Willard v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Willard v QBE Insurance (Australia) Limited [2024] NSWPIC 20
CLAIMANT:	Caroline Willard
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Bridie Nolan
DATE OF DECISION:	16 January 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment dispute as to whether claimant is wholly or mostly at fault for the motor accident; motor accident at ‘T’ intersection; dispute as to whether claimant executed left-hand turn when insured driver was already indicating her intention to merge into the kerbside lane; whether the claimant failed to keep a proper lookout; Held – claimant had completed the execution of her turn at the time at which the insured commenced merging into kerb side lane and collided with claimant’s vehicle propelling it to the left so that claimant collided with a ‘No Stopping’ sign; motor accident was not caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11, 3.28 and 3.36.
DETERMINATIONS MADE:	CERTIFICATE Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 of the Act (cessation of weekly payments after 52 weeks to injured persons most at fault or with threshold injuries) the motor accident concerned was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of ss 3.28 of the Act (cessation of statutory benefits after 52 weeks to injured adult persons most at fault or to injured persons with threshold injuries) or 3.36 (no statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was not caused wholly or mostly by the fault of the claimant. 3. Effective Date: This determination takes effect on 8 August 2022.

STATEMENT OF REASONS

INTRODUCTION

On 7 September 2022, Caroline Willard (the claimant) lodged and Application for Personal Injury Benefits in respect of a motor accident, which occurred adjacent to the T-intersection of Pacific Highway and Merriwa Street, Gordon, NSW at approximately 4.25pm on Monday, 8 August 2022.
The insurer issued a post 26-week liability decision on 1 December 2022, determining that the claimant was wholly or mostly at fault for the subject accident. An internal review of this decision was requested on 1 December 2022 in response to which the insurer issued an internal review certificate on 15 December 2022, affirming the original decision.
These proceedings concern the determination of a miscellaneous claims assessment dispute brought by the claimant under Schedule 2, cl 3 (d) and (e) the Motor Accidents Injuries Act 2017 (NSW) (the Act) as to whether she is wholly or mostly at fault for the motor accident.

BACKGROUND

The parties have competing contentions as to the way in which the accident occurred:
(a)the claimant contends that the insured merged from lane 2 (the middle lane) of the three-lanes of the Pacific Highway at the intersection of Merriwa Street into lane 1 of after the claimant had already turned out of Merriwa Street into lane 1 of the Pacific Highway and side swiped her car propelling her onto the kerb to collide with a “No Stopping” sign.
(b)the insurer contends that the insured driver had changed from lane 2 to lane 1 on the Pacific Highway 500 metres south of Merriwa Street and was travelling in lane 1 of the Pacific Highway prior to crossing the intersection with Merriwa Street when the claimant’s vehicle, thereto stationary in Merriwa Street, accelerated forward and collided with the middle-left side of the insured vehicle. The insurer concedes that if I were to accept the claimant’s version of events, the claimant was not mostly at fault for the motor accident.

MATERIAL BEFORE ME

I have read and considered the material before me comprised of the joint bundle for hearing, the material the subject of the Notice for Production issued to the claimant’s comprehensive vehicle insurer, NRMA, and the parties’ submissions. I have also reviewed in detail the transcript and recording of the oral hearing conducted by MS Teams on 4 December 2023.

