AAH v QBE Insurance (Australia) Ltd
[2021] NSWPIC 58
•29 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | AAH v QBE Insurance (Australia) Ltd [2021] NSWPIC 58 |
| APPLICANT: | AAH |
| RESPONDENT: | QBE Insurance (Australia) Ltd |
| MEMBER: | Mr Anthony Scarcella |
| DATE OF DECISION: | 29 March 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the applicant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of benefits incurred more than 26 weeks as applicant was mostly at fault; collision reconstruction report; applicant crossed two of three lanes of the roadway and was struck in the third lane; pushing a large red electric bicycle; insured driver being unable to take evasive action; applicant failed to use an available pedestrian crossing; placed herself in a position of peril; insurer alleged 70% contributory negligence; did not see the insured driver’s vehicle prior to the accident; COPS event report; factual investigation report; apportionment of culpability; the driver should take greater care for the pedestrian and the pedestrian should take greater care for their own safety; Held- applicant’s evidence is inconsistent; applicant’s contribution to the motor accident significantly outweighed the insured driver’s contribution; motor accident caused mostly by the fault of the applicant; recovery of legal costs; exceptional circumstances not satisfied; applicant entitled to the payment of legal costs at the regulated maximum in each dispute. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017, the motor accident was caused mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017, the motor accident was caused mostly by the fault of the claimant. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,652 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, Clause 3 (d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether the injured person was mostly at fault.
At about 6.40 am on 4 November 2019, the Claimant was crossing a public road when she was struck by a motor vehicle insured by the Insurer and driven by MQ (the Insured Driver).
On 14 November 2019, the Claimant lodged an application for personal injury benefits.
The Claimant received statutory benefits in the form of weekly payments and treatment and care expenses in the 26-week period following the motor accident until 2 June 2020 and 5 May 2020 respectively.
On 5 May 2020, the Insurer notified the Claimant that it had decided that the claimant was mostly at fault in the subject motor accident.
On 1 June 2020, the Claimant made an application for an internal review of the Insurer’s decision.
On 23 June 2020, the Insurer conducted an internal review and issued a Certificate of Determination purportedly confirming its original decision by deciding that it was entitled to reduce the statutory benefits payable in respect of the motor accident by 70% in accordance with section 3.38 of the MAI Act. The Insurer stated that its decision was a reviewable decision under Schedule 2 Clause 3(g) of the MAI Act.
On 21 July 2020, the Claimant lodged the present application and supporting documents with the Dispute Resolution Service (DRS), now the Motor Accidents Division of the Personal Injury Commission (the Commission).
On 11 August 2020, the Insurer lodged the reply and supporting documents with DRS.
At the teleconference on 2 November 2020, the parties agreed as follows:
(a) That the dispute between the Claimant and the Insurer is in respect of the cessation of benefits incurred more than 26 weeks after the subject motor accident, based on the Insurer’s decision that the Claimant was mostly at fault under sections 3.11 and 3.28 of the MAI Act.
(b) That the Insurer bears the onus of proof in respect of the issue as to whether the Claimant was mostly at fault in the motor accident.
(c) That the matter could be determined by me ‘on the papers’.
On 9 November 2020, the Claimant lodged and served a collision reconstruction report by Mr Nigel McDonald dated 23 October 2020. In the Insurer’s further written submissions dated 23 November 2020, the Insurer objected to the Claimant’s reliance on Mr McDonald’s collision reconstruction report on the basis that the proposed lodgment and service of the report was not notified at the teleconference and that to admit it into evidence would severely prejudice the Insurer by it having insufficient opportunity to respond to the report, if it chose to do so.
On 23 November 2020, I communicated the following to the parties’ legal representatives:
“I refer to Mr Ramsay’s written submissions for the Insurer dated 23 November 2020 and, in particular paragraphs [2] to [7] inclusive.
I indicate for the parties’ assistance, that my preliminary view is that I should allow the Claimant to rely on the report of Nigel McDonald of Collision and Safety Pty Limited, subject to allowing the Insurer the opportunity to consider whether, to cure any alleged prejudice, it wishes to engage an expert witness in response.
If the Insurer chooses the latter course, then I propose to convene a teleconference for the purpose of amending the current timetable. If the Insurer wishes to maintain its objection to the admission of the report, I will convene a teleconference for the purpose of giving the parties the opportunity of making oral submissions, after which I will provide reasons for my procedural decision ex tempore. If the Insurer accepts my preliminary view and proposes not to engage an expert in response but rely on its further written submissions directed at the expert report, then, the current timetable will be maintained.
If either party requires a further teleconference for one of the reasons referred to above, then I can indicate that Monday, 30 November 2020 at 10:30 am is a suitable time for me.”
On 24 November 2020, the Insurer advised that it did not intend to seek an accident reconstruction report in response to the report of Mr McDonald; that it did not require a further teleconference; and that it relied on its written submissions.
DOCUMENTS CONSIDERED
I have considered the documents provided in the DRA Application form (Application) dated 21 July 2020 and the DRS Reply form (Reply) dated 11 August 2020 and the following further documentation provided by the parties:
(a) Collision Reconstruction Report by Mr Nigel McDonald of Collision and Safety Pty Limited, Consulting and Forensic Engineers dated 23 October 2020.
(b) The Claimant’s supplementary written submissions dated 9 November 2020.
(c) The Claimant’s written submissions on costs dated 9 November 2020.
(d) The Insurer’s further written submissions dated 23 November 2020.
SUBMISSIONS
The Claimant provided written submissions on the substantive issues dated 20 July 2020 and 9 November 2020.
The Claimant’s principal submissions may be summarised as follows:
(a) The Insurer does not deny that its Insured Driver owed a duty of care to the Claimant but alleges 70% contributory negligence on the part of the Claimant for the motor accident. The Claimant concedes that her actions contributed to the motor accident and to her injuries but disagrees with the Insurer’s decision in respect of contributory negligence. The Insurer bears the onus of proving that the Claimant was mostly at fault. The Insurer has failed to discharge this onus.
(b) The Claimant referred to and relied on the principles established in Pennington v Norris[1] (Pennington) and Podrebersek v Australian Iron and Steel Pty Ltd[2] (Podrebersek), to which I will refer later.
(c) The Claimant was crossing the road right before an intersection, where there was a wide median strip for pedestrians. The accident scene was well lit. The Claimant was wearing a bright red jacket that would have been visible from afar and her electric bicycle was bright red in colour.
