Zhang v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 404
•29 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Zhang v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 404 |
| CLAIMANT: | Zixin Zhang |
| INSURER: | Insurance Australia Limited t/as NRMA |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 29 July 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; claimant riding a bicycle during morning peak in lane 1, collided with vehicle in lane 2; claimant says she rode into lane 2 to get around a bus stationary in lane 1 and was wholly in lane 2 when she was hit from behind by the insured which she had not seen; insured said claimant moved around the bus into her lane without warning, no indicator, no signal and did not look; photographs showed damage to insured vehicle from wing mirror down passenger side and no damage to bike; limited evidence, no statements, no witnesses and no expert evidence; Australian Broadcasting Tribunal v Bond, Blacktown City Council v Hocking, and Insurance Australia Limited t/as NRMA v Richards referred to regarding onus of proof; Held – claimant wholly at fault; insured was not speeding and was keeping a proper lookout; claimant moved without looking and was not keeping a proper lookout; no issue of principle; costs assessed and allowed for two disputes at three quarters of the maximum. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of Zixin Zhang. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of Zixin Zhang. 3. The amount of the claimant’s costs in the matter is $2,880 plus GST of $288. |
STATEMENT OF REASONS
INTRODUCTION
Zixin Zhang was involved in a motor accident on 1 May 2023. She was riding her bicycle along Parramatta Road when a collision occurred with a vehicle driven by Ms Allen.
On or about 11 May 2023, Ms Zhang made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against NRMA the third-party insurer of Ms Allen’s motor vehicle Ms Zheng believes caused the accident.
On 29 May 2023 NRMA issued a liability notice to the claimant accepting the claim and informing the claimant of her entitlement to statutory benefits.
On 19 January 2024 the insurer issued a further liability notice to the claimant denying any liability to pay ongoing statutory benefits to the claimant on the basis Ms Zhang was “wholly or mostly at fault”.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act on 3 February 2024. On 23 February 2024 the insurer affirmed its decision. The claimant does not agree with the decision and has referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings were allocated to me. I held a teleconference with the legal representatives of the parties on 1 July 2024. After discussions it was agreed that I should assess the dispute on the papers. I gave the parties the opportunity to obtain additional evidence but no further evidence was provided.
LEGISLATIVE FRAMEWORK
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s own fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
While there is no definition of wholly at fault in the legislation, a motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.[1]
[1] Sections 3.11(2) and 3.28(2).
The parties agreed that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Zhang is wholly or mostly at fault in respect of her weekly benefits (Schedule 2, cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not caused “wholly or mostly” by the fault of the claimant, weekly benefits can be reduced in accordance with s 3.38 by the degree of any contributory negligence on the part of the claimant. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence.
ISSUES IN DISPUTE
Insurer decision making
On 29 February 2024 the claimant was advised that the insurer declined to pay statutory benefits beyond the first 52 weeks from the accident. The claimant was advised that NRMA considered she was wholly or mostly at fault based on a report form from the driver and the driver’s property damage claim and says:
“…you were stationary behind a bus and as you have attempted to merge, you have collided into the side of the vehicle, who was unable to take evasive action.”
Liability was also denied by the insurer on the basis the claimant’s only injuries were threshold injuries within the meaning of s 1.6 of the MAI Act. I have been provided with a copy of the internal review certificate and reasons in respect of that issue, but I have only been provided with a copy of the internal review certificate and not the reasons in respect of the fault issue. The insurer affirmed its decision on both matters asserting the claimant was “wholly at fault in the motor accident.”
Claimant’s submissions
The claimant says that the insurer’s liability decision is inconsistent with the claimant’s version of events.
The claimant’s submissions say that the insured driver caused the accident because:
(a) the claimant had changed lanes and was riding straight when hit by the insured’s vehicle;
(b) the claimant did not see the insured vehicle because it was coming from behind;
(c) the claimant had always maintained a proper lookout;
(d) the photograph of the insured’s car shows damage to the passenger side rear door and the side mirror still attached to the vehicle;
(e) the insured driver’s version is that the claimant fell down after hitting the side mirror and says, “if the claimant manoeuvred herself into lane 2 as alleged … and fell down after hitting the rear vision mirror, it is unlikely that there would be damages to the rear passenger door”, and
(f) if the claimant had entered into lane 2 and was hit by the insured’s vehicle, “the impact of the collision would automatically cause the claimant to repel to the left side however the damage to the insured’s vehicle includes scratches down the rear passenger side.”
The claimant’s submissions argue that the insured driver was attempting to overtake the claimant, the claimant was not riding at high speed, she does not know what speed the driver was driving and the insured side swiped the claimant. The impact cause her to lose balance and fall towards the rear side door before falling to the ground. The claimant’s submissions also say that her version of events is more credible.