Outline of the evidence

The accident occurred at the intersection as depicted by an image taken from Google Maps below:
[IMAGE UNABLE TO RENDER]
In her incident report to her comprehensive vehicle insurer, NRMA, dated 10 August 2022, the claimant said relevantly as follows:
“I had turned left out of Merriwa Street to enter the speech pathology offices. I observed a clear lane and saw the other driver in the centre lane. As I turned the corner and moved onto the highway, the driver of the other vehicle merged to turn left onto Ryde Rd and crashed into us. We were pushed off the road and up on to the footpath, landing on top of a street sign. The women [sic] exited the vehicle and explained that she didn’t know what happened as she was following a GPS. She said she saw me moving into my lane, but couldn’t explain how we had collided. … the police came to help me move off the pole and back onto the road.”
Within the incident report, the claimant drew the following diagram depicting the incident.
[IMAGE UNABLE TO RENDER]
Relevantly, in her Application for Personal Injury Benefits the claimant said as follows:
“I was travelling on the inside lane to turn into a driveway and was struck by a driver who merged into the lane and my car was pushed off the road, onto a footpath and onto a street sign at about 70kmph. The driver merged from the middle lane without checking.”
The claimant provided the following version of events in an interview with the insurer’s investigators on 7 October 2022:
“29. On the 8 August 2022 I had driven from home at Waitara and I was driving to Chatterbox Speech Therapy which is located on the Pacific Highway and Ryde Road, Gordon. I had an appointment at 4.30pm. I am familiar with location as I have been to Chatterbox four times previously.
30. I have travelled south on the Pacific Highway then turned right onto Ryde Road and then turned left onto Ridge Street and then left onto Merriwa Street. I travelled east on Merriwa Street towards the Pacific Highway. There was stop sign facing me. The traffic was medium. I waited for the left lane and middle lane on the Pacific Highway to be clear of traffic. I have come to a stop. I had a good look to my right. I turned left into the kerbside lane and continued in the lane. I didn’t get very far when I felt the car being pushed and my car moved up onto the footpath and hit a metal pole. My right wheel was sort of half on the road. The metal pole got pushed over. My airbags did not go off. The car that hit my car pulled up just in front of where my car was. Before I made my left turn onto the Pacific Highway I did see [the insured driver] coming from the right in the middle lane and I waited for her car to go past before I turned left.
31. The middle passenger side of the other car has hit the front right of my car. I would describe the impact from the other car as an eight out ten. When my car got impacted my body jolted to the left.”
In an ensuing conversation the claimant said that the insurer driver said that she was following her GPS and had to go left onto Ryde Road to get back to the Sutherland Shire. She said she did not know how it happened and she saw the claimant sitting at the stop sign, but she basically slowed down to go left down Ryde Road.
The claimant provided the following version of events in a further statement dated 12 April 2023:
“6.     I stopped at the stop sign located at the intersection of Merriwa Street and Pacific Highway, Gordon NSW waiting to turn left onto the Pacific Highway. After the [insured] vehicle … passed me, I turned left into the kerbside lane.
7.      Then as I was driving along the Pacific Highway in the left lane, the defendant merged from the right side middle lane into my lane and collided into the driver’s front side of my vehicle causing my car to verge onto the footpath and into a street sign.
8.      I exchanged details with the other driver and she said words to me to the effect of ‘I was following my GPS and had to go left onto Ryde Road to get back to Sutherland Shire’.”
In her evidence given in examination in chief at the oral hearing the claimant clarified that the insured driver was passing Merriwa Street in the centre lane when the claimant turned into the left side lane onto the Pacific Highway. She said it was clear to move into the left lane when she did. She added that she likes to wait for a person in the middle lane before she pulls out when driving with her child in the car, but on this occasion, she pulled out in circumstances where she felt it was safe to do so, while the insured driver was still passing. She said that she had turned into the Pacific Highway and straightened her vehicle and travelled more than a metre when the impact with the insured vehicle occurred.
The insured driver provided the following version of events during an interview with the insurer’s investigator on 4 October 2022:
“24. On Monday 8 August 2022 at about 4.15pm I had driven from Killara where I had been visiting a girlfriend in a nursing home and I was driving back home to Kirrawee. I was driving north on the Pacific Highway, Gordon. I was in the middle lane and I knew that I wanted to turn left onto Ryde Road, so around 500 metres before Merriwa Street I had my left blinker on as I changed into the lane closest to the kerb. There might have been a couple ahead of me. At the time, the traffic was medium and was flowing. I would have been going around 60km/h.
25.    As I was approaching the intersection of Merriwa Street I saw a small car in Merriwa Street waiting to turn onto the Pacific Highway. As I was driving along I heard a huge noise and I put the brakes on and the car stopped. I stopped around 10-15 metres past the intersection. I didn’t know what had happened. I thought I may have hit a parked car, but I saw there were no parked cars. My air bags didn’t go off.
26.    I had to watch for traffic coming from behind me before I got out of my car and I went around the front my car and onto the footpath. I saw that lady’s car was up on to footpath and the front of her car had pushed over a parking sign. I think the driver’s side wheel may have still been in the gutter. Pieces of my car were on the road and the footpath.
…
28.    I tried to get into the front passenger door of my car to get paper and pen to write the details down, but I could not open the door so I had to get in through the driver door.”
During cross examination the insured said that she had turned right from Park Road on to the Pacific Highway and travelled towards Ryde Road. As she passed Merriwa Street she saw the claimant stationary at the intersection with the Pacific Highway waiting to turn left.
She did not think that she was using GPS as she knew how to get home from Ryde Road, although she did have GPS mounted on her dashboard.
She said that she was in the left lane as she went across Merriwa Street. When asked by the insurer’s counsel in what lane she was travelling when she observed that she responded that she was in the “left lane, I would say, near the kerb “or heading to the left, heading across to the left lane.” When this evidence was revisited during cross examination the insured driver said that she was in the left lane when she passed Merriwa Street but could not recall when it was that she moved across to the left lane, as it was a long time ago and she could not remember. It was put for her that the Pacific Highway 200 metres south of Merriwa Street is only a two-lane carriage way heading north. The insured driver did not appear to be aware of that fact. Indeed, I interpolate that upon turning right out of Park Avenue, the insured driver would have turned into a two-lane carriageway on the Pacific Highway heading north. The Pacific Highway became three lanes about 50 metres north thereafter at the intersection with McIntyre Street.
When asked if she was familiar with the area, she said she was not. When asked if she was using a GPS at the time, she said she did not think she was as she knew needed to turn right onto the Pacific Highway and left onto Ryde Road and she knew her way home from there but could not say if she was using her GPS before she turned right onto the Pacific Highway.
She was asked by the insurer’s counsel about hearing a huge noise and in what lane she was in when she heard that noise. She responded that she was in the third lane, the left land closest to the kerb. She said that she saw the claimant’s stationary at Merriwa Street as she passed car prior to hearing the loud noise. I interpolate that she this must have only been for a split second as she maintained that she was travelling at a speed of 60kmph.
In cross examination she said that upon hearing the noise, her immediate thought was that she had hit a parked car. It was put to her in cross examination that if she were in the left lane, she would not have thought she hit a parked car, she would have known that she did as she would have seen it in front of her. It was also put to her that she could only have thought she had hit a parked car because she was merging into the left lane at the time of the impact. Her responses were somewhat non-responsive, she restated her evidence that she was in the in the kerbside lane before passing Merriwa Street. When it put to her directly in cross examination that she had side swiped the claimant’s vehicle, she responded, “I was just driving down the road and I heard that great noise and I’ve stopped the car”. When it was put to her that she was not sure what happened, she responded “I’m fairly sure what happened, yes…which I’ve just stated.” I interpolate at this juncture that the insured driver said that it was apparent that her distinct recollection was that she thought she had hit something rather than it being that her vehicle had been hit.
When asked about the damage to the claimant’s car she said that the claimant had mounted the kerb and hit the “parking sign”.
The damage to the insured vehicle is depicted in the following photographs:
[IMAGE UNABLE TO RENDER]
The damage to the claimant’s vehicle is depicted in the following photographs:
[IMAGE UNABLE TO RENDER]