(d) The Insured Driver should have taken greater care by reducing her speed when approaching the intersection. Had she done so, the Insured Driver would have seen the Claimant early enough to avoid the accident, particularly because the Claimant had already crossed two of three lanes of the roadway and was struck in the third lane.
(e) The Insured Driver did not sound her horn or swerve her vehicle onto the wide median strip to avoid the collision.
(f) A diligent driver keeping a proper lookout would have observed the Claimant and would have been able to slow, stop, swerve, brake, sound warning or otherwise control the vehicle so as to avoid a collision with the Claimant.
(g) The Insured Driver’s degree of departure from the standard of care was greater than the Claimant’s. The Insured Driver should be found mostly at fault.
(h) The Claimant referred to and relied on the collision reconstruction report by Mr Nigel McDonald of Collision and Safety Pty Limited, Consulting and Forensic Engineers dated 23 October 2020. Mr McDonald critically analysed the evidence; inspected the roadway; made observations of the dimensions of the roadway; and provided his expert opinion based on his experience in traffic related matters.
(i) Mr McDonald’s opinion was entirely consistent with the objective facts, namely, that the Claimant was pushing a large red electric bicycle at the time of the accident; if the Claimant was not immediately obvious to the Insured Driver, her bicycle should have been obvious to her; and the Insured Driver did not see the Claimant because she was not looking ahead of her at the time.
(j) The Insurer relied on T and X Company Pty Ltd v Chivas[3] (Chivas) on the basis that it was analogous to the facts in this matter. In Chivas, the pedestrian in that case was crossing against a red signal at a pedestrian crossing. The case does not assist the Insurer.
(k) The Insured Driver did not keep a proper lookout. The Claimant looked prior to crossing the roadway. She was highly visible. The Insured Driver ran the Claimant down. The Claimant was crossing the road as safely as the conditions permitted.
[1] Pennington v Norris (1956) 96 CLR 10 at 16).
[2] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533.
[3] T and X Company Pty Ltd v Chivas [2014] NSWCA 235.
The Insurer provided written submissions on the substantive issues dated 11 August 2020 and 23 November 2020.
The Insurer’s principal submissions may be summarised as follows:
(a) The Insurer conceded that the Insured Driver owed the Claimant a duty of care and that there had been some negligence on the part of its Insured Driver. However, the culpability of the Claimant far outweighed that of the Insured Driver, given the actions of the parties in this particular instance.
(b) The Insurer referred to and relied on the balancing exercise approach to apportionment espoused in Podrebersek in conjunction with the application of section 5R of the Civil Liability Act 2002 (the CLA).
(c) Guidance should be taken from the approach of the majority of the Court of Appeal in Chivas. In the present case, it was the unpredictable actions of the Claimant that had a far greater impact on the collision occurring than the prudent actions of the Insured Driver and therefore, the Claimant should bear a greater relative responsibility for the collision. An assessment of contributory negligence along the lines in Chivas, namely, 75%, would be appropriate. The Claimant’s submission that the Chivas decision can be distinguished because of a modestly different factual scenario, namely, crossing against a red light at a pedestrian crossing, is unfounded.
(d) Contrary to the Claimant’s submissions, the Insured Driver did take steps to avoid the collision as best as she could in the circumstances. The Insured Driver saw the Claimant four or five metres prior to the collision and attempted to swerve and brake but the median strip to her right prevented her from swerving more than she did.
(e) The Claimant’s actions in crossing in moderate traffic at a point in the roadway where it was unsafe to do so, contributed to the Insured Driver being unable to take evasive action.
(f) The Insured Driver stated that vehicles were travelling past her in lane 2. Contrary to the Claimant’s submission that the Insured Driver had a clear view of her prior to her crossing the roadway because there were no buses travelling in the bus lane in lane 1, the Insured Driver did not have a clear and unencumbered view of the Claimant due to the vehicles travelling past her in lane 2.
(g) The Claimant’s contention that she checked for vehicles, decided it was safe to cross the roadway but did not see the insured’s vehicle before the collision, was indicative that she failed to keep a proper lookout. She failed to heed the presence of vehicles on the roadway before crossing.
(h) The Claimant failed to use an available pedestrian crossing. The police documents suggested that the nearest pedestrian crossing was 700 metres from the accident site and the Verifact report suggested 350 metres. The Claimant had an electric bicycle available to her to traverse the above distances and cross the roadway safely at a pedestrian crossing.
(i) The Claimant failed to have adequate regard for her own safety and placed herself in a position of peril. The Claimant’s decision to attempt to cross at the point she did on the roadway indicated that she did not appreciate the danger she was in and did not have regard for her own safety. Crossing three lanes of moderate traffic in a 70 km/h speed zone on a busy road in morning peak hour meant that she needed to ensure it was safe to cross when she did so. It was not. The Claimant should have been aware of these dangers because she lived locally and was aware of the roadway. The independent witness, DG, stated that the Claimant crossed the roadway slowly, seemingly unaware of the dangers presented by other vehicles around her.
(j) The Claimant’s questionnaire response to Verifact stating that she did not see the insured vehicle prior to the collision or other vehicles before she crossed the roadway was inconsistent with the evidence. The traffic was variously described as moderate or heavy. The insured vehicle was travelling at the speed limit and ultimately collided with the Claimant. DG stated that there were other vehicles travelling in lane 2 at the time.
(k) The police and the independent witness, DG, identified the Claimant as being at fault for the collision.
(l) The conclusions reached in the collision reconstruction report by Mr McDonald do not assist the decision-maker because the matter is one that should be determined on the consideration of the facts at hand from the various witnesses included in the material.
(m) Further, the conclusions of Mr McDonald are at odds with the evidence referred to in the submissions above.
(n) Mr McDonald opined that the Claimant would have been entirely visible to the Insured Driver for the duration of her crossing of the eastbound lanes on the roadway. However, he acknowledged that there was evidence that other vehicles had to swerve to avoid the Claimant, which suggested that there were vehicles on the roadway that would have obscured the Insured Driver’s view of the Claimant.
(o) Mr McDonald opined that the Insured Driver had sufficient time and distance to respond to the Claimant’s presence on the roadway and avoid a collision entirely. She should have sounded her horn to warn the Claimant of her presence. She failed to slow or otherwise react in a manner that avoided a collision. The evidence of the Insured Driver and the independent witness, DG, support the submission that the other vehicles on the roadway impaired the Insured Driver’s vision of the Claimant on the roadway. Four or five metres prior to the collision, the Insured Driver attempted to swerve and brake but could not swerve sufficiently due to the median strip to her right.
