CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Hamid v Insurance Australia Ltd t/as NRMA Insurance [2023] NSWPIC 157	
		
Claimant:	Mohammad Hamid	
		
insurer:	Insurance Australia Ltd t/as NRMA Insurance 	
		
Member:	David Ford	
		
DATE OF DECISION:	6 April 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS -  Motor Accident Injuries Act 2017; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; the claimant attempted to make a U-turn at an intersection when his vehicle was struck by the insured motor vehicle; the insured driver was driving his vehicle in excess of the applicable speed limit; the claimant failed to look in his rear view mirror prior to attempting to execute the U-turn; Held – the motor accident was not caused wholly by the fault of the claimant; the contributory negligence of the claimant considered to be in excess of 61% and accordingly, the motor accident was caused mostly by the fault of the injured person.
	
determinations made:	Certificate
Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and cl 7.497 of the Motor Accident Guidelines
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 caused mostly by the fault of the injured person. 
3.	Effective Date: This determination takes effect on 11 April 2023. 
4.	Legal Costs: The claimant is self represented..
A brief statement of my reasons for this determination are attached to this certificate.	

Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of s 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
1.	This Is a dispute between Mohammad Hamid the claimant. And the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
2.	The insurer undertook an internal review, and a statement of reasons is attached to the reply form and is dated 14 October 2022.
3.	The claimant seeks to challenge the determination.
4.	On 16 of June 2022 the claimant was driving his motor vehicle in a northerly direction along Greenwich Road towards the intersection when Handcock Lane. On Greenwich Road the speed limit varies from 40 kph per hour to 50 kph per hour as there is a school zone south of intersection with Handcock Lane. The speed limit changes to 50 kph a few metres before the intersection.
5.	It was the intention of the claimant to veer left into Handcock Lane and then commence to make a U-turn at the intersection and proceed in a southerly direction back along Greenwich Road. At the same time, the insured driver was driving his motor vehicle in a northerly direction along Greenwich Road towards said intersection.
6.	In then transpired a collision occurred between both vehicles at the intersection
7.	The insurer undertook an internal review and in their statement of reasons dated 14 October 2022, the insurer considered the claimant wholly or mostly at fault and after 26 weeks. the weekly payments under ss 3.11 at 3.28 were ceased.
8.	The claimant submits he was neither wholly or mostly at fault in the motor accident, and he is entitled to a continuation of statutory benefits. He has now filed this application seeking. a determination of the dispute with the insurer,
Documents considered.
9.	I have considered the documents provided in the Application and in the Reply.
Claimant’s submissions
10.	In the Application for Personal Injury Benefits Claim Form, dated 14th July 2022, the claimant states as follows. 
“Attempting lawful U turn with indicator on, other driver pulled out of bus stop very recklessly crossed double lines and crashed into my vehicle than actual limit and instead of applying brakes applied accelerator.”
11.	In a further statement provided to AHC Investigations in their report dated 7 September 2022, the claimant, inter alia, states as follows,
“I was driving home and decided to stop at the IGA store at Greenwich. I found a parking spot in the street on Greenwich Rd, just down from the IGA. I went in and bought my groceries at the IGA. I came out and put the groceries in the car, started my car and then headed north towards the Pacific highway. I put my right indicator on before proceeding up Greenwich Rd in a northerly direction, it was a 40 kph. kph.I continued up Greenwich road before I put my left indicator on I was going to do a U turn at Handcock lane .
There were no double lines, and it was permissible to do the U turn at this point in the road. I made sure I had a clear view in both directions, there were no cars coming, so I started the U turn. When I was about halfway into the U turn, I saw a large black mass out of the corner of my eye. It was coming from my right and i soon realised it was another car that had crossed double line from behind my car. As it has crossed the double line, the passenger side the other car collided with the driver's side quarter panel of the car that I was driving.
The other car had a large bull bar on it, was about 6 to 7 metres away when I first saw the other car. The other car was travelling above the speed limit ,I was travelling at 22 kilometres per hour at the time ,this was recorded by the hire company on the GPS that was in the car .The other car was also travelling on Greenwich Rd, but behind my car .I could not attempt avoiding this car, as I had already committed to my U turn .The other party appeared to attempt to avoid a collision by viewing to the right but it still occurred”