Expert evidence

Both parties engaged crash investigation experts.
Adjunct Associate Professor Robert Anderson prepared a report dated 22 June 2023 (the Anderson Report) wherein he considered the versions of events provided by the parties in their statements to the insurer’s investigators, the claimant’s April statement and examined photographs of the respective vehicles. He did not have the benefit of the oral evidence of the parties.
Of the damage to the claimant’s vehicle, he observed that the damage was located around the front right corner of the car. There were grey-coloured horizontal scratch marks on the front bumper cover. The front bumper cover was also fractured, and the right corner appears to have been dislodged near the front right wheel. The front headlight cover was damaged, the front lower fog lamp was missing, and the wheel arch was deformed.
Of the damage to the insured’s vehicle, he observed that on the vehicle’s front and rear passenger side doors there was lateral (inward) deformation. There was obvious deformation on the back edge of the front door and the front edge of the rear door. The lower garnishes on both doors were missing. The damage included horizontal scratch marks and a tear through the sheet metal of the front passenger door near the rear seam. The damage on the back passenger door included more pronounced deformation. A linear focal score contained blue material transfer, which he opined was likely from the claimant’s vehicle. There was a smaller area of focal damage below the fuel filler cover on the rear wheel arch. The damage on the front edge of the back passenger door in this area consisted of localised deformation and tearing. He opined that the damage appears to have been a continuation of the damage to the rear edge of the front door and is highly suggestive of snagging between the two vehicles during the impact.
He concluded that the damage to the vehicles indicated that the vehicles’ configuration at the point of collision was such that the front right corner of the claimant’s car hit the side of the insured vehicle at an oblique angle. Moreover, the location of the damage to the side of the insured vehicle indicated that the claimant’s vehicle had forward speed at the moment of impact. He concluded that the damage to the insured vehicle is consistent with typical side impact damage with a degree of side-swipe damage. He opined that it is likely that the damage to the doors of the insured vehicle at the base of the B-pillar can be related to the fracture of the right corner of the claimant’s bumper cover. Given the pattern of this damage, he opined that it is likely that the end of the front bumper reinforcement on the claimant’s vehicle snagged in the seam between the two doors. This reinforcement is constructed of folded sheet metal with sharp ends. It is positioned behind the bumper cover and attached to the vehicle’s side rails, with the sharp ends just below the headlight in the vicinity of the fracture to the claimant’s bumper cover. He opined that the height of the damage around the B-pillar of the insured vehicle appears to align with the height of the reinforcement.
In his opinion, the damage to both vehicles indicates that the right portion of the claimant’s front bumper struck the front door and B-pillar of the insured’s vehicle, exposing the end of the reinforcement, which snagged on the front edge of the rear door. In his opinion, the location of the damage on the claimant’s vehicle further indicates that when the collision occurred, the vehicles were oblique to one another, and the corner of the claimant’s vehicle struck the side of the insured’s vehicle. He depicts the collision as follows in his report as Figure 8.
[IMAGE UNABLE TO RENDER]
He observed that the right fender of the claimant’s vehicle was also damaged over the right front wheel arch. He opined that two areas of damage to the fender are likely relevant to the subject collision. The first area is the deformation around the rear half of the arch. In his opinion, this was likely to be either induced damage caused by the frontal collision forces buckling the panel or damage from secondary contact with the insured vehicle. The second area is a series of lighter scores over the front half of the arch. These scores, and any secondary contact, he opined could likely be explained due to the dynamics of the collision: he opined that the impact and snagging probably pulled the claimant’s vehicle left, rotating it, plausibly bringing the fender into contact with the rear half of the left side of the insured vehicle. In support of this, he noted a discreet area of damage above the rear left wheel arch on the rear quarter panel of the insured vehicle.
He used a PC crash simulation to check whether the crash configuration was consistent with the claimant’s vehicle having proceeded to mount the kerb and hit the pole. The speed of the claimant’s vehicle was set to 20kmph, and the insured vehicle to 60kmph. These speeds were assumed but were considered reasonable, given the location of the crash and the level of deformation to the insured vehicle. The results of the PC crash simulation is shown in the image reproduced below. The vehicle models are shown in collision configuration, and the subsequent path of the claimant’s vehicle is also shown. In the Adjunct Associate Professor’s opinion, the simulation shows that the collision circumstances he proposed are consistent with the claimant’s vehicle being deflected to the left, mounting the kerb, and striking the pole.
[IMAGE UNABLE TO RENDER]