(p) The conclusions reached by Mr McDonald did not add to the facts in evidence and should be ignored.
(q) The Claimant should be determined to be mostly at fault for the motor accident.
I was not required to consider the Insurer’s submissions against admitting Mr Nigel McDonald’s collision reconstruction report for the reasons referred to in [13] above.
LEGISLATION
In making my decision, I have considered the following legislation and guidelines:
(a) The MAI Act.
(b) Motor Accident Injuries Regulation 2017 (the Regulation).
(c) Motor Accident Guidelines 2017 (the Guidelines).
(d) The CLA.
REASONS
The relevant legislation and legal principles
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 3.11 and section 3.28 of the MAI Act relevantly provide that statutory benefits by way of weekly payments (section 3.11) and treatment and care expenses (section 3.28) are not payable beyond 26 weeks from the date of the motor accident in the event that the motor accident was caused wholly or mostly by the fault of the injured person.
Section 3.11(2) and section 3.28(2) of the MAI Act provide that 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 was greater than 61%.
In this case, the Insurer alleged 70% contributory negligence on the part of the Claimant and that, accordingly, the Claimant was mostly at fault in the motor accident.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
Section 3B(2)(a) of the CLA provides that Divisions 1-4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents.
Section 5B(1) of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and, the risk was not insignificant; and, in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 5B(2) of the CLA provides that in determining whether a reasonable person would have taken precautions against the 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.
Whether there is any contributory negligence requires, pursuant to section 5R of the CLA, a determination of whether a reasonable person in the Claimant’s position, would have crossed Victoria Road, Rydalmere where and when she did, knowing what she did or what she ought to have known. Section 5R of the CLA imposes an objective test.
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.
In Podrebersek, the High Court of Australia confirmed that the following considerations should be made when determining the apportionment of culpability between parties:
(a) The culpability of both parties; that is, the degree of departure and standard of care of the reasonable man; Pennington; and
(b) The relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[4] (Stapley); Smith v McIntyre[5] (McIntyre) and Broadhurst v Millman[6] (Broadhurst).
(c) The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.
[4] Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
[5] Smith v McIntyre [1958] Tas SR 36 at 42-49.
[6] Broadhurst v Millman [1976] VR 208 at 219.
Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control: Hallowell v The Nominal Defendant[7] (Hallowell).
[7]Hallowell v The Nominal Defendant [1983] Qld R 266, per Jones J.
The parties addressed the principles espoused in Pennington and Podrebersek in their respective written submissions.
The parties also addressed Chivas in their respective written submissions. In Chivas, Basten JA commented on section 5R of the CLA by expressing the opinion that people are to take responsibility for their own lives and safety and stated at [54]:
“The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.”
In Chivas, Basten JA concluded at [57]:
“The weighty factor in assessing relative responsibility for the accident was the unpredictable step taken by the deceased in seeking to cross the road against a red pedestrian light and in the face of oncoming traffic. Giving due respect to the careful reasoning of the trial judge, in my view, according proper weight to that factor in the mix of the identified considerations required a far higher level of contributory negligence. I would assess contributory negligence at 75%.”
I will now review the relevant evidence in this matter and apply the legislation and legal principles referred to above.
The motor accident site
The uncontested evidence relating to the motor accident and the accident site may be summarised as follows:
(a) At about 6.40 am on Monday, 4 November 2019, the Claimant was crossing Victoria Road (outside 488 Victoria Road)[8] in Rydalmere NSW from the northern side of the road to the southern side of the road, before the intersection between Victoria Road and Kirby Street.
[8] R4 NSW Police Force COPS report at page 2
(b) The Claimant was wearing a helmet and was pushing an electric bicycle whilst crossing the roadway.
(c) Victoria Road is a sealed arterial road that follows an east-west alignment at the accident site.
(d) There were three eastbound lanes and two westbound lanes. The first eastbound lane from the north side of Victoria Road was a bus lane.
(e) The eastbound lanes and westbound lanes of Victoria Road were separated by a raised median strip.
(f) There were no traffic lights or pedestrian crossings at the spot where the Claimant was attempting to cross Victoria Road.
(g) The roadway was straight and level at the accident site.
(h) The intersection with Kirby Street was not controlled by traffic signals or any marked pedestrian crossing.
(i) The speed limit at the accident site was 70 km/h.
(j) The weather was fine and the accident site was illuminated with natural daylight.
(k) There were no buses travelling in the bus lane on Victoria Road at about the time of the accident.
(l) The Claimant crossed from the northern kerb of Victoria Road, across the bus lane (lane 1) and continued into lane 2 and lane 3 of the eastbound lanes.
(m) At all material times, the Insured Driver’s motor vehicle was travelling eastbound along lane 3.
(n) The Insured Driver’s motor vehicle collided with the Claimant with the point of impact being in lane 3 on Victoria Road near and west of Kirby Street.
The Claimant’s evidence
In evidence, there is the Claimant’s application for personal injury benefits dated 14 November 2019. The Claimant provided the following very brief description of the motor accident:
“I was hit while crossing the road.” [9]
Amongst other things, the Claimant also provided a description of her injuries.
[9] A2 at page 3.
On 19 December 2019, the Claimant attended the Parramatta Police Station in the company of her solicitor[10] and provided a statement to police which was recorded in the notebook of Constable Dino Juklen and signed by the Claimant.[11] I will now refer to the relevant parts of that statement.
[10] A9 NSW Police Force COPS report dated 25 June 2020 at page 3.
[11] A9 at pages 42-47 of Constable Juklen’s notebook.
The Claimant provided the following description of the motor accident to Constable Juklen:
“I was pushing my bycycle [sic]. I was crossing the road, Victoria Road in Rydalmere. There was [sic] no traffic lights and no pedestrian crossing where I crossed the road. I looked both ways before I crossed. The car travelling in lane 3 of 3 along Victoria Road towards the city. I did not notice the car. Hit me [illegible] … me to the right side of me. I flew about 3 metres from where the car hit me. I tumbled few times on the car before landing on the road on my right side of my body. I lost consciousness when I saw a lady and a man helped move me to the side. Police and ambulance came. Shortly after where they [sic] conveyed to Westmead Hospital.”[12]
[12] A9 at pages 43-44 of Constable Juklen’s notebook.
The Claimant further stated that the Insured Driver stopped after the collision because she (the Claimant) took a photograph of the number plates of the vehicle that collided with her. She did not exchange details with the Insured Driver because she was taken to hospital. The Claimant identified the Insured Driver as being a female with short hair. In response to questions from Constable Juklen, the Claimant provided particulars of her injuries, her post-accident treatment and admission to Westmead Hospital.
