Woodward v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 749
•21 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Woodward v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 749 |
| Claimant: | Glenn Woodward |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Elizabeth Medland |
| DATE OF DECISION: | 21 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether the claimant was mostly at fault for the accident pursuant to sections 3.11 and 3.28; claimant was the rider of a motorcycle who attempted an overtaking manoeuvre on a Ford Ranger on a rural road; the Ford Ranger attempted to turn right at the gate of a rural property, causing a collision; claimant travelling with two friends also riding motorcycles; insured driver had two passengers; witness evidence involved conflicting versions of events, question of whose evidence is preferred; Held – the insured was wholly at fault by failing to keep a proper lookout and failing to indicate intention to turn right at a reasonable juncture; claimant had no opportunity to avoid the accident; evidence of two other motorcyclists preferred over the passengers of the insured vehicle, owing to their vested interest in observing the movements of the insured vehicle leading up to the collision; regulated costs awarded. |
| determinations made: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person. 3. Effective date: This determination takes effect on 3 August 2021. 4. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,800 plus GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
This determination relates to a dispute between the parties as to whether the injured person is mostly at fault pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act2017 (MAI Act):
Background
Mr Glenn Woodward (the claimant) is a 61 year old male (born in 1961) who suffered injury as a result of a motor vehicle accident occurring on 27 February 2021. The claimant was the rider of a motorcycle along Bucketts Way, Stroud Road when a collision occurred when the claimant was in the process of overtaking the insured vehicle, a Ford Ranger. There is a dispute as to the precise circumstances of the accident which is discussed in detail below.
An application for personal injury benefits (claim form) was lodged with the insurer of the Ford Ranger on 30 March 2021.
By way of a revised liability notice dated 3 August 2021 the insurer denied liability for ongoing statutory benefits after 26 weeks on the basis that the insurer determined the claimant to be wholly at fault for the accident.
An internal review was lodged with the insurer by the claimant’s legal representatives.
In an internal review certificate dated 27 August 2021 the insurer affirmed the original decision.
The claimant’s legal representatives subsequently lodged an application with the Personal Injury Commission (Commission). The matter has been allocated to me for assessment.
I have held one teleconference in this matter wherein the matter was set for an assessment conference. That conference occurred on 8 November 2022 via Microsoft Teams.
Documents considered
I have considered the documents provided in the application and the reply and other material from both parties.
Legislative Framework
Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2, cl (3)(d) & (e) of the MAI Act, a dispute relating to s 3.11 and
s 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
Circumstances of the accident and summary of evidence
NSW Police documentation
A NSW police force report notes a reporting date of 28 February 2022, the day after the accident. The report notes that the police held the claimant to be responsible. The following relevant “crash summary details” are included in the report:
“About 4.00pm on Sunday the 28th of February, 2021; Madalyn FOOT was travelling South on the Bucketts Way, Stroud Road in her White Ford Ranger utility bearing NSW registration M*****. At this time, Glen WOODWARD was following FOOT on his black Kawasaiki motor bike bearing NSW registration Z****. FOOT has slowed and attempted to complete a right-hand turn into a gravel rest area on the shoulder of the road way. WOODWARD has failed to observe FOOT’s indicator, and moved onto the opposite side of the roadway in order to overtake. FOOT has commenced her turn, causing WOODWARD to apply his brakes harshly. WOODWARD was unable to stop and collided with the driver’s door of FOOT’s vehicle.
…”
The insurer commissioned a factual investigation of the matter and investigators, AHC Investigations in their report dated 30 April 2021, indicate that a request was made to interview the attending police officer, however, was declined by the NSW Police on the basis that the investigation as to the circumstances of the accident were continuing.
Whilst investigators indicate in their report that they would make a further application to interview the officer once the police investigation was finalised. There is no material before that indicates whether such an application was ever made.