He opined that the claimant’s version that she stopped and waited for the insured car to pass and then travelled a short distance on the Pacific Highway before the collision was not able to be reconciled the vehicles’ configuration at the moment of impact or the subsequent interaction with the signpost with this version of events.
He opined that there are further reasons that the claimant’s version of events is implausible. It was the evidence of both parties that the speed of the insured vehicle was either 60 or 70kmph. It would not have been physically possible for the claimant to successfully wait for the insured vehicle to pass at this speed (as the claimant asserted), catch up with the insured vehicle, and collide with it before reaching the signpost. It takes approximately four seconds and 35 metres to attain a speed of 60kmph from stationary whilst accelerating at four meters per second squared. Thirty-five metres is well beyond the position of the signpost struck by the claimant.
In his opinion the circumstances indicate that the claimant likely accelerated from Merriwa Street before the insured vehicle had reached the intersection, with the collision occurring near the intersection as depicted below.
[IMAGE UNABLE TO RENDER]
He included in his report a Google image of the Pacific Highway in a southerly direction, which appears below. Based on this image, he opined that the claimant ought to have had a clear view of the insured vehicle approaching. He noted that an evaluation of other Google Street view images showed that the bus stop sign had been replaced by one with a smaller profile before June 2022 and hence before the subject collision in August 2022.
[IMAGE UNABLE TO RENDER]
Grant Johnston, was asked to review the Anderson Report. In his report sets out the material that he examined which were:
(a)    statement of claimant;
(b)    Personal Injury Claim Form;
(c)    insurer’s post 26 week liability letter;
(d)    photographs of the claimant’s vehicle;
(e)    email from NRMA regarding waiver of excess;
(f)    claimant’s submissions;
(g)    insurer’s submissions;
(h)    insurer’s investigator’s report;
(i)    Anderson Report, and
(j)    photograph of insured vehicle.
He includes Google images (below) of the of the Pacific Highway in a northerly direction depicting the relevant T intersection to the left of the image.
[IMAGE UNABLE TO RENDER]
Mr Johnston considered the images of the damage to the vehicles and remarked that there is no dispute that the damage to the insured vehicle was to its left side, so that area of the vehicle obviously came into contact with the claimant’s vehicle. He remarked that the claimant’s vehicle had damage to the right end of the front bumper, under the headlight, which in his opinion would support the insured’s version if taken in isolation, but there is also contact damage to the claimant’s vehicle’s front right mudguard at least extending back to the leading edge of the driver’s door. This in his opinion suggests that the contact with the insured’s vehicle must have been at a shallower angle than suggested by the Anderson Report. In his opinion this damage suggests that the impact was predominantly more of a side-swipe type impact across the front right quarter panel, with the left side of the insured’s vehicle making contact with the front right of the claimant’s vehicle with the insured’s vehicle moving from right to left across the path of the claimant’s vehicle.
He observed that the claimant’s suggestion that she did not turn until the insured vehicle had completely passed her makes no sense for any scenario as clearly if that was the case there could be no impact between the two vehicles. He remarked that there clearly was an impact so under any scenario the claimant had to have started turning whilst the insured vehicle was still some distance south of the subject intersection.
He depicted the alignment he considered is suggested by the damage to the vehicles as follows:
[IMAGE UNABLE TO RENDER]
He was critical of the Anderson Report for what he considered to be a one-sided focus on the insured’s version of events. He remarked that the Anderson Report failed to consider any other possibility which might also fit with the known secondary impact and rest position of the claimant’s vehicle. He opined however there is no suggestion that this sign was struck by the claimant’s vehicle nor is there any damage to the left front corner or left side of her vehicle which corresponds to impact with this signpost. It was therefore his opinion that the scenario as proposed by the Anderson Report is simply not feasible based on the absence of any impact with this signpost. In addition, he was of the view that the proposed scenario was also not consistent with the damage pattern of the two vehicles, but, in particular, the front right side of the claimant’s vehicle did not sufficiently match the impact configuration proposed by the Anderson Report.
Mr Johnston conducted a further simulation using the Virtual Crash 5 simulation program based on the claimant’s suggestion that she started to turn out and was impacted by the insured vehicle whilst it was allegedly changing lanes from lane 2 to lane 1. It is therefore his opinion that the insured vehicle changed lanes to its left (from lane 2 to lane 1) not 500 metres before the intersection but rather it was around the location of the intersection and as a result the left side of the Toyota collided with the front right corner of the Ford Fiesta as it was turning left into the vacant number one lane of Pacific Highway.