On 16 January 2020, a Verifact investigator emailed the Claimant’s solicitor a list of questions for the Claimant’s completion together with a Google aerial map.[13] In a letter dated 13 March 2020, the Claimant, through her lawyers, provided written responses to the Verifact investigator’s list of questions.[14] I will now refer to the relevant parts of the Claimant’s responses.
[13] A7.
[14] A8.
The Claimant stated that she is 56 years of age, married with a 32-year-old son. At the time of the motor accident, the Claimant was employed by BM Pty Ltd as a factory worker.
The Claimant stated that, on 4 November 2019, she got up at 5:30 am and prepared to leave for work. She was not tired. She left home at about 6:35 am pushing her electric bicycle. She rode her electric bicycle to work five to six days a week and had been doing so since about September 2019, when the factory moved from Rydalmere to Silverwater. It was her practice to get on her bicycle and ride to work once she had crossed Victoria Road, Rydalmere.
The Claimant stated that, at the time of the motor accident, she was wearing non-prescription sunglasses, a red jacket, a dark blue singlet, black pants and safety helmet.
The Claimant stated that, after she left home for work on 4 November 2019, she walked along the footpath of Victoria Road whilst pushing her electric bicycle. She stopped at the intersection of Victoria Road and Kirby Street and looked both ways before crossing the road from the northern side of Victoria Road. She did not see any vehicle coming in her direction. When she was a few steps away from the median strip, she was hit by a vehicle.
The Claimant stated that there was a wide median strip in the middle of the roadway at the point where she was crossing. She did not walk down to the traffic light controlled pedestrian crossing outside 440 Victoria Road, Rydalmere, opposite the Rydalmere Public School, because it was a fair distance from where she was staying and in the opposite direction to where she was heading. Attached to her response to the list of questions was a Google aerial map on which she marked the point of the commencement of her journey across Victoria Road (near the intersection of Kirby Street) and the point of impact with the Insured Driver’s vehicle (lane 3).[15] Also attached to the response was a photograph of the Claimant’s damaged red electric bicycle.[16]
[15] A8 at page 15.
[16] A8 at page 14.
The Claimant stated that, at the time of the motor accident, the weather was sunny, visibility was high and the street lights were off. Before she commenced across Victoria Road, she looked both ways but mainly at the eastbound traffic coming in her direction. She did not see any cars travelling in her direction before commencing to cross the road. She denied that any eastbound traffic near where she was crossing, stopped or took any evasive action to avoid her on the roadway. She did not see any eastbound vehicle as she was crossing the roadway. She was pushing her bicycle on her right hand side.
The Claimant stated that she did not see the Insured Driver’s vehicle prior to the accident. She stated that she was hit whilst she was in lane 3, being the lane closest to the median strip. The first time she saw the vehicle was after the collision.
The Claimant denied being distracted before and whilst she was crossing Victoria Road. Nothing was affecting her vision.
The Claimant stated that after the collision, her body was projected into the air. She felt her body rotating a few full turns whilst airborne before landing on the right side of her body a few metres away. She recalled that a lady and a man approached her. She was dazed, unable to move and in pain. She recalled a police officer attending the scene. She recalled that she was later helped to the roadside by the police officer and the man who had come to her assistance. She recalled that her housemate attended the accident scene. She was spoken to by a police officer and other people at the scene but she was unable to understand most of what was said as her English is poor. She requested her housemate to inform her husband of the accident. She was conveyed by ambulance to Westmead Hospital.
The Claimant stated that she did not make a statement to the police at the accident scene. On 19 December 2019, after she was discharged from hospital, she attended Parramatta Police Station where she made a report to Constable Juklen. Constable Juklen took down details of the motor accident and then asked her to sign a document.
The Claimant stated that she had not received or been informed that she would receive a Traffic Infringement Notice or Summons in respect of the motor accident.
The Claimant provided details of her motor accident related injuries and post injury treatment.
The Claimant’s application for internal review dated 1 June 2020[17] had attached to it two colour photographs, presumably marked up by the Claimant with a red line leading to the letter “X”, indicating where she commenced to cross the roadway and where she was struck by the Insured Driver’s vehicle on the roadway.
[17] A5 at pages 3-4.
The Insured Driver’s evidence
In evidence, is the Insured Driver’s QBE CTP insurance accident report form dated 18 December 2019.[18] I will now refer to the relevant parts of the report form.
[18] R3 pages 1-4.
In the report form, the Insured Driver recorded the motor accident as having taken place in Victoria Road, near Kirby Street in Rydalmere on 4 November 2019 at 6:45 am. She estimated her speed at the time of the impact to have been between 40 km/h and 50 km/h. The roadway was sealed and dry. She provided the following description of the motor accident:
“At approximately 6:45 am, I was driving east on Victoria Road, near Kirby Street Rydalmere at approximately 50 km/h or less in a 70 zone due to traffic, with my headlights on. There was a bus lane, a second lane and I was in the furthest right lane. A lady on foot with a bicycle and wearing a children’s helmet crossed in front of me suddenly to my left. I braked immediately and swerved to the right trying to miss her, but I felt something hit the car. I got out of the car immediately to check on the lady and saw her sitting on the road adjacent to my car. I asked her if she spoke English and she shook her head no. There were people around who offered to help. I called 000 and a lady asked me if I was OK and asked me if I wanted her to speak to 000 on my behalf. I said yes please. The lady gave the information to 000. The police and ambulance arrived. The police asked questions to myself, the lady and witnesses. The ambulance provided assistance to the lady and took her to Westmead hospital. She was conscious and speaking to an Asian male who arrived after the accident. The Asian male had recognised the lady and spoke with her as well as the police.”[19]
[19] R3 at page 2.
The report form accident site diagram depicted the Insured Driver’s vehicle impacting the Claimant in lane 3 of the eastbound lanes.
Attached to the Verifact factual investigation report is the Insured Driver’s statement dated 15 January 2020.[20] I will now refer to the relevant parts of the statement.
[20] R5 at pages 76-83.
The Insured Driver stated that every Monday she would leave home between about 6:15 am and 6:30 am and drive to her son’s home in Belrose to mind her granddaughter for the day whilst her son and his wife were at work. She took the same route each Monday, namely, from her home to Park Street, then make a right hand turn into Victoria Road and travel eastwards towards Top Ryde, where she would then turn left and travel towards Belrose.