12.	At the assessment conference, the claimant confirmed he had read all the material on the portal lodged by the NRMA. He did not wish to lodge any more material in support of his application. He disputed the speed limit at the point of the accident was 50 kph. He believed the speed limit to be a 40 kph zone.
13.	He stated immediately prior to commencing to attempt to make the U-turn, he looked in both his rear vision mirror and side mirror and he did not see the insured vehicle, which he described as the black vehicle approaching from the rear. The only time prior to the collision, that he noticed the black vehicle, was when he saw the vehicle which he stated to be parked illegally outside the IGA store. He was adamant that when he was about to turn his vehicle into Handcock Lane, he looked in his side rear view mirror and there was no vehicle approaching from the rear.
14.	He did concede that shortly after driving his vehicle a very short distance into Handcock Lane, and attempting to make the U-turn, the collision immediately occurred. 
Insurer’s submissions
15.	The insurer submits the motor accident was caused wholly or mostly by the fault of the claimant. As he commenced to make a U-turn at the intersection. In addition to the written submissions by the solicitor for the insurer dated 23 February 2023, the insurer also relies upon the reports of AHC Investigations dated 7 of September 2022 and 14 November 2022. 
16.	In the first statement made by the insured driver dated 23 August 2022 he states, inter alia,
“I was driving up Greenwich Rd and heading towards the Pacific highway. I was travelling at about 40kph, there was light traffic at the time and only one small car that was about 10 to 15 metres in front of my car.” 
17.	He further states the following, 
“there were cars parked on each side of the road on that date. I remember that I passed the IGA and other small shops on my left I then continued along Greenwich Rd and was approaching the next intersecting street on my left when a white van has suddenly driven onto Greenwich Road. I believe that the white van has driven out from the T intersection on the left, but I did not see it drive from there. first time I saw the white van was when the front driver side of this van collided with the front passenger side of my car. I did not see the white van before this point.
I was travelling at about 40kph at this point, and whilst I believe the driver vehicle was speeding, I could not say what speed he was travelling at when the vehicles collided.
As I did not see the white van until it had almost collided with me, there was no way for make to avoid the collision.” 
18.	In a second statement dated 31 October 2022, he states, inter alia, the following.
“I do not know where the white van came from, did not see it until it collided with the side of my car with Handcock Lane. I did not see any white van to the left of the street, and I did not see any white van in Handcock Lane, as I approached the area. I do not recall seeing it as I looked ahead while I was driving. I saw the other vehicle car ahead of mine, I think was a dark coloured sedan but did not see this white van.
As the accident happened, I was looking straight ahead, travelling at approximately 40kph, I did not look at my speedometer, but I think drive vehicles for over 30 years including trucks and am familiar with the speed of vehicles on the road.
I did not have time to use my brakes or move the vehicle away to avoid the collision is there did not see the white van as it approached my car. I had no time to react or take any action to avoid the accident because I did not see the white van until the impact.”
19.	In the first report of AHC investigation dated 7 September 2022, there is a statement from an independent witness, Mr D Bowes dated 24 August 2022. Mr Bowes states as follows. 
“It was sometime around 2:30 pm and 3:30 pm, the weather was beautiful, and the roads were dry. I was parked in Greenwich Rd outside a real estate. I was alone in the car when I saw another car trying to reverse into a parking spot near the shops. As this car was reversing, a black coloured car has come speeding up near it, beeped its horn and flew past the car that was trying to park. I then drove out of my parking spot and followed the black car. The black car drove towards the next intersection when a white van has collided with the black car. I was about 100 metres behind the black car when the accident has happened. I could not see where the white van has come from, but it appeared to be the side street. as it was a T=bone type of collision. I saw the two cars collide with each other and whilst the white van has collided with the black car, I do not believe that it would have happened if the black car wasn’t speeding.”
REASONS
Was the claimant wholly at fault in causing the accident?