The diagram below shows the results of this simulation which Mr Johnston considered to be a reasonably likely alignment of the vehicles at impact to account for the damage to the two vehicles.
[IMAGE UNABLE TO RENDER]
Mr Johnston observed that the insured’s vehicle would have been travelling at a much faster speed than the claimant’s so its movement across the claimant’s vehicle would have been quick as there was no major snagging of panels. As the insured’s vehicle made contact with the claimant’s it would have pushed the Ford to the left onto the southern footpath of Pacific Highway, where it collided with the “No Stopping” sign pole.
Mr Johnston further commented on Adjunct Associate Professor Anderson’s assumption in his analysis that the claimant’s speed was 20kmph at impact in his simulation. Considering that this vehicle had started from stationary and that the impact would have occurred on his scenario within approximately one metre of the stop line on Merriwa Street, it is not possible that the claimant’s vehicle could have been travelling at that speed within one metre of travel. He noted that if the impact speed was not 20kmph then it further affects the simulation such that it is unlikely at a different speed that the claimant’s vehicle would mount the footpath and collide with the sign pole.
It was his opinion that his alternative simulation was consistent with the physical evidence and was therefore a far more likely than the scenario presented by the Anderson Report.
In response to Mr Johnston’s report, Adjunct Associate Professor Anderson stated that an important consideration for positing the scenario he did was the snagging between the vehicle, as evidenced by the focal deformation of the rear passenger door of the insured vehicle, which, in his opinion, could only be satisfactorily explained by an interaction with the end of the claimant’s bumper reinforcement. Combined with the horizontal scratch marks across the vehicle’s front corner, he opined that it is clear that the angle between the vehicles could only have been similar to that shown in his report. He noted that because of the relative speed between the vehicles, the presence of horizontal scores on the claimant’s vehicle is important evidence of the point of collision, and the point of collision he nominated, he opined, is the only area of the vehicle exhibiting these marks.
With respect to Mr Johnston’s focus on the damage to the lateral aspect of the claimant’s fender panel, the Adjunct Associate Professor agreed that while this could indicate some damage due to contact with the insured vehicle, it did not have the appearance of primary side-swipe damage. He reiterated his view that the lateral fender damage might indicate secondary contact between the vehicles, noting that the collision would have rotated the claimant’s vehicle anti-clockwise, potentially bringing the vehicles more parallel.
He agreed that Mr Johnston’s interpretation of the pattern of damage at and below the headlight as pole damage was plausible. He noted that he also considered this possibility but that it was his view that the pole impact damage might be superimposed on the primary impact damage. He repeated his opinion that the probable interaction between the end of the bumper reinforcement on the claimant’s car and the B-pillar area on the insured vehicle was important and indicated that the contact must have been sufficiently oblique to cause this engagement.
He noted a further consideration being the angle at which a vehicle would be expected to exit Merriwa Street. He considered that the illustration of the vehicles interacting almost parallel to one another at the exit of Merriwa Street, adopted by Mr Johnston, implausible. He considered it is highly improbable that a vehicle turning out of Merriwa Street could adopt such a position.
He stated that his purpose was to examine each version as described by each party, and the simulation was used to check the consistency of the insured’s version with the physical evidence in circumstances where he considered the claimant’s version implausible. That is, he considered that it would not have been physically possible for the claimant to successfully wait for the insured vehicle to pass at a speed of 60 or 70kmph, catch up with the insured vehicle, and collide with it before reaching the signpost. For this reason, he did not simulate the circumstances described by the claimant.
The Adjunct Associate Professor commented on a central argument in Mr Johnston’s report that he failed to consider the presence of a second pole being a street sign for Merriwa Street in the nature strip. It was his assessment that the simulation produced implied a collision with that street sign. Mr Johnston relied on Figure 10 in the Anderson Report to make this assessment. The Adjunct Associate Professor noted that the location of the street sign is not clear in that image. He remarked that Mr Johnston’s assessment of his simulation is not correct – the path of the vehicle in my simulation does not intersect with the Merriwa Street sign, rather the “No Stopping” sign, as depicted in the images below.
[IMAGE UNABLE TO RENDER]

