Zaina v QBE Insurance (Australia) Limited
[2022] NSWPIC 319
•15 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Zaina v QBE Insurance (Australia) Limited [2022] NSWPIC 319 |
| CLAIMANT: | Dana Zaina |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 15 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Whether the injured person was mostly at fault pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Claimant self-represented; collision on Parramatta Road at intersection with Alfred Street, Granville; Claimant entered Parramatta Road; Insurer alleges the Claimant failed to give way to traffic causing a collision with the insured vehicle travelling along Parramatta Road; Held – Claimant mostly at fault; failed to keep a proper lookout and failed to give way to traffic when entering an intersection. |
| DETERMINATIONS MADE: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person.
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Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a dispute between the parties as to whether the injured person is mostly at fault in the motor accident pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
Dana Said Ahmed Zaina is a 28 year old woman who suffered injury in a motor accident on 29 September 2021.
The claimant lodged an Application for Personal Injury Benefits (claim form) thereafter, and QBE (the insurer) evidently accepted liability for statutory benefits for the first 26 weeks.
By way of notice dated 12 January 2022, the insurer denied liability for ongoing statutory benefits after 26 weeks on the basis that the claimant was wholly or mostly at fault.
The claimant subsequently lodged an application for internal review. In a decision dated 11 February 2022 the insurer affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (the Commission) for assessment of the dispute. The matter has been allocated to me for determination.
I have held one teleconference between the parties. The claimant is self represented. The insurer was represented by Robert Chatfield, an employee of the insurer.
At the teleconference, I asked the claimant whether she had sought any legal advice. The claimant confirmed that she had, and that the lawyers had apparently provided advice that aligned with the insurer’s decision. Accordingly, the claimant wishes to proceed with the dispute without legal representation.
I asked the claimant if she had anything she wanted to submit to me, in addition to the written material before me, in relation to the dispute. The claimant told me that she is suffering from ongoing injuries as a result of the accident and is in need of treatment. I advised that whilst I understood such need, the issue before me for determination was confined to whether she was mostly at fault for the accident. I further stated that injuries and the requirement for treatment is not something that I can take into consideration when coming to my determination. The claimant confirmed that she understood this.
Both parties confirmed that nothing further would be relied upon. Both parties also confirmed that there was no objection to be assessing the matter on the papers.
Subsequent to the teleconference, I requested the insurer provide further material to me, including a copy of the claim form. That has now been provided.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the 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 sections 3.11 and 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.
Summary of evidence
The claim form appears to have been completed by the claimant’s husband. Where the form asks for a description of the accident, it is explained that the claimant cannot remember the accident and only recalls waking up in the Intensive Care Unit of Westmead Hospital.
The NSW Police Report generated on the day of the accident provides details of three vehicles being involved in the accident. Vehicle one is described as being driven by the claimant. The report indicates that police considered the claimant’s vehicle to be at fault. The crash summary details are as follows:
“At 8.30am on the 29th of September 2021, DRV1 [the claimant] was stopped on Alfred Road, Granville at the intersection of Parramatta Road and Alfred Road. At this time, DRV2 was travelling eastbound in lane 2 along Parramatta Road approaching the intersection. As DRV2 approached the intersection, DRV1 has attempted to turn right onto westbound traffic on Parramatta Road however she had failed to leave enough time to make the turn thus the front of VEH2 collided with the offside of VEH1 causing the vehicle to spin onto the east bound traffic lane of Parramatta Road. VEH3 was travelling eastbound in lane 1 on Parramatta Road however as VEH1 spun out of control, the front end of VEH1 collided with the front end of VEH3 causing both vehicles to come to a stop.”
The insurer had Quantumcorp undertake a factual investigation. A report of Quantumcorp Investigations dated 15 December 2021 is before me.
That report indicates that the investigation essentially was confined to an interview with NSW Police.
There is no statement from the claimant, which is consistent with her having no memory of the accident.
The Quantumcorp report also includes an aerial photograph of the subject intersection. It depicts Alfred street connecting with Parramatta Road at a “T” intersection. Both Alfred Street and Parramatta Road appear to be straight on approach to the intersection with no bends in the roadway.
I have considered the transcript of interview between Glenn O’Neill from Quantumcorp and Constable Nguyen. The interview took place on 10 December 2021 via the telephone and was recorded.
Constable Nguyen confirms that he attended the scene of the accident and confirms it occurred at the T intersection of Alfred Street and Parramatta Road with Alfred Street to the north side of Parramatta Road. The Constable confirmed that there are no signs at Alfred Street and only terminating street rules apply.
Constable Nguyen confirmed that traffic travelling from Alfred Street is able to turn left or right onto Parramatta Road.
The Constable told investigators that on arrival at the scene it appeared that there were three vehicles involved. Being a white truck, a Mazda and with the assistance of the investigator the Constable was able to confirm the third vehicle was a Nissan Pulsar (the claimant’s vehicle).
When Constable Nguyen arrived at the scene the claimant was in an ambulance.
