MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant; section 3.28 of the Motor Accident Injuries Act 2017; whether the driver of the insured vehicle warned the claimant of the approach of her vehicle; whether the claimant was driving his vehicle on the wrong side of the road; sections 5B, 5C & 5R of the Civil Liability Act 2002; Rules 129-132 of Road Rules 2014; Podrebersek v Australian Iron & Steel Pty Ltd applied; Held - claimant was wholly at fault.

1. For the purposes of sections 3.11(1)(a) and 3.28 the motor accident was caused wholly by the fault of the Claimant.
2. Effective Date: This determination takes effect on 7 June 2022.
3. A brief statement of my reasons for this determination is attached to this Certificate.

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

1. On 5 June 2018 the Claimant was driving a Hyundai Lantra in a Southerly direction on Empire Bay Drive when it came into collision with the Insured Vehicle, a Toyota Kluger being driven by one Jodie Spinks, from the opposite direction.
2. The Insurer alleges that the accident was wholly the fault of the Claimant who was significantly injured.

1. I list a brief chronology of the relevant facts:

The Accident - Admitted to John Hunter Hospital with multiple injuries and ICU admission.

GIO General denied statutory benefits beyond 26 weeks

Internal Review decision affirming the insurer's decision that the Claimant was wholly at fault

Application for Miscellaneous Claims Assessment as to whether the Claimant was mostly at fault

1. The Claimant submits that he was not at fault for the accident. On the evening of 5 June 2018 the road was wet, and he was travelling at the speed limit of 70 km/h.
2. The other driver stated that she had tried to warn him by flashing her lights 20-30 metres away. The Claimant submits that this was very unlikely because 30 metres is a long way to be flashing lights and the other driver had sufficient time to take evasive action.
3. The Claimant accepts that he cannot recall anything about the accident as far back as even getting into the car and was in a coma.

"I have come down from Queensland to attend my cousins funeral on that weekend. I have lost my phone and did not have one on me. The weather was really bad that night and the road was wet, I was on the way back from a friends house at Kincumber, I wasn't on the wrong side of the road nor was I driving erratic. I do not recall the actual collision with the other vehicle. I wasn't under the influence of drugs or alcohol either I don't recall the collision because of the extent of my injuries, ever since the crash I am fearful when getting in a car it gives me bad anxiety. My injuries still cause me pain I don't have full movement in my legs and have chronic pain in my right shoulder. My mental (sic) has deteriorated significantly and my life has dramatically changed. This is the best recollection I have from the crash and only statement I have done regarding this incident..."

1. I briefly summarise statement made by Jodie Spinks to the Insurance Investigator by reference to paragraph number:-

[10] At the time of the Accident she was working for St George Bank as a mobile lending manager... working at the Woy Woy branch and was heading home.

[14] At the time of the accident was driving a Toyota Kluger 4-wheel drive.

[15-6] The vehicle was in good road worthy condition... She had not consumed alcohol.

[17] At about 11:30 pm on 5 June 2018 she was driving in a northerly direction along Empire Bay Drive by herself and heading home from work to Bensville.

[18] Empire Bay Drive is a main road which leads through several suburbs north to Kincumber. The road is made of bitumen, with one lane north and one lane south. The area where the accident occurred was separated by Double white unbroken lines. The road is well marked and in a reasonable condition.

[19] She is familiar with the road and the area. She drives along Empire Bay Drive at least 2 times per day. The speed limit is 70 kph and she would have been driving at just under 60 kph.

[20] She was driving in a northerly direction. As she was approaching the intersection of Currong Road, she observed two oncoming cars, with one travelling in her lane and on the incorrect side of the road.

[21] She assumed the car was attempting to overtake the other car. However, the other car remained in her lane and travelling towards her at a constant speed and without deviating.

[22] It appeared that he was driving in her lane for some time before they collided.

[23] She was in a heightened state as she could see the car was not moving out of her lane. It seemed like he was a long way away when she first saw him. She would not be able to give an estimate as to the distance, but they were in her lane travelling toward her for some distance.

[24] She reacted by flashing her lights at him. He continued driving toward her. She may have also beeped her horn, but she is not sure if she did.

[25] The other driver was driving a white Hyundai Lantra USC600.

[26] It was dark and drizzling with rain and the road was wet. She had her windscreen wipers on low and the traffic was light.

[27] The area was lit by streetlights. She had her headlights on.