SUBMISSIONS

Insurer’s submissions

In written supplementary written submissions, the insurer submitted that the damage to the vehicles indicates that the front right corner of the claimant’s vehicle collided with the side of the insured vehicle at an oblique angle, and that the claimant’s vehicle was moving forward at the moment of impact (paragraph 6.4, page 205 of the joint tender bundle).
The claimant’s version of events that she had stopped and waited for the insured vehicle to pass her before she joined the traffic on the Pacific Highway, and that she travelled a short distance after joining the Pacific Highway before the collision (paragraphs 6 and 7 of her statement dated 12 April 2023, page 4 of the joint tender bundle), is not consistent with:
(a) the “vehicles’ configuration at the moment of impact or the subsequent interaction with the signpost” (figure 10, page 209 of the joint tender bundle), and
(b) the crash simulation performed by Adjunct Associate Professor Anderson (paragraph 7.8, page 210 of the joint tender bundle).
The insurer relies on the opinion of Adjunct Associate Professor Anderson in that it was not physically possible for the claimant to successfully wait for the insured vehicle to pass at the speed of 60 or 70kmph, to then catch up with the insured vehicle and collide with it before reaching the signpost as it takes “approximately 4 seconds and 35 metres to attain a speed of 60 kph from stationary whilst accelerating at 4 meters per second squared. Thirty-five metres is well beyond the position of the signpost struck by the claimant” (paragraph 7.9, page 210 of the joint tender bundle).
The insured driver’s version of events is consistent with the damage and the final resting positions of the vehicles.
No weight should be given to the opinion of Mr Johnston in paragraph 7.4 of his report (page 56 of the joint tender bundle) due to the following:
(a) Adjunct Associate Professor Anderson considered the version of events of the claimant and the QBE driver (pages 200 and 201 of the joint tender bundle), and
(b) Adjunct Associate Professor Anderson considered the damage to the lateral part of the fender panel of the claimant’s vehicle in paragraph 6.8 of his report dated 23 June 2023 (page 207 of the joint tender bundle).
In response to the opinion of Mr Johnston in paragraph 7.6 of his report dated 21 August 2023 (page 57 of the joint tender bundle), the insurer refers to the supplementary report of Adjunct Associate Professor Anderson where the Adjunct Associate Professor provided the following opinion:
(a)    “The probable interaction between the end of the bumper reinforcement on the claimant’s car and the B-pillar area on the insured vehicle is important, and indicates that the contact must have been sufficiently oblique to cause this engagement” (page 227 of the joint tender bundle);
(b)    “A further consideration is the angle at which a vehicle would be expected to exit Merriwa Street. Mr Johnston illustrates the vehicles interacting almost parallel to one another at the exit of Merriwa Street. He placed the claimant’s vehicle almost parallel to the stop line at the intersection. This configuration is implausible — it is highly improbable that a vehicle turning out of Merriwa Street could adopt such a position” (page 227 of the joint tender bundle).
(c)    In response to the opinion of Mr Johnson in paragraphs 7.10 and 7.11 of his report dated 21 August 2023 (pages 58 and 59 of the joint tender bundle), it is submitted that Adjunct Associate Professor Anderson was not required to provide an opinion as to alternative causes of how the motor accident occurred. He was asked to provide a simulation and reconstruction based on the evidence, and to assess the consistency of the version of events of the claimant and the QBE driver with the damage to the vehicles involved in the motor accident;
In response to the opinion of Mr Johnston in paragraphs 7.12 to 7.15 of his report dated 21 August 2023 (pages 59 and 60 of the joint tender bundle), it is submitted that the path of the claimant’s vehicle in the simulation performed by Adjunct Associate Professor Anderson does not intersect with the street sign, as noted in paragraphs 8.1 to 8.5 of the supplementary report of Adjunct Associate Professor Anderson dated 17 October 2023 (pages 229 to 232 of the joint tender bundle);
The claimant’s evidence that she had stopped and waited for the insured vehicle to pass her before she joined the traffic on the Pacific Highway, and that she travelled a short distance after joining the Pacific Highway before the collision occurred ought to be rejected;
The simulation prepared by Adjunct Associate Professor Anderson is consistent with the physical evidence, and that no weight should be given on the opinion made by Mr Johnston in relation to the trajectory concerning the “Merriwa Street” sign.
The insurer maintains that the claimant was wholly at fault for the motor accident.

Claimant’s submissions

In the claimant’s written submissions, she submitted that the insured driver merged from the right-side middle lane into the claimant’s lane after the claimant had already turned onto the Pacific Highway.
The insured driver therefore failed to give way and failed to drive with due care and skill, to check that it was clear before changing lanes, causing a collision with the claimant. The insured driver ought to have slowed down and taken greater care before changing lanes. This would have avoided the subject collision and avoided the foreseeable risk of injury to other motorists. The insured driver was not paying attention to the road and her surroundings. The collision occurred due to the insured driver’s failure to give way and merging lanes when there was neither time nor space to do so.
The damage to the claimant's vehicle (being to the right front side) corroborates the claimant's version of events that the defendant vehicle collided into her whilst merging from her right side.
The claimant lodged a property damage claim with her insurer, NRMA who determined that the claimant was not at fault and refunded the excess initially charged on the claim.
The claimant repeated the effect of these written submissions orally.

