Background
Mrs Nasr, the claimant, was injured in a car park, when Mr Fawcett (QBE’s Insured driver) collided with the left-hand side of her vehicle. The claimant then lost control of her vehicle, driving through a fence before colliding with a tree.
Mrs. Nasr’s vehicle was insured by NRMA.
Mrs. Nasr initially lodged a claim against her insurer NRMA. However, at the 26 week mark, her statutory benefits claim was denied on the basis she was wholly or mostly at fault. It was then she lodged a claim with QBE.
QBE submitted there were 2 accidents, the initial accident with Mr Fawcett, and a second accident when she lost control of her vehicle. It was submitted that the second accident was caused by either a medical episode or the claimant accidentally pressing the accelerator rather than the brake.
Examination
Member Plibersek was tasked with determining the dispute. To do this, he examined the weight of the material before him and the extent to which that impacted on his ability to make relevant findings of fact.
It is common knowledge that though members are not bound by the rules of evidence, a tribunal is however not precluded from adopting or applying them.
Member Plibersek was faced with limited evidence including:
- A claimant who had no recollection of her vehicle running out of control; and
- Only hearsay evidence from Mr Fawcett (a transcript of the Statement provided to the Police).
In particular, he did not have evidence from Mr Fawcett to support the submission that there was a ‘second accident’ caused by either a medical episode or the claimant accidentally pressing the accelerator rather than the brake.
Mr Fawcett, in his statement, admitted that he did not see what happened after the initial collision.
Based on the evidence before him, he found that:
- As there was no evidence supporting the submission the claimant suffered a medical episode or pressed the accelerator instead of the brake; and
- Absent evidence of a delay between the two accidents; it ought to be considered as a single accident.
The result being a finding that Mr Fawcett caused the accident, with no contributory negligence on the part of the claimant.
Takeaway
This case is a reminder to insurers to ensure they have evidence to support their submission. Whilst the evidence rules do not apply, members will still have to make an assessment as to the strength of the insurer’s evidence before deciding whether to accept the claimant’s version.
If that evidence does not support the submission, or there is no evidence to support the submission, a Member is unlikely to accept that submission.
Post by Hicksons Partner, Naomi Tancred, and Special Counsel, Laura D'Alessandri.