The claimant’s evidence
In his claim form dated 30 March 2021, the claimant does not include a version of events, and instead asks that the insurer refer to the provided police event number.
Signed statement of the claimant dated 2 March 2022
The statement notes the claimant has been riding motorcycles for around 44 years.
On the day of the accident the claimant decided to go riding with friends of his, David and Elaine Williams, whom he has known for around 40 years. The claimant explains the trip was an enjoyment ride. Taking off from at around 10.30-11.00am. At around 3pm the claimant and the Williams’ were travelling along Bucketts Way from Gloucester, where they had taken a break.
The claimant was riding his 2017 Kawasaki Z900 motorcycle. He explains that as a safety feature of the motorcycle the headlight is always on whenever the bike is running.
He remembers the speed limit on the relevant stretch of Bucketts Way to be “around 90km/h”. The conditions and roadway are described as good.
When in an area of double white lines, the claimant noticed a ute in front of him that was travelling slower than the 90km/h speed limit. He noticed the ute had a toolbox or something similar that was placed across the back rear window. He remembers thinking that the driver would not be able to use their rear vision mirror due to same.
He travelled behind the ute for a short period of time and estimates he was behind it for “half a kilometre (500 metres) or so”.
From paragraph 23 the claimant states:
“We then came into an area of broken lines. I remember seeing the Ute in front of me veer more towards the left-hand side of the road and slow down, almost as if they were looking for somewhere to the left to pull off to, but there was nowhere safe for them to do so. Their tyres did not leave the road.
I estimate the Ute was travelling at 40km/h around this time.
There was probably a 30 metre gap between myself and the back of the Ute at that point, but I may have been closer. I was also on the right side of the left lane. Part of riding a motorcycle safely is sticking to a side, not riding in the middle of the road.
Due to the slowing of the Ute to less than half the signposted speed limit, the appearance that they were going to pull off to the left-hand side and there being no visible indicators on the Ute, I decided to overtake the Ute. To me, this was safer than travelling behind a car going less than half the signposted speed.
I also could see there was no oncoming traffic for the 400 meters or so that was visible in front of me.
I put my right-hand indicator on and moved into the right-hand lane. I sped up to overtake the Ute, my bike would have increase in noise as I was speeding up. [sic]
At no point while behind the Ute did I see any indicators on.
As I pulled up beside the Ute while in the right-hand lane, I saw their right-hand indicator had turned on. As I was next to the car on the right-hand side overtaking at this time, I could see it on the door and the front indicator light. When the indicator turned on, I was near the rear door of the car.
I would estimate that at this time I may have been travelling 20km/h faster than the Ute in an attempt to overtake.
I attempted to break and take evasive action. The area on that side of the road was dirt and I didn’t believe this to be a safe area to attempt to stop in, as there was a barbed wire fence not too far from the road that I knew I was at risk of hitting. I did veer as far right as possible, to the point I was almost in the dirt on the right-hand side of the road.
Almost as soon as I saw the indicator, the driver of the Ute turned 45 degrees to turn into the property located at 951 Bucketts Way, Stroud Road
I impacted the rear right-hand door. I did not hit the door square on, as she was turning on a 45 degree angle. I estimate I was probably travelling 60km/h when I impacted the car.”
The claimant goes on to explain that he is amnesic to the post accident events, but remembers some events.
He further notes that the motorcycle was fitted with a dashcam, however, due to the length of the trip taken by the party the battery had gone flat. He states that he regrets “this immensely as I know that footage would prove I did nothing wrong”.
Signed statement of Dave Williams dated 28 April 2021
This statement and the statement of Elaine Williams were obtained by the investigators commissioned by the insurer.
From paragraph 12, Mr Williams states:
“I recall travelling through some roadworks north of Stroud Road and then we came up behind a four wheel drive vehicle on approach to a right hand bend. The vehicle was doing about 70km/h and we caught up to it reasonably quick. We were riding behind the four wheel drive for about 400-500 meters. Glenn was riding in front, I was second and Elaine was the last rider.