REASONS

Having considered the material before me, and in particular reviewing the recording of the oral hearing together with the transcript of that hearing, I am persuaded that the collision occurred as follows.
The insured driver was relatively unfamiliar with the area in which the accident occurred, but sufficiently familiar with the stretch of road on the Pacific Highway, where the accident occurred to know that she needed to turn left on to Ryde Road to make her way home to Kirrawee. It is uncontroversial that she turned right from Park Avenue, either merging into or turning into the furthest of the two lanes of the Pacific Highway, which was at that time lane 1. This accounts for her recollection that she had merged into lane 1, 500 metres prior to Merriwa Street. Although I note that Park Avenue is only some 250 metres south of Merriwa Street, this discrepancy is, in my view, immaterial. The insured continued in that furthest lane, being lane 1 as it became lane 2 after McIntyre Street.
Thereafter, the insured driver did not merge into lane 1 of the three lanes of the Pacific Highway until after she passed Merriwa Street. I am persuaded that this what occurred by the fact that the claimant, whose oral evidence was clear and consistent on this point, observed the insured driver to be in lane 2 (the middle lane) before she pulled out to make her left-hand turn. It was a consistent and persuasive feature of her oral evidence that she had seen the insured vehicle approaching in the middle lane and as the insured vehicle was passing her but had not completely passed her, she chose to commence the execution of her left-hand turn.
While the perceived discrepancy between her written evidence and her oral evidence was the subject of some robust cross examination, I am not persuaded that the claimant did change her evidence, but, rather, she clarified it.
In her statement to her comprehensive insurer, NRMA, she said only two days after the accident that “[a]s [she] turned the corner and moved onto the highway, the [insured driver] merged to turn left onto Ryde Rd and crashed into us.” In her statement to the investigator there is no mention of when she commenced the turn. The claimant’s statement contains the following phraseology relevant to the timing of the turn’s execution; “After the [insured] vehicle … passed me, I turned left into the kerbside lane”. The statement is somewhat inchoate in that it does not clarify what she meant by “passed”, however, it is not inconsistent with the clarification the claimant gave orally. The difference between the clarification given during her oral evidence that which is recorded by the insurer’s investigator, and in her statement, can be explained by what I consider to be a semantic incongruity.
I am persuaded by the claimant’s evidence that she had completed the execution of her turn at the time at which the insured commenced merging into lane one and collided with her vehicle propelling it to the left so that she collided with the No Stopping sign.

In this scenario the claimant had the right of way, and the insured driver was at fault for failing to give way to the claimant who occupied lane 1, albeit only momentarily, before merging.
My findings are informed by these further matters:
(a)    first, the insured driver (doing the best she could) did not have a clear and consistent recollection of the events and was left with the impression which she stated several times throughout her written and oral evidence, that she passed Merriwa Street and then she hit something, she thought a parked car. This sensation that she hit something – a parked car – was the consistent subject of her evidence, and is to be compared with the sensation that something had hit her;
(b)    second, it was not put to the claimant, nor is it clear, how it could have been, that she did not look to her right and detect the presence of the insured vehicle in the inside lane or that she saw the vehicle and proceeded to execute the turn despite the presence of the vehicle in the lane. As the claimant’s counsel correctly points out in his oral submissions, there is no evidence in any of the insured’s statements or in her oral evidence that she had her left-hand indicator illuminated. I am satisfied that the explanation for this is that she believed that she had merged into the inside lane some 500 metres earlier. Accordingly, it was not put to the claimant, in the alternative, or at all, that she seen the insured’s indicator light illuminated and nonetheless executed the turn. Had this been the case there certainly would be an argument open to the insurer that she had failed to take reasonable steps for her own safety. However, for the reasons I have set out above, I am not satisfied that this was the case, and I am persuaded that the insured did not have her indicator lights illuminated at the time prior to and at the time at which she merged;
(c)    third, this scenario is consistent with the experts’ analysis of the photographs. Both experts discounted claimant’s version because they understood it involving her having stopped and waited for the insured car to pass completely, and as such, not able to be reconciled the vehicles’ configuration at the moment of impact or the subsequent interaction with the signpost. Neither conducted an analysis of the scenario as I have found it. Nevertheless, both agreed that the location of the damage to the side of the insured vehicle was indicative of the claimant’s vehicle having forward speed at the moment of impact. The damage to the front right corner of the claimant’s vehicle is consistent with it being was hit by the side of the insured vehicle at an angle, which was neither parallel or at right angles to the line of the insured’s vehicle, that is at a slanted or oblique angle about which Anderson Report spoke. The fact that the insured driver felt she had collided with a parked car that effectively came out of nowhere suggests that the claimant’s vehicle was straightened when she merged into lane 1. Grant Johnston represented the angle of the collision most closely to how I perceive it would have occurred based on the facts as I have found them, albeit I consider that the deformation on the insured vehicle can be explained by the insured’s vehicle being slightly more advanced in time than depicted by Mr Johnston. That is, the focal point of the impact was located at the insured vehicle’s passenger side B-pillar.
It remains to be considered, as was raised orally in submissions by the insurer, whether by commencing the execution of the turn in circumstances where the insured vehicle was in lane two and had not completely passed Merriwa Street constituted a failure by the claimant to take reasonable steps for her own safety. While a finding to this effect may have been theoretically open, I am not satisfied that the alternative facts were sufficiently explored by the insurer in cross examination for me to consider and, confidently make this finding. To be confident that the claimant had failed to take reasonable steps for her own safety the issue of whether the insured’s indicator was illuminated needed to be fully explored, as did the claimant’s assessment of the speed at which the insured vehicle was travelling at the time that she executed the turn, the state of the traffic, whether it was heavy or light, and the basis for the claimant’s belief that it was safe for her to execute the turn when she did. Further, even if I were to make this finding, I am not persuaded that this putative failure carried any of the necessary causal potency for the accident because I am satisfied that the claimant had successfully executed a complete turn and had straightened her vehicle when the collision occurred.
Accordingly, I am not persuaded that the claimant was at fault for the accident.