Finally, the claimant says that the insured has caused the accident and failed to keep a proper and safe distance away from the claimant.
Insurer’s submissions
The insurer says at [24] of its submissions that while the claimant alleges the insured hit her from behind the photographs of her bike show no damage to the rear and at [25] do not support her version of events.
The insurer says at [23] that the photographs of the damage to the insured vehicle are consistent with her version of events and the claimant running into her.
While the original decision of NRMA was that the claimant was either wholly at fault or mostly at fault, the internal review certificate stated that the claimant was wholly at fault. There was no allegation therefore of “mostly at fault.” At the preliminary conference Ms Pleskach confirmed that the insurer alleges the claimant was wholly at fault. However she conceded that it would be open to me to find the claimant was mostly at fault or that there was some fault on the part of the insured and contributory negligence on the part of the claimant which, if more than 61% will mean the claimant is mostly at fault and if less than that will enable the insurer to reduce ongoing weekly benefits.
REVIEW OF THE EVIDENCE
The parties have provided documentary evidence which contains the claimant’s and the insured’s versions of events.
A report was made to the police on 4 May 2023. The report indicates the weather was fine and the road surface dry and that there were two vehicles involves, the claimant’s bicycle and the vehicle driven by Ms Allen. There is no crash summary and no speed noted for either vehicle with the impact time “driver side to object / pedestrian” and the vehicle manoeuvre was said to be “proceeding straight / in laneway”. It is unclear whether that is a reference to the claimant’s bicycle proceeding straight or Ms Allen’s car.
The Application for personal injury benefits notes that the accident occurred at 7.45 am on 1 May 2023 on Parramatta Road at Camperdown. The claimant says:
“I was riding a bicycle eastbound along Parramatta Road ... I was in the 2nd lane from the left when a car collided to my rear causing me to fall frontward to the right and my bicycle fell onto my right leg.”
The claimant said she injured her right leg, right ankle, right elbow, left knee, right foot and developed a psychological injury.
The claimant denied any previous compulsory third party (CTP) claims and says she had no previous relevant injuries or conditions. Ms Zhang did not go to hospital.
On 31 May 2023, the claimant completed an incident description form for NRMA. She said she had been travelling from Lewisham to Chippendale but said she does not drive in this area regularly. She identified Ms Allen as the at fault driver and says “I was riding in the bus lane, but I needed to go around the bus because it was stopped at a bus stop. I changed to the other lane and then Susan hit me from behind.”
The claimant gives further information:
“I had to change lanes to cross the intersection because the bus was stopping. The light was green at the intersection. I looked at the lane next to the bus lane and there was no more traffic after two cars had passed so I decided to change the lane and was already riding on that lane. That’s when Susan hit me from behind. I was not in contact with the bus on my left when I was hit. The right side of my body touched the ground and I flow out of my bike, which crushed my right foot.”
The diagram she drew has the bike in lane two next to the bus and Ms Allen’s car also in lane two. The diagram has her bike centred in the lane (not to one side or the other) and Ms Allen’s car towards the line between lanes 2 and 3 (or slightly over the line) however the diagram is not to scale and both the claimant’s bike and Ms Allen’s vehicle are depicted as rectangles and both are drawn almost the same size.
The insured driver, Ms Allen, submitted a report of injury form to NRMA dated 22 May 2023. It says:
(a) before the collision she was driving at 10-15km;
(b) police attended, and
(c) she does not believe she was at fault.
Her version of events was:
“I was travelling along Parramatta Road in the middle lane in a slow line of traffic. As I past [sic] the bus parked in the bus lane, the bike rider pulled out from behind the bus and hit the side of my car at the level of the rear vision mirror and fell down. The bike scraped the passenger side of my car with the metal gear lever and rubber handles as she fell down. She did not look or signal. She said she saw the green light and didn’t think to look for traffic.”
Ms Allen provided a diagram at that stage showing her car in lane two with cars along side, ahead and behind her in lane three, cars in front of hers and behind hers and the stationary bus and the claimant’s bike in the first lane.
Ms Allen has provided a statement to NRMA’s property damage department as follows:
“I was driving my [vehicle] along Parramatta Rd in an easterly direction. As I approached the lights on Missenden Road a bicycle rider who was behind a bus that had stopped pulled out without notice or looking, partially into my lane. The handlebar of the bike hit my passenger side view mirror and the rider and bike fell into the side of my car. I was in a double line of traffic and not travelling fast (10-15KM per hour). The bike scraped along my car passenger side, with the brake handle marking the car at the back end of the passenger door and the rubber handle leaving a streak down the remainer of the side. There is a small scrape on the passenger side mirror, which had folded in, when hit by the bike's handlebar. The rider suffered some bruises. The police from Glebe were called but did not undertake further investigation as neither person was deemed to have been under the influence of alcohol and damage was minor.”