As we got close to behind the four wheel drive, the vehicle continued to slow down more and probably got down to about 40 or 50km/h. We came out of the bend which was also lined with trees and then the road opened up to a long straight where there was an open paddock to the right and an embankment to the left.
Just leading up to where the accident happened I saw the four wheel drive sort of move to the left slightly but the wheels didn’t go off the road and I thought the car was going to pull over to the left.
I then saw Glenn starting to accelerate and just as he got to the back of the four wheel drive I saw the right indicator come on. At that point Glenn was already in the right hand lane and starting to overtake just as the four wheel drive commenced to turn right.
I saw the brake lights on Glenn’s bike come on as he was obviously trying to avoid a collision but there was not enough time and his bike collided with the driver’s side of the four wheel drive. At the point of impact the four wheel drive was on about a 45 degree angle turning towards a gate to a rural property.”
Signed statement of Elaine Williams dated 28 April 2021
From paragraph 10 of the statement Ms Williams states:
“We went through some road works north of Stroud Road and then caught up to a four wheel drive that was driving south under the speed limit. The vehicle was slowing down as if it was going to stop at the side of the road.
Glenn was riding ahead and I saw him put his blinker on to overtake the four wheel drive and then he commenced the overtaking manoeuvre.
When Glenn was at a point of boing beside the four wheel drive, I saw the right indicator of the car come on and then the car commenced to make a right turn towards a gate to a rural property.
I saw that Glenn tried to brake to avoid a collision but there was no enough space and the motorcycle hit in the area of the middle of the driver’s side of the vehicle…”
The insurer’s evidence
Signed statement of Madalyn Foot dated 22 April 2021
Ms Foot is the insured driver, and the statement was obtained by the investigators commissioned by the insurer.
Ms foot explains that she drives the insured vehicle, registered to another person, every day as it is part of her employment package.
At the time of the accident, Ms Foot was travelling from Newcastle to a farm property at 951 The Bucketts Way, Stroud Road. This is the property that she was turning into when the collision occurred.
Ms Foot confirms the speed limit along the relevant stretch of Bucketts Way to be 90km/h and she was familiar with the road having driven it numerous times before. She confirms that the accident occurred just after a slight right hand bend.
She confirms that at the time of the collision there were no cars in front of her travelling in either direction and she was unaware of any traffic travelling behind her at the time of the accident.
The insured vehicle included two passengers at the time of the accident (Maddy McDougall Monk and Hannah Frost), and they had taken a number of stops throughout the day performing a number of chores and activities.
Ms Foot explains that they had travelled to Booral to buy Maddy’s husband some pies and then continue to Gloucester. It is explained that Maddy’s husband was working on a property and they had driven to Monkerai to deliver the pies, however, Maddy had the wrong address and they ended up back on the Bucketts Way to meet up with Maddy’s husband.
From paragraph 39 of the statement, Ms Foot states:
“Leading up to where the accident happened I come out of the left bend which is lined with trees on both sides of the road. At the time I was driving at about 70-75km/h because I knew the location of the property that we had to attend and was slowing down as I come out of the bend.
After the bend I slowed down further and applied the brakes as well as indicating to turn right into the gate way of the property. I looked in my side mirror to make sure there was nothing behind me. I then looked forward and it was clear to commence my turn towards the gate. When I looked in the mirror I did not see any traffic travelling behind me. There were no cars or motorcycles that I could see and my clear view looking back through the mirror would have been all the way back to the bend which I estimate to be about 20-25 meters.
I commenced to turn towards the gate and at that time I would have slowed to about 30 kilometres to prepare for the turn. When I was at the point of making the turn with the front driver’s side of the car across and into the north bound lane, I felt a heavy impact and heard a loud noise as a motorcycle collided with the front driver’s side of my car. I had not seen this motorcycle prior to the impact. Ms Foot and her passengers travelled to Stroud where she assumed the NSW Police would also go to meet the helicopter. She spoke to an officer from Raymond Terrace at Stroud and provided her details to him. No formal statement was made at that time.”