COSTS

The claimant seeks costs.
I have had regard to the schedule prepared by the claimant to support her application and note that it is predicated on a misapprehension as to how costs in miscellaneous assessment dispute matters are regulated. Schedule 1, Part 1, cl 3 (1) provides that the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim). Both sub-clls 3 (2) (d) and (e) apply entitling the parties to 24 monetary units each.
The claimant makes a claim for exceptional costs for professional and counsel’s fees submitting under s 8.10(4) of the Act as was discussed in AAI Ltd Trading as GIO v Moon [2020] NSWSC 717 (Moon) at [97]. There the Court observed that constraints and powers arising from s 8.10(4) were designed to deal with “particular, unusual situations where the maximum costs fixed by the regulations may not be adequate” as some cases may be exceptional “because the involved an unusual degree of factual or legal complexity or for some other reason, and this required the incurring of more substantial legal costs by a claimant.”
The claimant submits that a significant degree of further time and work was required to prepare the matter for assessment of liability and therefore, exceptional circumstances exist in this matter to warrant payment of exceptional costs, including but not limited to, the following:
(a)    review of the insurer’s decision for denial – 20 units;
(b)    conferences with claimant – 30 units;
(c)    preparing Brief to counsel and participating in at least three conferences with counsel – 30 units;
(d)    consulting and conferring with a crash reconstruction expert – 5 units;
(e)    Ms Rita Furfaro, special counsel, was the solicitor with carriage of this matter until September 2023 before Ms Tanya To, special counsel took over carriage. The applicable hourly rate is $660 + GST;
(f)    Ms Furfaro and/or Ms To attended to all the above matters, except for the preparation of the brief to counsel, which took approximately 4 units. This was prepared by a secretary, whose hourly rate is $200 + GST. The brief was reviewed by Ms To (1 unit) prior to it being sent out, and
(g)    as such, the claimant’s claims professional costs as follows:
(i)81 units x $57 (per unit) + GST = $4,617 + GST
(ii)4 units x $27.50 (per unit + GST = $110 + GST

Total = $4,727 + GST.

The claimant further submits that it was not only necessary to brief counsel, but that counsel was also required to undertake a significant amount of work and preparation for the matter, as outlined in his tax invoice, noting the complexity of the matter. It is submitted that counsel’s full costs ought to be awarded in the amount of $11,166.67 + GST. Therefore, the total amount of costs and disbursements claimed by the claimant Total: $33,236.66 + GST and are as follows:
(a)    regulated costs and disbursements – $17,342.99 + GST;
(b)    exceptional costs – $4,727.00 + GST, and
(c)    counsel’s fees – $11,166.67 + GST.
The insurer also seeks an order under s 8.3(4) of the Act relying on Moon at [127]-[128] permitting the payment of the insurer’s solicitors reasonable and necessary legal costs incurred in connection with this dispute, including counsel’s fees.
The insurer relies on the following factors:
(a)    the factual dispute requiring the engagement of motor accident liability experts;
(b)    the work involved the preparation of written submissions addressing the evidence;
(c)    the preparation in connection with the hearing, including witness preparation and oral submissions, and
(d)    the issues were of such complexity that the insurer was represented by experienced counsel at the hearing.
A hearing was required, as opposed to the proceedings being determined on the papers.
In my opinion, this case involved a factual complexity occasioned by the two competing version of events. The insurer’s engagement a liability expert, to which the claimant was justified in responding, was not unreasonable. This was a hearing that required counsel’s assistance and an oral hearing, which proved necessary to clarify the evidence. These factors justified the incurring of more substantial legal costs than the regulated costs would cover, and I would permit the payment of those legal costs to the insurer’s representatives under s 8.3(4) of the Act.
However, the statutory discretion to award costs to the claimant in excess of the regulated costs arises in circumstances where the claimant has incurred costs; that is, the claimant becomes liable to pay costs and her legal representatives have become entitled to be paid and recover those legal costs in accordance with the Legal Profession Uniform Law and other relevant legal principles. As the language of s 8.10(4) makes plain, this is a statutory precondition to the exercise of my discretion. Therefore, at a minimum, I must be satisfied that the claimant has entered into a fee arrangement with her representatives, which means that the costs claimed have been incurred and that the claimant is liable to her legal representatives to pay those costs. I have not been furnished with that evidence. I am nonetheless minded to permit the claimant the opportunity to furnish me with that evidence within 21 days of the publication of these reasons.
And I DIRECT:
(a)By no later than 6 February 2024, the claimant is to produce to the Portal any material upon which she intends to rely in respect of her exceptional costs application to demonstrate that the legal costs claimed have been incurred for the purposes of s 8.10(4) of the Act.

[2024] NSWPIC 20

16 January 2024