The investigator summarised his understanding of the accident circumstances to the Constable. The investigator suggested that the claimant travelled out of Alfred Street endeavouring to make a right hand turn. She apparently got through the first eastbound lane before a collision occurred with the truck. That impact caused the claimant’s vehicle to spin into the two westbound lanes where a further impact occurred with a third vehicle, a Mazda, that was travelling westbound in lane two of Parramatta Road. The Constable confirmed such summary as being correct.
The transcript reveals that another police officer obtained a version of events from the driver of vehicle two, the truck driver. Presumably a notebook statement was taken. That statement is read out as follows:
“I was travelling on Parramatta Road lane two, about 50 kilometres per hour when a Nissan Pulsar attempted to turn right from Alfred Street onto the westbound lanes and basically stopped in front of my truck and I was unable to avoid a collision.”
He then said “The Nissan has spun around and collided with an oncoming Mazda in lane two westbound.” And then “I got out of the truck, there were already people trying to help the lady in the Nissan”.
Police also obtained a version of events from the driver of the third vehicle, the Mazda. That is read as follows:
“I was driving on Parramatta Road towards the M4. When I was about 15 metres from Albert Street [presumably meant to be read as Alfred Street] I saw a sliver car enter Parramatta Road in an attempt to come into my lane. This silver car was coming from Albert Street. When the silver car was in the second lane on Parramatta Road towards the city a truck hit the silver car. When the silver car came into Parramatta Road it was very little space for the truck to stop. After the silver car was hit by the truck the silver car came into my lane and I didn’t have enough time to stop so may car crashed into the silver car as well. I slammed my brakes but there was not enough space. When the crash happened I got out of the car and went on the footpath until police arrived.”
Constable Nguyen confirmed that he attempted to obtain a version from the claimant, however, she confirmed that she did not remember anything and only remembered waking up in hospital.
A CCTV camera was identified by Constable Nguyen, however, it was found to be not working at the time.
A witness statement was obtained by police and that was read in the transcript as follows:
“While driving my truck, registration XN33HI, New South Wales on Parramatta Road travelling towards Granville at around 8:30 to 8:35am on the 29th of September 2021 I was driving next to a Amart Tyre [inaudible], someone was in front of me, I was in the left lane driving towards the M4. When I drove towards the intersection of Alfred Street and Parramatta Road I saw a silver Nissan car drive across the intersection which was hit by a white truck on the driver’s side. The truck tried to stop but it was too close to the car in front of it. When the truck and the car collided the car did a spin and collided with the car in front of me, which is a Mazda AM79TO. At that point I stopped the truck and hit the brakes. Before that I was travelling around 30 to 40 kilometres per hour. I called the ambulance at 8:42am.”
The investigator confirmed with Constable Nguyen that the witness was the driver of a vehicle travelling directly behind the Mazda, referred to as vehicle three.
In respect of action taken after the accident, Constable Nguyen stated that after looking at the driver versions, because the claimant was exiting out of Alfred Street, which is a terminating road, she was required to give way to traffic and she failed to do. She therefore was given an infringement notice.
Submissions
Claimant’s submissions
The claimant has not provided written submissions. The Commission application form submits that: “liability should be long-term to cover any future treatment, liabilities, and complications related to the major injuries resulting from the accident”.
Insurer’s submissions
The insurer’s written submissions attached to their reply essentially states that the reasons given in the internal review determination are restated and relied upon.
The internal review decision provides reasons for the decision as being the NSW Police report and transcript of interview with Constable Nguyen confirming that the claimant attempted to turn onto Parramatta Road, and failed to leave enough time to make the turn, thereby causing the accident.
Reasons
I have determined that the claimant was wholly (mostly) at fault for the accident. In this regard, the evidence before me demonstrates that the claimant failed to give way to traffic when entering Parramatta Road from Alfred Street.
The three versions of events obtained by police, including the drivers of the other two vehicles involved in the accident and the version of an independent witness, are all consistent in their description of the claimant entering Parramatta Road without giving way to oncoming traffic. Furthermore, all three versions of events are consistent with the truck driver not having sufficient time or space to avoid the accident. Evasive action was taken by him, however, there was not reasonable opportunity to stop his vehicle prior to the impact.
With Alfred Street terminating at the T intersection with Parramatta Road the claimant was required to give way to traffic before entering Parramatta Road. The evidence is such that I am sufficiently satisfied that the claimant failed to give way.
I also note that the claimant was issued an infringement notice from the NSW Police Force in respect of the accident.
For the above reasons, I determine that the claimant is wholly (mostly) at fault for the accident.
Costs
I have found against the claimant, who is self-represented.
I therefore do not award costs.
Conclusion
For the purposes of section 3.11 the motor accident was not caused by the fault of another person.
For the purposes of sections 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 30 March 2022.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 (the Regulation) $0.
Legislation
In making my decision I have considered the following legislation and guidelines:
·MAI Act;
·the Regulation, and
·the Civil Liability Act 2002.
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