Thereafter, Ms Foot returned to the accident site and the police arrived shortly after. Ms Foot explained that the officer vaguely asked her what had happened. She provided a brief description and some photographs were taken.
Ms Foot has not been contacted or spoken to by police since, except when obtaining an event number.
It is explained that at the time of the accident there was nothing blocking Ms Foot’s vision to her front and both sides of the vehicle.
Signed statement of Madison McDougall Monk dated 22 April 2021
At paragraph 9 of the statement Ms Monk states:
“…We drove to Booral to get a pie for my partner. We had to deliver the pie to him but we got lost and ended up in Monkerai. We realised that we had gone too far and then turned back and went back to the Bucketts Way and started to head south towards Stroud.”
Ms Monk explains that she was the front passenger in the vehicle. From paragraph 11 she states:
“On approach to where the accident happened Maddy indicated to the right to turn into a gate to go into the property where my partner was working. We were under the speed limit because Maddy was slowing down to turn into the property. Maddy knew the location of the property and knew there was a gate that she had to turn into.
Maddy checked all of her mirrors and was slowing down to a speed to safely turn into the property. There were no oncoming vehicle and as I was only facing forward I could not see what was behind us, but I am confident that Maddy had done all the checks to safely make the turn.
On approach to the gate way to the property, Maddy commenced to turn across the road at which point a motorcycle collided with the driver’s door on Maddy’s vehicle. At the point of impact it was only the front driver’s side of the vehicle that was across the centre lines and that was the area of the vehicle that was impacted by the motorcycle.”
Statement of Hannah Forrest dated 22 April 2021
Ms Forrest was also a passenger in the insured vehicle at the time of the accident.
Similar to Ms Monk, Ms Forrest confirms that the party got lost when trying to deliver pies to the insured driver’s partner and ended up in Mokerai. Thereafter, they went back onto Bucketts Way and headed south.
Ms Monk was seated in the back passenger side of the vehicle. She states on approach to the property:
“Madalyn knew the location of the property and put her indicator on about half way around the bend or just as she was coming out of the bend, to make the turn right and also commenced to slow down to make the turn safely.”
She states that the vehicle was around three quarters of the way through to the turn right into the property when there was suddenly a heavy impact into the driver’s side of the vehicle.
Ms Monk goes on to describe the aftermath of the accident and also confirms that she had not been requested to provide any statements to police. Whilst her contact details were taken she had received no contact from police.
Other evidence
The AHC Investigations report includes Google Maps Street View images of the accident scene. The images depict a rural sealed road with one lane each way. The view from the direction of travel of the parties demonstrates the entry of the property entrance which marks the area of the roadway that the accident occurred. It has a dirt “shoulder” leading to the property gate. The image also shows broken lines in the direction of the travel of the parties.
An image from the opposite view demonstrates a rural roadway with a bend.
Also included in the report are photographs of the insured vehicle which demonstrates damage to the driver’s side, both door panels.
Photographs of the claimant’s motorcycle demonstrates a distorted front wheel.
Evidence at assessment conference
The claimant gave evidence at the assessment conference. The insured driver was requested to attend by the claimant’s legal representatives, however, she did not attend. It is to be noted that there is no relevant power to compel a witness to the assessment conference.
The claimant gave evidence that he first saw the insured vehicle ahead at about the time he commenced to take the general right hand bend before the site of the accident.
When asked whether he had a good line of sight of the vehicle, the claimant answered that he could see the vehicle as he could see the brake lights.
After exiting the bend the claimant estimates that he was around 30 m behind the insured vehicle. He observed the vehicle braking and estimates the speed of the vehicle to be around 40km/h.