On the day of the motor accident, the Insured Driver stated that she left home at about 6:30 am. She drove along her street to Park Road to its intersection with Victoria Road, where she stopped at an intersection controlled by traffic lights. When the traffic lights turned green, she made a right hand turn into lane 3 in Victoria Road. The eastbound traffic along Victoria Road was heavy. She accelerated to about 40 km/h and came to a stop opposite Rydalmere Primary School at a set of red traffic lights. When the traffic lights turned green, she accelerated to about 50 km/h. The car travelling to her left in lane 2, accelerated ahead of her. She was aware from experience that traffic came out of Kirby Street at Victoria Road on both sides of the roadway and this was the reason she was only travelling at 50 km/h. As she approached the intersection of Kirby Street, other cars were passing her in lane 2 travelling eastward.
The Insured Driver stated that just before she reached the Kirby Street intersection, she saw the Claimant pushing a pushbike on her right hand side in lane 2 on Victoria Road, about four or five metres to the Insured Driver’s left. The Claimant was walking from the Insured Driver’s left side of the roadway towards the middle of the road. The Insured Driver stated that she braked as hard as she could and turned her steering wheel to the right to avoid colliding with the Claimant. There was a concrete median strip to her right, so she could not turn too much. When the Insured Driver saw the Claimant, the latter seemed to be looking at her but had no expression on her face. As the Insured Driver passed the Claimant, she heard an impact to her car. She estimated that she was travelling at less than 50 km/h at the time. She stopped her vehicle in the third lane, alighted from her vehicle and approached the Claimant, who was sitting on the ground, to check on her condition. She spoke to the Claimant but the latter did not appear to understand her.
The Insured Driver stated that the police attended the accident scene first followed, a short time later, by the ambulance. Whilst ambulance paramedics were treating the Claimant a Chinese man, who was going past stopped and spoke to her. He stated that he knew the Claimant and lived nearby.
The Insured Driver stated that at the time of the motor accident it was almost daylight and that she had no problems seeing. She recalled that the Claimant was Chinese, wearing a red children’s helmet, long pants, possibly track pants, and a long sleeved shirt.
The Insured Driver stated that at the time of the motor accident she was not on her mobile telephone; her radio was not on loud; her vision was not obstructed; and she was not tired.
The Insured Driver opined that the cause of the motor accident was the Claimant’s decision to cross a very busy road at the wrong place. She stated that the Claimant saw her and could have stopped walking before the accident. The Insured Driver could not avoid the accident.
The Insured Driver marked the positions where she first saw the Claimant on the Google aerial map. However, the reproduction of the Google aerial map in evidence was of such poor quality that the marking could not be seen.
DG’s evidence
Attached to the Verifact factual investigation report is DG’s statement dated 15 January 2020.[21] I will now refer to the relevant parts of the statement.
[21] R5 at pages 87-92.
DG stated that, on Monday, 4 November 2019, she left her home in Blacktown at about 5:15 am to drive her daughter to her workplace in Lane Cove. She dropped off her daughter at Lane Cove just before 6:00 am and then started to drive back home. The main roads she drove on in this journey were the Great Western Highway, Victoria Road and Lane Cove Road. She was familiar with these roads because she drove and picked up her daughter from work five times a week.
DG stated that on her way back home the westbound traffic on Victoria Road was moderate, as was the eastbound traffic. She was driving along the middle of three lanes in Victoria Road westbound. The weather was clear and dry. Light and visibility was good.
At about 6:40 am, as DG was approaching the Kirby Street intersection on Victoria Road westbound in lane 2 in light to medium traffic, she saw the Claimant crossing Victoria Road from the northern kerb towards the centre of the roadway. The Claimant was in the bus lane (lane 1) and was wheeling a pushbike on her right hand side. DG observed that the Claimant’s “feet were doing the old person shuffle”.[22] She observed a vehicle in lane 2 eastbound in Victoria Road swerve into the bus lane to avoid colliding with the Claimant. The Claimant did not react to the swerving vehicle, which gave her the impression that the Claimant either did not see the vehicle or was not concerned about it.
[22] R5 at page 89 at [13].
DG observed the Claimant continue to shuffle towards the middle of the roadway and saw the Insured Driver’s vehicle travelling eastbound in lane 3, brake and hit the Claimant. She did not observe the Insured Driver swerve because she concluded that there was no room for her to do so. The Claimant’s bike hit the front passenger side of the Insured Driver’s vehicle and the Claimant went up onto the front bonnet of the vehicle, rolled along it and came to rest in lane 2.
DG stated that she turned left into Kirby Street on the opposite side of the road, got out of her car and went over to render assistance. She observed the Claimant sitting on the roadway in lane 2. She was of Asian appearance, in her late 60s, tiny and short. She was wearing a floral jacket or shirt and slip-on shoes. The Insured Driver’s vehicle had stopped in lane 3 and a lady was directing traffic into the bus lane. DG approached the Claimant to check on her well-being. A nurse and two council workers assisted the Claimant off the ground and carried her to the northern footpath on Victoria Road. A police officer arrived on a motorcycle and spoke to witnesses. DG provided her contact details and was informed by the police officer that he would contact her. She has not been contacted by the police since the motor accident. She did not take the contact details of the other witnesses.
DG stated that she observed an Asian man walking up to the accident scene. He stated that he lived in the same complex as the Claimant, who spoke Cantonese. He assisted with the interpreting.
DG opined that the accident was caused by the Claimant crossing the road at the wrong place.
NSW Ambulance report
In evidence, is the NSW Ambulance Patient Health Care Record dated 4 November 2019.[23] I will now refer to the relevant parts of the record.
[23] R2.
The record noted that on arrival of the ambulance paramedics, the Claimant was sitting on the pavement. Witnesses reported that the Claimant was walking her pushbike across the main road when she was struck on her right side at approximately 50 km/h, rolling 360° across the bonnet of the car that struck her. The Claimant was wearing a helmet and did not suffer a loss of consciousness.
NSW Police Force documents
In evidence, are documents produced by the NSW Police Force to the Claimant under the Government Information (Public Access) Act 2009 (the GIPA Act). I will now refer to the relevant parts of the police documents.
The finalised COPS event report dated 25 June 2020 provided a case narrative. The case narrative concluded that the cause of the motor accident was deemed to be the Claimant trying to cross Victoria Road near the intersection of Kirby Street during morning peak traffic time on 4 November 2019 at 6:40 am. The Claimant was hit by the Insured Driver’s vehicle when she attempted to cross the roadway with heavy traffic in both directions whilst walking her bicycle. There was no marked foot crossing or pedestrian crossing within the intersection. The nearest pedestrian crossing was at the intersection of Victoria Road and Park Road, some 700 metres from where the motor accident took place.
