. 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $330 inclusive of GST. 5. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a dispute as to whether the accident was caused mostly or wholly by the fault of the Claimant, as per sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017:
Mr Suleiman (Claimant) was injured in the motor vehicle accident that occurred on 29 December 2019. A collision occurred between a motorised scooter that Mr Suleiman was driving and the Insured vehicle (Nissan X-Trail), on a roundabout in Edmondsun Park (Jardine Drive and Buchan Avenue).
A dispute has arisen as to whether Mr Suleiman was wholly or mostly at fault in the accident. The Insurer issued a liability notice dated 11 May 2020 denying liability for payments of statutory benefits beyond 26 weeks, due to a decision that Mr Suleiman was wholly at fault.
Mr Suleiman lodged an application for internal review. The Insurer’s internal review determination dated 7 October 2020 affirmed the original decision.
Subsequently, an Application was lodged with the Dispute Resolution Services (now the Personal Injury Commission) and the dispute has been allocated to me for determination.
The parties agreed to a determination on the papers. The matter was delayed somewhat awaiting the NSW Police file under Direction. The Insurer subsequently lodged further written submissions. Mr Suleiman’s legal representatives confirmed that no further submissions would be relied upon.
6. Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions
Claimant’s submissions
Mr Suleiman lodged an Application for Personal Injury Benefits (the Application) dated
6 February 2020. Such application included a diagram of the accident that suggests that he was riding his scooter on the footpath to the right of the Insured. The drawing suggests that the scooter did not enter the roundabout but instead was driven across the road before the roundabout. The drawing does not depict the point of impact.
The Application does not include any fulsome submissions. Instead the it is stated under ‘requested outcome’: “….the claimant asserts that the insured driver was wholly at fault of the accident and his subsequent injuries. In the alternative, the claimant asserts that the insured driver was mostly at-fault for the accident and his subsequent injuries.”
The Application includes a statement of Mr Suleiman dated 3 November 2020. Mr Suleiman states, inter alia:
“I rode the scooter east down Jardine Drive and riding on the north footpath. As
I approached the roundabout, I moved onto the road and kept riding, much like a car would, towards the roundabout. I was riding the scooter with the flow of traffic, however, there were not many cars around at the time.
As I approached the roundabout, I slowed and looked both ways before proceeding through making sure to confirm no vehicles were coming from my right but also checking no other vehicles were nearby. I proceeded through the roundabout just as a car would and it was my intention to ride straight through the roundabout continuing onto Jardine Drive.
Once I was in the roundabout, from my left, I noticed a car coming too fast for me to move out of the way. I now know this car to be driven by the Respondent driver, Erum Abidi. I do not recall seeing where the car came from but know I would not have proceeded through if I had seen the car coming especially given the car seemed to be moving too fast to safely stop.
I was struck by the vehicle at the North East corner of the roundabout still on the road and was thrown down Buchan Avenue some estimate ten metres. After I was struck, the vehicle braked and came to a stop in the South East corner of the roundabout. As the driver was braking, my scooter was dragged underneath the car and left a long white drag mark on the road so you can see how long it took the Respondent driver to come to a stop.” (sic)
The statement notes that Police attended the hospital and asked for his version of events. Mr Suleiman explains that he was a “little foggy” at the time and in pain and on morphine. He states that he told Police that he had been driving the scooter on the south footpath mistakenly.
The statement goes on to acknowledge that part of the Insurer’s decision was based on the fact that the NSW Police had held Mr Suleiman responsible and had charged him with a number of offences including: driving an unregistered registrable vehicle, driving without a helmet, driving unlicensed and not driving left of the roundabout.
Mr Suleiman asserts in his statement that he provided NSW Police with the wrong information (due to the administration of morphine) about what side of the road he was driving. He states that he understands his solicitors have made representations to the NSW Police in this regard, and it is further his understanding that the “not driving to the left of a roundabout’ charge had been withdrawn”.