The claimant explained that he formed the impression that the insured was trying to find a driveway and her movements were such that he thought she was going to pull to the left of the road. As such, he looked ahead and saw no other vehicles and noted it was safe to overtake.
It was explained by the claimant that the insured vehicle did not indicate until he was alongside of the vehicle.
Ms Gumbert confirmed with the claimant his evidence that he was around 100 m back when he came upon the insured vehicle ahead of him. It was then put to him that this was inconsistent with his evidence in his statement where he states the distance to be 500 m. The claimant denied that he would have said 500 m. He said that it may have been 200 m, that it was hard to tell and it was only a guess.
The claimant also confirmed that he was travelling behind at a quicker pace than the insured and by the time that he was out of the bend he was around 20 to 30 m behind the vehicle. Ms Gumbert noted that at 90km/h that is only one second of distance. In response, the claimant noted that he braked also to about half the speed, which is easy to do on a motorcycle.
Ms Gumbert also questioned the claimant noting that his evidence was that a toolbox obscured the back window of the insured vehicle and he ought have known that he may not have been visible. The claimant responded that the insured could have turned her head, noting that she had side mirrors. He also went on to state that the insured vehicle had wing mirrors and that is why he positioned himself to where the driver could observe him.
It was put to the claimant that when he was directly behind the insured vehicle, and when the vehicle was in the middle of the road, the insured would not have been able to see him. The claimant responded that he did not know.
The claimant agreed under questioning that he “had no idea” what the insured driver wanted to do. However, he stated that his options were either to stop in the middle of the road or overtake.
Ms Gumbert put to the claimant that he could have slowed down to 40km/h being the same speed as the insured. He responded by stating that it would be too dangerous to do so on a highway. Whilst the claimant acknowledged that the only people behind him were his friends, he stated that someone could have come around the bend doing 90km/h. As such, sitting on a highway at 40km/h whilst the insured decided what they are going to do would be too dangerous.
When it was put to the claimant that he knew that there were properties next to the roadway and that vehicles enter and exit same, the claimant agreed, however, noted that the insured vehicle had veered to the left.
In answer to the proposition that it was incredibly risky to perform an overtaking manoeuvre when he did not know what the insured driver was going to do, the claimant denied it being the case. He stated that he scanned for other vehicles and pulled over to the other lane and accelerated. It was safe and legal to do so.
The claimant rejected Ms Gumbert’s proposition that it would have been safer to pull out at a further distance so that the insured driver had more opportunity to observe him on the roadway.
Lastly, the claimant denied a suggestion that he was not focussed on the indicator of the insured vehicle. He stated that he indeed was focussed on it. That it was not on and he had only observed the brake lights prior to the accident.
Submissions
Insurer submissions dated 20 September 2022
These submissions appear to be identical to further submissions before me that are dated 21 October 2022.
The content of the submissions are largely a summary of the evidence and the relevant legislation. The actual submissions as to why I would find the claimant at fault are quite brief and do not satisfactorily explain the reasons the insurer says I should find the claimant to be wholly (or mostly) at fault.
Essentially it is submitted that the claimant should be found wholly at fault by virtue of the fact that the NSW Police found the claimant to be responsible. In addition, the two passengers in the insured vehicle both confirmed the insured driver completed all required checks to make the turn safely.
Lastly, the submissions make a broad statement that the claimant failed to take reasonable care for his safety and failed to actively manage the space between himself and the insured.
Claimant’s submissions dated 27 September 2022
The submissions assert that the onus in the dispute rests with the insurer. Noting that ss 3.11 and 3.28 are disentitling provisions, I agree with such assertion.
The submissions also note that the insurer makes no submission relating to contributory negligence and as such “this case rests or falls on the Respondent making good its contention that the accident was wholly caused by the Claimant”.
The key issues, submitted by the claimant, are the precise movements of the insured vehicle just prior to the commencement of the turn and when did the vehicle start its indication in relation to the position of the claimant.