Photographs have been provided showing the claimant’s bicycle and there is no readily apparent visual damage that I can identify to the bicycle. It is a black bicycle with a black food delivery type square bag fixed above the back wheel.
The insured’s car is shown with damage to the passenger side front door and black scrapes on the rear door and a damaged passenger side wing mirror.
CONSIDERATION OF THE ISSUES
General approach
My task is to make findings of fact about how the accident happened based on the evidence and then apply the law to those facts to decide whether Ms Zhang was either wholly at fault or whether she contributed to the cause of the accident. Factual findings must be supported by logical, probative evidence. Any inferences drawn must be reasonably open on the facts Australian Broadcasting Tribunal v Bond[2] at [367].
[2] (1990) HCA 33.
The evidence in this matter is limited. There are no signed statements from either Ms Zhang or Ms Allen. I note the insurer’s investigator’s report indicates difficulty getting a response from Ms Allen and the claimant was asked for a statement but advised she did not wish to provide one. There is no expert evidence from either party.
The claimant has provided submissions, but the submissions, written by the claimant’s solicitors, are not evidence in the proceedings about how the accident happened. What is said in submissions must be supported by the evidence. There are several issues with the submissions:
(a) the submissions suggest inferences that should be drawn as to the relationship between the damage and the forces involved in the collision and the way in which the claimant fell. This should have been the subject of expert opinion;
(b) the claimant’s submissions say the insured driver was travelling behind the claimant and attempting to overtake her. The claimant has not given evidence about this in any of the documents she has written, and Ms Allen has not said she was overtaking the claimant. “Overtaking” may be a case theory of the claimant or her solicitors, but it has not been put to Ms Allen and she has not had the opportunity to respond;
(c) the submissions also suggest the claimant states she was riding on the left side of lane 2. The claimant has not said this in any of the material that is before me and the diagram she drew has her vehicle in the middle of the lane, and
(d) the claimant’s submissions also suggest the claimant was not riding at high speed when the accident occurred. There is no evidence at all in the claimant’s material or in Ms Allen’s statements as to the speed of the claimant’s vehicle.
The parties were asked at the preliminary conference whether they intended to rely on any additional evidence such as statements and in particular expert evidence. Neither party sought to adduce any additional evidence.
The parties were asked at the preliminary conference whether they wanted the matter determined by way of an assessment conference, which would have given the claimant the opportunity to question Ms Allen if she was available and Ms Zhang could have given oral evidence to supplement what she has put in her forms. The parties however said they wished the matter to be determined on the papers.
Findings of fact
On the documentary evidence before me I am satisfied that:
(a) the accident occurred at about 7.45am on a Monday morning on Parramatta Road, Camperdown;
(b) traffic was built up and moving slowly. Ms Allen says traffic was slow and her diagram shows other vehicles in front and beside her. In my experience 7.45am is part of peak hour, Parramatta Road is a major road heading to the city and heavy traffic would be expected;
(c) there are three lanes of traffic and a fourth lane to turn right into Missenden Road. Lane 1 is a bus lane with red asphalt;
(d) the claimant was travelling in lane one behind a bus which was stopped (this does not appear to be disputed) and stationary at the bus stop visible in the insurer’s photographs;
(e) at the time the bus stopped, the light at the intersection ahead of the claimant, Ms Allen and the bus stop was green;
(f) the claimant moved out of lane 1 and towards lane 2 to get around the bus. The claimant’s diagram and incident description form confirm this as does the evidence of Ms Allen;
(g) Ms Allen was, at all relevant times travelling in lane 2. This finding is made on the basis of her evidence contained in the accident report form, her diagram and description of the accident in the property damage claim form;
(h) Ms Allen was driving at somewhere between 10 and 15kmph. This finding is made on the basis of the uncontested evidence of Ms Allen in the property damage claim. As Ms Zhang said she did not see Ms Allen before she was hit, Ms Zhang could not estimate the speed Ms Allen was driving;
(i) the claimant did not look, or she did not look carefully enough before she moved from one lane to the other. Ms Zhang says in her incident report form that she looked and saw no traffic after two cars had passed, Ms Allen said Ms Zhang did not look. I accept Ms Allen’s evidence on this point because the claimant said while she looked and saw two cars then moved around the bus, she did not see Ms Allen. Ms Allen was of course in her car and there to be seen. Ms Allen was in slow moving traffic, and she says that she saw the claimant. If Ms Allen could see the claimant, then the claimant should have had no difficulty seeing Ms Allen if she had turned and looked;