Mr Suleiman also submits that the Insured driver’s version of events that she came to a complete stop, looked both ways and then entered the roundabout at 5km/h is not correct as had she given way as alleged she would have seen him and stopped. Further, it is submitted that if she were only travelling at 5km/h then she would have been able to stop much faster and he would not have suffered the injuries he did.
Insurer’s submissions and evidence generally
The Insurer’s initial submissions are dated 1 December 2020. The Insurer notes that the Ambulance report (R5) confirms Mr Suleiman admitted to cocaine use prior to the accident.
The Insurer also notes the crash summary details of the NSW Police report (R6) which state as follows:
“At about 19.20h on Sunday 29 December 2019, a Nissan X-trail was travelling south along Buchan Avenue, Edmondson Park, approaching the round-a-bout at the intersection of Jardine Avenue. A motorised scooter was travelling eastbound on southern footpath Jardine Avenue, approaching the same round-a-bout. The scooter has entered the intersection due to there being no pedestrian ramps near the intersection to cross the road.
The X-trail stopped at the intersection to allow a vehicle travelling eastbound on Jardine Avenue to cross over and travel straight through the intersection. At this point, the scooter had entered the roadway on the south side of the round-a-bout.
The X-trail proceeded to travel through the round-a-bout and collided with the scooter. As per the drag marks left on the road, the point of the collision was in the intersection close to the eastern exit of Jardine Avenue. The driver of the X-trail got out of her vehicle, contacted the Ambulance and rendered first aid until NSW Ambulance crews arrived.”
The submissions also refer to a statement of the Insured driver obtained by an investigator dated 24 April 2020. Relevantly, I note the statement states as follows:
“The traffic density was very minimal with one vehicle around at the time. There were no vehicles in front or behind me however, there was one vehicle on my right-hand side, which I gave way to at the roundabout intersection.
I was heading southbound on Buchan Ave in the lane one of one heading towards the roundabout intersection of Buchan Ave and Jardine Dr. As I approached the roundabout intersection, I slowed from approximately 45kph to a complete stop at the roundabout intersection to give way to a vehicle which was on my right-hand side and entering the roundabout from Jardine Dr. I note that I intended to continue southbound on Buchan Ave. Once the vehicle passed and exited the roundabout intersection, I conducted a further check to my right-hand side and released my foot of the brakes and then applied my accelerator to continue through the roundabout and back onto Buchan Ave. I moved a few metres forward and entered the roundabout intersection when I reached the middle of the roundabout and heard an impact. At this point, I applied my brakes despite only travelling approximately 5kph and noticed a male in front of my vehicle and then falling onto the roadway. I did not notice his scooter until I exited my vehicle.”
The driver goes on to state that she was not able to take evasive action to avoid the collision and confirms the point of impact to be the front offside bonnet. She also stated that the point of impact on the roadway was the middle of the roundabout intersection lane one southbound.
The statement mentions comments of witnesses and comments allegedly made by family members of Mr Suleiman. I have not considered such matters when making my decision as they amount to hearsay and therefore I do not consider it to be reliable evidence.
Further submissions were lodged by the Insurer dated 1 April 2021. These submissions were provided following receipt of the NSW Police file under Direction. The Insurer refers to a statement of the Insured driver provided to Police which states:
“I was approaching the roundabout. I was on Buccan to the round about at Jardine. There was a car on my right hand side so I stopped to give way. As soon as the car passed I began to go through the roundabout and then I heard a bang. I pushed my brakes and saw a man fall…did not see where the scooter came from. I stopped to give way at the roundabout. I can only presume that he was on the roundabout or came from the other side. I didn’t see him coming but I think he came over the middle of the round about because that it where he hit me.”