20.	I refer to paragraph 19 above and the statement of Mr Bowes. He states the insured driver was speeding up Greenwich Road. He does not estimate the actual speed at which the insured driver was travelling, however, I infer the insured driver was travelling more than the 40 kph speed limit at that point on the roadway and I also note the observation of Mr Bowes that he does not believe the accident would have happened if the insured driver was not speeding.
21.	Regarding the statement of the insured driver, I do not accept he was travelling at about 40 kph however, I accept that he was, immediately prior to the accident, driving continuously along Greenwich Road, and had not parked his vehicle at any time at the side of the road outside the IGA store.
22.	I do not accept the claimant drove his vehicle a very short distance into Handcock Lane to execute the U-turn. I do not except the claimant’s statement that the insured vehicle was parked illegally outside the IGA store, and I do not accept when the claimant was about to turn his vehicle into Handcock Lane, he looked in his side rear view mirror and there was no vehicle approaching from the rear. I do not accept that he looked, because if he had looked, he would have seen the insured driver approaching from the rear.
23.	I therefore find the insured driver negligent in the driving of his vehicle at a speed which was excessive in the circumstances having regard to the fact he was travelling in a 40 kph zone and whilst driving along Greenwich Road, he was not keeping a proper lookout when approaching the intersection with Handcock Lane.
24.	I therefore find the claimant was not wholly at fault in causing the accident.
Was the accident caused mostly by the fault of the claimant?
25.	The onus of proving contributory negligence rests upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
26.	In Manley vs Alexander (2005) HCA 79 2005 80 ALJ R413 at [11] the majority of the High Court emphasised the duty of a driver to give” reasonable attention to all that is happening on and near the roadway that might present a source of danger “ also see Jarzebski and anor v Jiminez 2006 ( NSW) CA 104 at [23].
27.	A claimant who asserts a motorist is negligent in fighting to keep a proper lookout must establish the motorist had the opportunity to see the claimant and failed to do so. This is consistent with the principle in Manley v Alexander that is the duty of a motorist to be observant of all possible sources of danger on the road.
28.	Section 5R (1) the Civil Liability Act NSW 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm .The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time see s 5R (2) (a) and (b )
29.	Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)
(a)	the probability that the harm would occur if care were not taken;
(b)	the likely seriousness of the harm;
(c)	the burden of taking precautions to avoid the risk of harm;
(d)	the social utility of the activity that creates the risk of harm, and
(e)	the determination of whether a claimant has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case, see Serrao ( by his tutor) Serrao v Cornelius (2) 2016 NSW CA 231 (at [61]) and Tand X Company Ltd v Chivas 2014 NSW CA 235 at [51].
30.	I find the claimant was not keeping a proper lookout in the circumstances and should have seen the insured driver approaching from the rear. He should have brought his vehicle to a halt and allowed the insured driver to proceed through the intersection. If the claimant had looked in his rear view mirror prior to attempting to make the U-turn at the intersection, he would have seen the insured driver travelling up Greenwich Road towards the intersection.
31.	I note with regard to contributory negligence it is submitted by the insurer that such contributory negligence is greater than 61%. I find the claimant did not look in his rearview mirror prior to attempting to execute the U-turn at the intersection, and as such I find his contributory negligence was greater than 61%.
32.	At the assessment conference the solicitor for the insurer requested I do not make an assessment of contributory negligence and I therefore refrain from determining the precise degree of contributing negligence of the claimant.
FINDINGS
33.	I therefore find the accident of 16 June 2022 was not caused wholly by the fault of the claimant.
34.	I also find the accident of 16 June 2022 was caused mostly by the fault of the claimant.
COSTS AND DISBURSEMENTS
35.	The claimant is self represented and accordingly I make no award of costs.
CONCLUSION
36.	My determination of the Miscellaneous Claim is as follows:
(a)	For the purposes of s 3.11 of the Act, the motor accident was not caused wholly by the fault of the claimant. 
(b)	For the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the claimant.
(c)	Effective Date: This determination takes effect on 11 April 2022.
(d)	Legal Costs: I make no award of costs as the claimant is self represented. 
LEGISLATION
37.	In making my decision I have considered the following legislation and guidelines:
(a)	the Act.
(b)	Motor Accident Injuries Act Regulation 2017;
(c)	Motor Accident Guidelines 2020, and
(d)	Civil Liability Act 2002.