The COPS event report stated that the Claimant, a Chinese national, lived on Victoria Road and road her bicycle to work on most days. A witness who regularly travelled to work along Victoria Road reported seeing the Claimant nearly being hit by vehicles on other days prior to the motor accident.
The COPS event report recorded the Insured Driver’s version of events as follows:
“Travelling east upon Victoria Road when pedestrian pushing her bike tried to cross the road in heavy traffic and collided with her.”[24]
[24] A9 COPS event report at pages 1-2.
The COPS event report recorded DG’s version of events as follows:
“Witness stated she had seen the pedestrian tried across the road most mornings and nearly gets [sic] hit. Saw pedestrian walking across Road in heavy traffic and collided with vehicle 2 [Insured Driver’s vehicle].
Witness assisted pedestrian after she had been hit”[25][25] A9 COPS event report at page 2.
A later entry in the COPS event report recorded the following relevant case narrative:
“About 06:40 am on 4 November 2019, pedestrian was outside 488 Victoria Road, Rydalmere near Kirby Street. The pedestrian was wearing a helmet and pushing her ride bicycle when she came to a sudden stop on the side of the road. The pedestrian looked left and right before crossing Victoria Road and she sighted where there [sic] no vehicles travelling in a [sic] Eastern direction along Victoria Road. She commenced crossing the road when she arrived in the middle lane 3 of 3 on Victoria Road and collided with Vehicle 1 [the Insured Driver’s vehicle] travelling in the east bound lanes.
The pedestrian did not sight Vehicle 1 travelling in lane 3 of 3 along Victoria Road in an eastern direction and only felt the impact from Vehicle 1. Vehicle 1 hit the right side of the pedestrian with the front bumper. The pedestrian went airborne and tumbled whilst in the air then landed on her right side, where she lost consciousness shortly after. The pedestrian regained consciousness shortly after where she was assisted by members of the public. Police and Ambulance arrived to the scene shortly after where she was conveyed to Westmead Hospital for treatment for her injuries. …”[26]
[26] A9 COPS event report at page 2.
The COPS event report recorded that at about 6:30 pm on 19 December 2019, the Claimant attended Parramatta Police Station to report the incident to police. The Claimant was on crutches and accompanied by her solicitor. Police obtained a Form of Demand from the Claimant in Official Police Notebook F673340 pages 42-47. I have already referred to the Claimant’s police notebook statement above. Police also obtained a copy of the Claimant’s Westmead Rehabilitation Hospital rehabilitation summary plan, medication list and discharge documents.
The COPS event report disclosed that it was Senior Constable Nicholas McGrath attached to the Traffic Bikes Unit who attended the scene of the motor accident.
The Verifact factual investigation report
In evidence, there is a factual investigation report by Verifact dated 20 March 2020. I will now refer to the relevant parts of that factual investigation report.
The factual investigation report had attached to it, amongst other things, the signed statement of the Insured Driver, the signed statement of DG, the Claimant’s response to a questionnaire and a photographic schedule. I have already referred to the statements of the Insured Driver, DG and the Claimant’s response to the investigator’s questionnaire. The attached photographs and Google aerial photographs were of little assistance because of their extremely poor quality.
The factual investigation report provided a brief summary of the witness statements taken by the investigator and the Claimant’s response to his questionnaire. The report referred to a telephone conversation with Constable McGrath on 22 January 2020, wherein the latter informed the investigator that no party was charged or summoned in relation to the motor accident.
On 15 January 2020, one or more investigators engaged by Verifact attended the scene of the motor accident and provided a description of it consistent with the evidence referred to above. Inconsistent with the COPS event report, which had the nearest traffic control pedestrian crossing as being 700 metres away from the accident site, the investigator estimated that it was 350 metres west of the accident site.
Mr Nigel McDonald of Collision and Safety Pty Limited, Consulting and Forensic Engineers
In evidence, there is a collision reconstruction report prepared by Mr Nigel McDonald of Collision and Safety Pty Limited dated 23 October 2020 at the request of the Claimant’s lawyers. I will now refer to relevant parts of the report.
Mr McDonald holds a Bachelor of Engineering (Civil) with second class honours from the University of Technology, Sydney; a Certificate in Traffic Safety from the University of New South Wales; and a Certificate in Traffic Accident Reconstruction (I and II), Northwestern University, Illinois.
Mr McDonald visited the motor accident site on 23 October 2020 between 9.45 am and 10.00 am and provided a description of the road and road environment at the accident site which was consistent with the evidence. In addition, he stated that the road surface was 18.5 metres wide between constructed kerbs; that eastbound lanes 1 and 2 were 3 metres in width and lane 3 was 2.9 metres in width; and that opposing traffic flows were separated by a raised constructed median 1 metre wide, supplemented by a painted median that added an additional width of up to 3 metres near Kirby Street. Mr McDonald attached colour photographs of the accident site that were of a far superior quality to those attached to the Verifact factual investigation report.
Mr McDonald provided a detailed incident analysis that included collision dynamics, point of impact, the Claimant’s path to impact, the Claimant’s crossing time, vehicle speed, visibility to the pedestrian on the roadway and collision avoidance.
Mr McDonald reached the following conclusions:
(a) The Claimant commenced crossing the road around 4.6 to 5.7 seconds before impact.
(b) The Claimant would have been visible to the Insured Driver for the duration the Claimant was crossing the eastbound lanes.
(c) The Insured Driver had sufficient time to slow and stop to avoid a collision.
(d) The Insured Driver had sufficient time and distance to perceive and respond to the Claimant’s presence on the roadway in a manner akin to responding to a routine non-emergency situation and avoid a collision entirely.
(e) The Insured Driver could have sounded the vehicle horn to warn the Claimant.
(f) The Insured Driver did not slow or otherwise react in a manner that avoided a collision.
Consideration and findings
I give no weight to the evidence that the police took no action against either the Claimant or the Insured Driver. Whilst I note that the police deemed that the Claimant was the party at fault in the motor accident, I must assess the contributions of the respective parties based on the evidence before me and by applying the relevant legislation and legal principles to that evidence. For the same reasons, I give no weight to the Insured Driver’s layperson’s conclusion and DG’s layperson’s conclusion that the motor accident was the Claimant’s fault.