It is submitted that the best positioned persons to observe the circumstances of the action were David and Elaine Williams. They both had a clear and uninhibited view of the circumstances of the accident and their version compels a conclusion that the insured driver was “grossly negligent”.
It is also mentioned that the claimant’s evidence is that a toolbox or something similar was placed across the front of the tray on the insured vehicle which would have obstructed the insured’s view.
In respect of the insurer relying on the NSW Police finding the claimant was at fault, it is submitted that this is misplaced. In this regard, it is noted that the police only took a statement of the insured driver, and perhaps others, and conclude only on that basis that the claimant was at fault.
In respect of the evidence of Ms Forrest that the insured commenced indicating about halfway around the bend, it is submitted that such evidence should be rejected. In this regard, it is inconsistent with the evidence of the claimant and Mr and Mrs Williams, but even the insured driver does not say she commenced indicating that early.
Oral submissions of the insurer at the assessment conference
It was submitted on behalf of the insurer by Ms Gumbert that if the insured driver started to indicate at the point in time that she has said, she had given notice of her intention to leave the roadway. Accordingly, it was a requirement of vehicles travelling behind her to not overtake. And in that factual matrix the claimant is wholly at fault.
It was further submitted that if the evidence of the claimant and Mr and Mrs Williams is accepted in regard to the timing of the insured vehicle indicating, that does not absolve the claimant from responsibility for his own safety.
In this regard, it was submitted that the claimant was travelling close up from behind and at a much quicker speed and with an unobstructed view. If he were to overtake, he was required to do so safely. It was submitted that the evidence of the claimant is that he was not aware of what the insured driver’s intentions were and in such circumstances a reasonable person would have waited to see what was going on. Accordingly, even on the claimant’s version of events, he ought to be found mostly at fault.
Oral submissions of the claimant at the assessment conference
Mr Lee, on behalf of the claimant, submitted that the evidence of Mr Williams was consistent with the claimant’s contention that the insured driver had moved the vehicle over to the left. Both persons anticipated that the vehicle was to turn to the left off the road.
It was also reiterated that the evidence of Mr and Mrs Williams and the claimant was consistent that the insured vehicle did not indicate to the right until such time as the claimant was just at the back of the vehicle.
It was also submitted that there would be no logical reason why the claimant would overtake if the insured vehicle had indicated from a reasonable distance.
It was submitted that it is entirely plausible that rather than the claimant not paying attention, it was the driver that was not paying attention because she was trying to find the gate to enter the property.
Reasons
The evidence of the parties consists of three witness statements each. Broadly speaking, the three statements relied upon by the claimant suggest the insured driver did not indicate the intention to turn right until very late. Conversely, the three witness statements (including the insured driver) all suggest that the insured driver indicated at a reasonable distance of her intention to turn right.
Noting the onus lies with the insurer, I am not persuaded by the evidence of the passengers of the insured vehicle in this respect. I find it much less logically likely that passengers in a vehicle (particularly one in the back seat) would take particular attention, as to the point an indicator was activated or the speed of the vehicle, than that of the riders of motorcycles following the vehicle.
Motorcycle riders travelling behind a vehicle have a clear and vested interest in the movements and indications of a vehicle in front of them, as compared to passengers in such vehicle. Moreover, leading up to the accident the passengers would have little to no cause to make note of such matters. I find the evidence of the passengers to be evidence given in hindsight with a likely unintentional bias to support the version of their friend.
In contrast, as explained above, Mr and Mrs Williams as motorcycle riders travelling behind, whilst also of ‘friend status’, had a real and reasonable interest and reason to be paying attention to the indicator and the movements of the vehicle in front.
In addition, I do not accept the evidence that the insured driver was confident of the position of the property gate in the context of the evidence of the two passengers being that they had previously in the journey had been essentially lost during their journey to the property.