(j) the claimant did not indicate. Ms Allen says Ms Zheng did not indicate. The claimant has given no evidence to contradict this. I therefore accept the evidence of Ms Allen;
(k) Ms Allen did not hit the claimant from behind or from the rear. Ms Allen says she was not behind Ms Zhang in lane 2 and photos provided show no obvious damage to the rear of the bicycle or the front of Ms Allen’s car. A collision between the front of Ms Allen’s car and the rear of Ms Zhang’s bicycle would be unlikely, in my view to explain the marks on the side of Ms Allen’s car, and
(l) as Ms Zhang moved around the bus and into lane 2, a part of the claimant’s bike came into contact with the passenger side wing mirror of Ms Allen’s car forcing the mirror to fold inwards. This finding is made on the basis of Ms Allen’s description of the accident in the accident report and property damage forms. She described the damage done to the wing mirror which is consistent with a photograph of her car in an assessment centre or smash repairers identifying damage to that mirror. I also note that the photographs suggest the right handlebar or brake of the claimant’s bike hit the passenger side door of Ms Allen’s car causing the visible dent just above the front door handle and then the long black scrape down the rear passenger side door. This is also consistent with the version of events given by Ms Allen
I am aware that appellate courts in cases such as Blacktown City Council v Hocking[3] have warned first instance decision makers as to how photographs are to be used in the absence of expert evidence. I have no expert evidence and very little other evidence before me to assist me and the photographs have been of assistance to me.
[3] [2008] NSWCA 144.
Was the claimant wholly at fault?
When there are two vehicles involved, the question of whether the claimant is wholly at fault can be answered by considering whether the other driver involved was at fault. If the other driver is at fault, that is if Ms Allen was negligent, then the claimant may be guilty of some contributory negligence, but she cannot be wholly at fault.
Insurance Australia Limited t/as NRMA v Richards[4] establishes that the onus of proof in satisfying me whether the claimant is “wholly or mostly at fault” lies with the insurer.
[4] [2023] NSWSC 909.
The insurer has satisfied me that Ms Allen was not at fault and that the claimant was wholly at fault for the following reasons:
(a) Ms Allen was not speeding. She was driving in a double lane of traffic at 10-15km in peak hour alongside a bus with other traffic on the road around her;
(b) the claimant moved, without looking and without indicating to get around the bus. The claimant collided with Ms Allen’s car and fell causing injury;
(c) Ms Allen was keeping a proper lookout because she saw the claimant and saw the claimant move out and collide with her, and
(d) the claimant was not keeping a proper lookout because she did not see Ms Allen at all before moving.
If I am wrong, and there is some negligence on the part of Ms Allen, then in my view there would need to be a finding of contributory negligence made against Ms Zhang on the basis of her failure to indicate and warn Ms Allen of her intentions to move to the right or her failure to look and see Ms Allen approaching.
If I had to assess the degree of Ms Zhang’s contributory negligence, then in accordance with Podresbersek v Australian Iron and Steel Pty Ltd,[5] I must do so by assessing the relative culpability of the two protagonists. In my view when I compare the actions of Ms Allen (driving slowly in built up traffic aware of what is happening ahead of her as she sees the claimant) with Ms Zhang (riding a bicycle and without indicating or looking moves to ride around a bus) the greater proportion of the blame lies with Ms Zhang. In my view a finding of 80% contributory negligence would have been appropriate.
[5] [1985] HCA 34; 59 ALR 492.
CONCLUSION
The claimant seeks the maximum amount of legal costs but does not state the precise amount claimed. The claimant says there were two disputes referred, one under Schedule 2 cl 3(d) and the other under cl 3(e).
NRMA do not provide any submissions on costs.
While I have found the claimant wholly at fault, she is still entitled to costs in accordance with s 8.10 of the MAI Act.
Both disputes referred for assessment are regulated miscellaneous claims assessment matters in accordance with Schedule 1, Part 1 (3) of the Motor Accident Compensation Regulation 2017. Each therefore attracts the maximum legal costs of 16 monetary units each. As a monetary unit is current worth $119.96 in accordance with Schedule 3 of the Regulation (and is to be rounded up or down) the maximum available is $1,919 for each dispute.
I note there was a limited amount of work done by the claimant’s solicitor in respect of this matter (for example no statement from the claimant and no expert or other lay evidence). In my view the claimant should not be allowed the maximum amount for both matters. I will allow the claimant three quarters of the sum for each dispute (rounded to $1,440) that is the total sum of $2,880 plus GST.
0
3
0