The COPS event report stated that a witness, who regularly travelled to work along Victoria Road, reported seeing the Claimant nearly being hit by vehicles on other days prior to the motor accident. The witness was not identified and there was no written statement taken by police or anyone else from the unidentified witness. I give the report no weight in this regard. In any event, my task is to assess the contributions of the respective parties in the subject motor accident based on the evidence before me.
The Insurer conceded that the Insured Driver owed the Claimant a duty of care and that there had been some negligence on the part of its Insured Driver. The Claimant conceded that her actions contributed to the motor accident. Each party alleged that the culpability of the other far outweighed the culpability of the other to such a degree that the other should be found to be mostly at fault within the meaning of sections 3.11(2) and 3.28(2) of the MAI Act.
The parties agreed that the considerations that should be made when determining the apportionment of culpability between parties were set out in Podrebersek, namely, both parties’ degree of departure and standard of care of the reasonable man; the relative importance of the acts of the parties in causing the damage; the comparative examination of the whole conduct of each negligent party and their significance in relation to the circumstances of the accident. Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control.
The Claimant submitted that Chivas did not assist the Insurer’s case because of the significant factual difference, that is, the pedestrian in that case was crossing a road against a red signal at a pedestrian crossing. The factual distinction is not an acceptable reason for ignoring the important principle expressed by Basten JA that people are to take responsibility for their own lives and safety. As between pedestrian and driver, each should be equally conscious of the factor that a motor vehicle has the capacity to cause far greater damage, when compared with the capacity of a pedestrian to cause damage; and they should adjust their behaviour accordingly. The driver should take greater care for the pedestrian and the pedestrian should take greater care for their own safety.
The Claimant’s evidence is inconsistent with the evidence of the Insured Driver and the independent witness, DG. The Claimant’s evidence is that, prior to commencing to cross Victoria Road, she looked in both directions and observed no vehicles coming in her direction from the west (to her right) in the eastbound lanes. She denied that any eastbound traffic near where she was crossing, stopped or took any evasive action to avoid her on the roadway. She did not see the Insured Driver’s vehicle prior to being struck. The first time she saw that vehicle was after the collision.
The Insured Driver’s evidence is that she was aware, from experience, that traffic came out of Kirby Street at Victoria Road on both sides of the roadway and this was the reason she was only travelling at about 50 km/h. As she approached the intersection of Kirby Street, other cars were passing her in lane 2 travelling eastbound. She first observed the Claimant pushing a pushbike on her right hand side in lane 2, about four or five metres to the left of her vehicle. She applied her brakes as hard as she could and turned her steering wheel to the right to avoid colliding with the Claimant. There was a concrete median strip to her right, so she could not turn too much. When the Insured Driver observed the Claimant, the latter seemed to be looking at her but had no expression on her face.
DG’s evidence was that she first observed the Claimant whilst she was shuffling across the eastbound bus lane (lane 1). She then observed a vehicle in lane 2 eastbound swerve into the bus lane to avoid colliding with the Claimant and that the Claimant did not react to the swerving vehicle. She described the eastbound traffic as moderate. I note that the police documents described the traffic as heavy. However, there is no argument that the motor accident occurred in the morning peak hour where traffic travelling eastbound were heading towards the city of Sydney. DG observed the Claimant continue to shuffle towards the middle of the roadway and saw the Insured Driver’s vehicle travelling eastbound in lane 3, brake and hit the Claimant. She did not observe the Insured Driver swerve.
DG provided a high level of detail in her evidentiary statement and she came across as an observant person. She was an independent witness. I prefer the evidence of DG over the evidence of the Claimant. I accept the evidence of the Insured Driver that, immediately prior to observing the Claimant four to five metres away to her left in lane 2 and applying her brakes as hard as she could, she was travelling at about 50 km/h.
I have referred to the conclusions reached by Mr McDonald in his expert report. He visited the motor accident site on 23 October 2020 without the benefit of the Claimant’s presence. The Claimant’s presence during the visit to the accident site may have assisted him in identifying where the Claimant began to cross the roadway and where she was struck, particularly because of the poor quality of the Google aerial photograph that was purportedly marked by the Claimant. Mr McDonald did not refer to the marked up photographs attached to the Claimant’s application for internal review dated 1 June 2020[27] and the application was not listed in the documents provided to him.
[27] A5 at pages 3-4.
Mr McDonald opined that the Claimant would have been entirely visible to the Insured Driver for the duration of her crossing of the eastbound lanes on the roadway. However, he acknowledged that there was evidence that another vehicle had to swerve to avoid the Claimant.
Mr McDonald dealt with DG’s observation of a vehicle in lane 2 swerving into the bus lane to avoid colliding with the Claimant by opining that a decision to change lanes left and pass behind the Claimant and presumably, not brake or stop, strongly suggested a non-emergency response. Further, the time he calculated it would take to perform such a lane change inferred some period of time had elapsed after the vehicle had passed the Claimant in the bus lane before she was run down. I found this opinion and inference unconvincing, having accepted the evidence of DG. Further, Mr McDonald did not adequately engage with the Insured Driver’s evidence that eastbound vehicles were passing her in lane 2.
I do not agree with the Insurer’s submission that I should ignore the entirety of Mr McDonald’s evidence. Mr McDonald’s description of the accident scene and the photographs attached to it were useful and tended to confirm what was already in evidence. However, because the parties conceded that their respective actions contributed to the motor accident, I am of the opinion that Mr McDonald’s evidence is of little assistance, in that, it did not add anything of significance to the evidence already before me. Mr McDonald’s evidence focussed on the Insured Driver’s acts of negligence. My task is to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
I make the following findings in relation to the motor accident:
(a) At about 6.40 am on Monday, 4 November 2019, the Claimant was crossing Victoria Road (outside 488 Victoria Road) in Rydalmere NSW from the northern side of the road to the southern side of the road, before the intersection between Victoria Road and Kirby Street.
(b) The Claimant was wearing a helmet and was pushing a red electric bicycle alongside her whilst crossing the roadway.
(c) Victoria Road, Rydalmere is a sealed arterial road that follows an east-west alignment at the accident site. There were three eastbound lanes and two westbound lanes. The first eastbound lane from the north side of Victoria Road was a bus lane. The eastbound lanes and westbound lanes of Victoria Road were separated by a raised median strip, supplemented by a painted median that added an additional width of up to 3 metres near Kirby Street. The roadway was straight and level at the accident site with a speed limit of 70 km/h.
(d) The weather was fine and the accident site was illuminated with natural daylight.