Whilst each passenger state that the insured driver “knew” the location of the property I do not find this to be reliable evidence given it amounts to an opinion as to the state of mind of the insured driver.
Similarly, the line of reason expressed above, satisfies me that the evidence of Mr and Mrs Williams and the claimant as to the speed and movements of the insured vehicle is more reliable than the passengers of the insured vehicle. This is because they had a real and vested interest in monitoring such matters, as compared to a passenger in the vehicle.
In such circumstances, I accept the evidence of the claimant and Mr and Mrs Williams of three facts, namely:
a. that the insured vehicle had slowed down to a noticeably slower speed in the vicinity of 40km/h, or around half the speed limit;
b. that the insured vehicle had veered to the left of the lane in the moments prior to the accident, and
c. that the indicator of the insured vehicle was not activated until such time as the claimant was alongside or just to the rear of the vehicle.
In addition, I find that the insured driver was not keeping a proper lookout. On her own evidence, even though she contends she checked her mirrors, she did not see the claimant or Mr or Mrs Williams. She confirms that she did not notice the claimant’s motorcycle until the collision.
Whilst there is no evidence from a traffic engineer before me, based on the photographs of the relevant section of the roadway I am satisfied on the balance of probabilities that if the insured had been keeping a proper lookout, even by her side mirrors only, she would have noticed the claimant and Mr and Mrs Williams riding their motorcycles behind her. Whilst a bend is depicted on the roadway, the road itself is still visible and there is no evidence before me that establishes that the claimant would not have been visible on his approach from behind.
In the context of my findings of fact above, I find that the insured driver was at fault in respect of the accident. The next task is to determine whether the claimant was also at fault.
Leaving aside the issue that the insurer did not raise a question of contributory negligence until the assessment conference itself, and up until that time had alleged the claimant was wholly at fault, I will nonetheless consider whether the claimant is contributorily negligent.
With reference to section 5R of the Civil Liability Act 2002, the principles in determining whether a person has been negligent are the same when determining whether a person has been contributorily negligent in failing to take precautions against the risk of harm.
I have paid regard to the insurer’s questioning of the claimant at the assessment conference along the lines that he should have waited to determine what the insured driver was going to do before attempting to overtake.
However, I consider the claimant’s response to be a reasonable one in that it would be dangerous to lower his speed to 40km/h. Moreover, I consider it reasonable for him to commence an overtaking manoeuvre in circumstances where the insured vehicle had veered to the left, there were no other vehicles, and the vehicle had slowed down. I find that a reasonable person, in the position of the claimant, would have taken the same actions.
The facts of this matter can be contrasted with an accident involving a suburban landscape, or an overtaking manoeuvre close to an obvious intersection. The accident happened on a rural highway and it I do not consider that a reasonable person would have anticipated the insured driver would make a turn to the right in the factual scenario that I have found.
I find the accident occurred because the insured driver, not keeping a proper lookout, made a sudden turn to the right without indicating from a reasonable distance, rendering the claimant with no way to avoid the collision.
In such circumstances, I find the insured driver to be wholly at fault for the accident.
Costs
As a regulated miscellaneous claims assessment matter under Schedule 1,
cls (3)(2)(d)&(e) of the Regulation, legal costs may be awarded.Schedule 1, cl (3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
The current value of a monetary unit is $112.53.
At the assessment conference the claimant’s representatives indicated a claim for “exceptional costs” was made under s 8.3(3). Directions were made as to the provision of submissions and a schedule. However, after the assessment conference it was communicated that the claimant no longer wished to make a claim for exceptional costs.
I award costs to the value of the maximum regulated amount, being $1,800 plus GST.
Conclusion
For the purposes of s 3.11 the motor accident was caused by the fault of another person.
For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person.
Effective date: This determination takes effect on 3 August 2021.
Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,800 plus GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
a. MAI Act;
b. the Regulation, and
c. the Civil Liability Act 2002
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