The Police file also includes a statement in the notebook of Mr Suleiman which states:
“I was riding east around Jardine Avenue on my scooter. I was on the footpath on the south side of the road. I went to go across the road where the roundabout is. I used the road as there is no footpath to cross at, or no ramps. I crossed halfway and stopped to look to my left. There was a car coming from my left on Buchan Avenues that turned left onto Jardine Avenue. The car behind it came straight through the roundabout and hit me.”
The Police file confirms that Mr Suleiman was charged with the following: not drive left of traffic island in roundabout; ride motorbike not wear securely fitted approved helmet; use unregistered registrable class A motor vehicle on road; Never licenced person drive vehicle on road – prior offence.
The NSW Police file indicates that Mr Suleiman attended Liverpool Local Court and pleaded guilty to the charges and was sentenced under section 10A and fined $75. It would appear that this occurred at the mention date of 15 July 2020. Whilst Mr Suleiman contends in his statement that it was his understanding that the charge of not driving left at a roundabout was withdrawn, there is no such indication in the NSW Police file that this is in fact the case. Mr Suleiman has provided no other evidence to suggest that such charge was withdrawn. In such circumstances I accept that Mr Suleiman plead guilty to such charge.
The Insurer’s further submissions contend that Mr Suleiman has provided inconsistent versions of events. In this regard, it is noted that on the day of the accident Mr Suleiman told Police he was on the south side footpath. Then on 10 February 2020, in the claim form, the diagram suggests he was on the north side footpath. These versions differ again to his subsequent statement of 3 November 2020 where he alleges he was riding on the north footpath and entered the roadway before the roundabout and entered the roundabout after looking both ways.
The Insurer submits, that in contrast, the Insured driver has provided a consistent version of events that she was travelling south towards Buchan Avenue at the roundabout on Jardine Street when she stopped to give way to a vehicle on her right before entering the roundabout.
It is submitted by the Insurer that the consistent version of events provided by the Insured driver should be preferred over the inconsistent version of events provided by Mr Suleiman.
Reasons
Having considered all the material before me I agree with the Insurer’s submissions that
Mr Suleiman has provided inconsistent version of events since the accident. I also agree that the version of events provided by the Insured driver in her statement to Police and statement to investigators is consistent.
For the above reasons, I prefer the evidence of the Insured driver and find that she was not at fault in the accident, having proceeded onto the roundabout after giving way to a vehicle to her left. I am satisfied with reference to all material before me that Mr Suleiman entered the roundabout in an unsafe manner, without due regard to his own safety and travelling in the correct direction on the roundabout. I also find that he did not keep a proper lookout, having admitted in his statement that he did not see the Insured driver.
It is noted that such finding is consistent with the findings of the NSW Police, most notably giving rise to a charge of ‘not drive left of traffic island in roundabout.’ Whilst Mr Suleiman suggests that such charge was withdrawn there is no evidence before me that would satisfy me that such a withdrawal of charge took place. Instead the evidence before me suggests that Mr Suleiman plead guilty to the charge.
For the above reasons I find that the injured person, Mr Suleiman, was wholly at fault.
Costs and Disbursements
No submissions as to costs by either party have been provided.
I find that any legal work carried out on behalf of the Claimant is minimal, given the lack of submissions. However, a signed statement of the Claimant has been provided and teleconferences were attended.
Taking into account the minimal work undertaken and the fact that I have found against Mr Suleiman I award a total of $330 for legal costs.
I am satisfied that the Claimant is entitled to the payment of legal costs.
I allow costs in the sum of $330 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.11 the motor accident was not caused by the fault of another person.
For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 29 December 2019.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $330 inclusive of GST.
[For the purposes of section 2.30 there has/ has not been due inquiry and search to establish the identity of a motor vehicle].
.
Legislation
In making my decision I have considered the following legislation and guidelines:
•Motor Accident Injuries Act 2017 (NSW);
•Motor Accident Injuries Regulation 2017, and
•Motor Accident Guidelines.
Elizabeth Medland
Member (Motor Accidents Division) Personal Injury Commission
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