[29] She recalled looking to her left seeing a small, unsealed area behind the road lined with trees. She also saw that there were no cars in the southern lane.

[30] As the other driver continued to drive towards her on the incorrect side of the road and making no attempt to move back, she felt she had no option but to attempt merging to the right (opposite side of the road). This was the only option she had to avoid a head on-collision.

[31] As she commenced to turn her car into the centre lane, she believes the other car swerved towards her. She placed her foot on the brakes, however the Hyundai collided... head-on. She believes she was travelling just under 60 kph at the time of the impact. She does not know the speed of the other car, The driver did not react until the last moment.

[32] The point of impact was the northern lane just North of intersection with Currong Road. She has provided the investigator with a series of photographs taken following the accident that show the front wheels of her car turned to the right wand her vehicle at an angle with the front of her car on the centre lines.

[35] Her vehicle remained predominantly in the north bound lane while the Hyundai swung around coming to rest on the western side of the road with the vehicle facing towards the centre.

1. The Claimant's submissions were prepared by his mother given that the Claimant has no recollection of the accident. They were based on what she considered to be the objective evidence and on discrepancies in the police report. I extract the main "discrepancies":-

(i) Empire Bay Drive and Currong Road is a long road without intersections.

(ii) Contrary to what the other driver stated as to the streetlights being on the road was dark with very little lighting and ill lighting where the accident took place.

(iii) The Claimant was heading North.

(iv) The police report referenced that the Claimant was riding a motor vehicle. He was driving a car.

(v) He does not believe he was fully responsible for the accident.

(vi) The police version was derived from the other driver's account.

(vii) The central submission is that the bend on Empire Bay Drive would not have allowed a 20-30 metre flashing. Given that there was a bend it would not have been possible for Ms Spinks to be flashing for 20-30 metres back where she said she started flashing.

(viii) There was not enough evidence to find the Claimant totally responsible.

(ix) Ms Spinks states "as she approached Currong Road she started flashing". This is inconclusive because Currong Street is the accident location. Stating that here is where she started flashing is not satisfactory proof that the Claimant is fully responsible.

(x) Currong Road is not an intersection but a side dirt road on a bend.

(xi) Ms Spinks stated she observed two oncoming cars. There is nothing conclusive to prove that there were two vehicles.

1. Briefly summarising the insurer's submission of 6 May 2022, by number:-

[1] The consistency of the account of Jodie Spinks.

[4] The two video links within the Procare report which demonstrated the path of travel of the parties. The footage is of assistance and establishes that both drivers would have had an unobstructed view for a significant distance ahead, even as both parties entered a slight bend.

[6] The insurer refers to the account of the Claimant in the application for Personal Injury Benefits

"I was driving along Empire Bay Drive at Bensville. It was approximately 11:30pm the conditions were wet and windy. I saw on my right hand side, what I thought to be a cat. I then swerved and everything form here on is blank".

[7-8] The Application [page 3], dated 2 September 2019 and in the evidence the he gave at the Assessment Conference, the Claimant asserted that he had no recollection of the accident. At the Hearing in the TIC he said:-

"I do not recall the actual collision, I just know that I was not on the other side of the road".

[11] The insurer maintains that I should find the Claimant wholly at fault for travelling on the incorrect side of the road.

1. In the Insurer's Further Submissions (undated), the insurer refers to previous submissions, to the investigation report from Procare dated 5 November 2021, to the interview between the investigator and Constable Monaghan and submits it is the Insurer's position that the evidence substantiates that the Claimant was wholly at fault by travelling on the wrong side of the road and colliding with the other driver notwithstanding her attempts to warn him of imminent danger by flashing lights and sounding the horn. The submission continues that in the alternative if I find that the Claimant was not wholly at fault, the insurer submits that a finding of mostly at fault would be warranted in light of the evidence.
2. Documents provided:
   • AD2-Flanders further submissions.pdf 14/12/2021
   • AD3-Flanders statement.pdf 04/03/22
   • AD4-Flanders dylans pic letter.docx 04/03/22
   • AD5-Flanders Doc 2.2.docx 04/03/22
   • AD6-Flanders Claimant 1.2.docx 04/03/22
   • AD25-Flanders submissions number 3.pdf 09/05/22
   • R1-Flanders submissions.pdf 22/09/21
   • 2019-09-07_000753.pdf (Application for internal review by insurer) 22/09/21
   • AD7-Flanders PIC 1.jpg 04/03/22
   • AD8-Flanders PIC 2.jpg 04/03/22
   • AD9-Flanders PIC 4.jpg 04/03/22
   • AD10-Flanders PIC 5.jpg 04/03/22
   • AD11-Flanders PIC 6.jpg 04/03/22
   • AD12-Flanders PIC 7.jpg 04/03/22
   • AD13-Flanders PIC 8.jpg 04/03/22
   • AD14-Flanders PIC 9.jpg 04/03/22
   • AD15-Flanders PIC 10.jpg 04/03/22
   • AD16-Flanders PIC 11.jpg 04/03/22
   • AD17-Flanders PIC 12.jpg 04/03/22
   • AD18-Flanders PIC 13.jpg 04/03/22
   • AD19-Flanders PIC 14.jpg 04/03/22
   • AD20-Flanders PIC 15.jpg 04/03/22
   • AD21-Flanders PIC 16.jpg 04/03/22
   • AD22-Flanders PIC3.jpg 04/03/22
   • AD26-Dylans PIC Letter 9th May 2022.pdf 10/05/22
   • AD1-Flanders Factual.pdf (Surveillance report) 30/11/21
   • AD23-Flanders Second Factual Report_Redacted.pdf (Surveillance report) 09/05/22
   • AD24-Flanders Second Factual Annexures_Redacted.pdf (Surveillance report) 09/05/22

• the Motor Accident Injuries Act 2017 (MAI Act);
• Motor Accident Injuries Regulation 2017;
• the Motor Accident Guidelines, Version 8 (the Guidelines);
• Civil Liability Act 2002; and
• Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).

1. Road Rule 129 provides:

(1) A driver on a road...must drive as near as practicable to the far left side of the road.

1. Road Rule 131 provides:

(1) A driver must drive to the left of any oncoming vehicle...

1. Road Rule 132 provides:

(2) A driver on a road with a driving line must drive to the left of the driving line...

1. Section 5R of the Civil Liability Act 2002 provides that:

(1) The principles applicable for determining negligence also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) The standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time.

1. I am asked to consider two questions:
   1. Was the Claimant wholly at fault; and
   2. If not what was the extent of his contributory negligence.
2. Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man...and of the relative importance of the acts of the parties in causing the damage...It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination".

1. In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
2. The Claimant who suffered serious injuries, stated on two occasions, firstly at page 3 of his Application for Personal Injury Benefits, dated 2 September 2019 and at the Assessment Conference on 5 April 2022, that he did not recall the actual collision.
3. Although the Claimant stated in his cause of the accident that he swerved to avoid something (a cat, he thought) and everything from then on was blank, on the balance of probabilities, the more likely explanation is that for whatever reason the Claimant's vehicle was on the wrong side of the road for some time before the accident and that notwithstanding the other driver, Ms Spinks, attempting to alert the Claimant by flashing her lights at him, he did remain on the wrong side of the road, causing Ms Spinks to take evasive action and resulting in the collision.
4. In evidence there is a series of photographs attached to Ms Spinks statement of 27 April 2022. The bend is clearly shown. The Claimant disputes Ms Spinks claim that she was flashing her lights, saying that she could not have seen the Claimant's approaching vehicle because of the bend in the road shown in the photographs attached to the statement.
5. There is only one account of precisely how the accident happened available, namely by Ms Spinks. She clearly stated at the Hearing on 10 May 2022 that she was flashing the lights of her vehicle for a couple of hundred meters and felt it was a very long time that the Claimant was in her lane. It was suggested to her that there was a point in the road where it was obscured because of the curve, and she replied that it was only a slight curve. She says she knows the road really we ll.
6. Whether or not Ms Spinks flashed her lights, she was very firm in her account that the Claimant's vehicle was on the wrong side of the road when it struck her vehicle and that she could not avoid the collision.
7. I do accept that on the balance of probabilities, there was a second vehicle and that Ms Spinks was acting reasonably in her assumption that the Claimant was intending to overtake and that he would then draw back into his own lane. Further on the balance of probabilities she was flashing the lights of her vehicle at least for some time to warn the Claimant he was on the wrong side of the road.
8. Ms Spinks was consistent and clear in her evidence at the Hearing on 10 May 2022 and there is nothing in her presentation or her actual evidence which would suggest she was not telling the truth as she recollected it or that her recall was unreliable.
9. I find and determine that on the balance of probabilities the Claimant was wholly at fault for the accident. The Claimant was not represented so there is no determination of legal costs.