(e) There were no traffic lights or marked pedestrian crossings at or near the spot where the Claimant was attempting to cross Victoria Road. The nearest traffic light controlled crossing was some 350 metres away in the opposite direction in which the Claimant intended to travel.
(f) At all material times, the Insured Driver’s motor vehicle was travelling eastbound (towards Sydney) along lane 3 at about 50 km/h.
(g) The Claimant crossed from the northern kerb of Victoria Road, across the bus lane (lane 1) and continued into lane 2 and lane 3 of the eastbound lanes.
(h) At all material times, there were no buses travelling in the eastbound bus lane on Victoria Road.
(i) At all material times, the eastbound traffic on Victoria Road was moderate to heavy, being morning peak hour.
(j) Shortly prior to the motor accident, a vehicle travelling eastbound in lane 2 on Victoria Road, swerved into the eastbound bus lane to avoid colliding with the Claimant.
(k) Shortly prior to the motor accident, there were eastbound vehicles passing the Insured Driver’s vehicle in lane 2.
(l) The Insured Driver’s motor vehicle collided with the Claimant with the point of impact being in lane 3 on Victoria Road near and west of Kirby Street.
(m) The Insured Driver failed to keep a proper lookout; failed to sound her horn to warn the Claimant of her presence on the roadway; and failed to slow down and stop her vehicle in time to avoid colliding with the Claimant, despite having applied her brakes firmly and having attempted to swerve when she first observed the Claimant on the roadway.
(n) A reasonable person in the Claimant’s position, would not have crossed Victoria Road where and when she did, knowing what she did or what she ought to have known. The Claimant lived on Victoria Road, Rydalmere, not far from the motor accident site. She knew or ought to have known that Victoria Road was a busy arterial roadway, in particular, during the morning peak hour and that there was a probability of serious harm if care were not taken when crossing the roadway. Yet, she commenced to cross the roadway, wheeling an electric bicycle alongside her, without keeping a proper lookout and without observing the presence of eastbound vehicles approaching her, including a vehicle that swerved into lane 1 from lane 2 to avoid colliding with her. The Claimant placed herself in a position of peril. She knew or ought to have been conscious of the fact that a motor vehicle has the capacity to cause far greater damage, when compared with the capacity of a pedestrian to cause damage; and she should have adjusted her behaviour accordingly. She should have taken greater care for her own safety and failed to do so.
I have weighed up the respective acts of negligence of the parties involved and referred to in [108(m)] and [108(n)] above. I find on the evidence that the Claimant’s contribution to the motor accident significantly outweighed the insured driver’s contribution. Accordingly, I am satisfied that the Insurer has discharged its onus and established that the motor accident was caused mostly by the fault of the Claimant within the meaning of sections 3.11(2) and 3.28(2) of the MAI ACT for the reasons stated above.
COSTS AND DISBURSEMENTS
There is a dispute between the Claimant and the Insurer in respect of the recovery of legal costs under section 8.10 of the MAI Act.
Section 8.10 of the MAI Act relevantly provides:
“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that –
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.”
Section 8.10 of the MAI Act confers a costs power on a Member of the Commission not previously held by CARS assessors under the Motor Accidents Compensation Act 1999 (the MAC Act).
Schedule 1 Part 1, Clause 3(2)(a) - (m) of the Regulation sets the maximum costs recoverable for legal services in various miscellaneous claims assessment matters. Schedule 1 Part 1, Clause 3(1) of the Regulation provides that the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The Claimant sought costs for legal services in excess of those provided for in Schedule 1 Part 1, Clause 3 of the Regulation by relying on the discretionary power conferred on a Member of the Commission to order costs beyond the regulated amount if “exceptional circumstances exist that justify payment of legal costs incurred by the claimant”: section 8.10 (4)(b) of the MAI Act.
The Claimant also made a claim for the following unregulated disbursements:
(a) NSW Police GIPA Act application: $30.00
(b) Collision investigation report by Mr Nigel McDonald: $2,335.89
(c) Counsel’s fees: $4,840.00
The Claimant referred to AAI Limited trading as GIO v Moon[28] (Moon).
[28] AAI Limited trading as GIO v Moon [2020] NSWSC 714.
The Claimant’s submissions in respect of her legal costs were brief and were stated in the following terms:
“The claimant submits that the degree of the legal complexity in the current matter has required legal costs exceeding the maximum costs fixed by the regulations in terms of preparations for the DRS application, documents relied upon in the application and obtaining advice from Counsel.”[29]
[29] Claimant’s Costs Submissions lodged on 9 November 2020 at [3].
The Claimant submitted that if I allowed costs beyond the regulated amount on the basis of exceptional circumstances, that she proposed approaching the Insurer, through her lawyers, to reach an agreement on costs and if no such agreement were reached, then costs would be assessed as necessary.
The Claimant did not provide an itemised tax invoice in support of her claim for her lawyer’s professional costs or even a dollar figure for the amount of such costs. The Claimant did not provide tax invoices in support of her claim for the unregulated disbursements referred to above totalling $7,205.89.
The Insurer disputed that the Claimant is entitled to costs for legal services in excess of those provided for in Schedule 1, Part 1, Clause 3 of the Regulation. Further, the Insurer submitted that the Claimant’s legal representative is limited to the regulated cost at 16 monetary units in connection with legal services provided for the current miscellaneous assessment.
The Insurer submitted as follows:
(a) The subject claim was a straightforward dispute regarding the application of sections 3.11 and 3.28 of the MAI Act.
(b) The matter involved consideration of police material, a factual investigation report obtained by the Insurer and the Claimant completing a questionnaire that was sent to the factual investigator as to her version of events.
(c) The issues to be determined involved a consideration of the facts disclosed in the above-mentioned documents and an application of arguments as to the facts and a consideration of the evidence.
(d) There was no face-to-face assessment hearing required and the matter was to be determined on the papers.
(e) The Claimant’s lawyers prepared two sets of written submissions, both three pages in length.
(f) This form of dispute was clearly in the contemplation of the NSW Parliament when enacting the MAI Act and in determining the relevant maximum costs to be payable.
(g) There was nothing in the subject dispute that could be considered exceptional for the reasons raised in (a)-(f) above. An award of exceptional costs in excess of the maximum regulated fee is not reasonable in the circumstances.
(h) There should be no award for costs with respect to counsel’s fees. It was not necessary for counsel to be involved in this dispute. The maximum prescribed regulated fee is in place to be awarded for legal representatives on behalf of the Claimant. The Claimant had a solicitor involved in the teleconference and the preparation of submissions. The reason for counsel’s involvement is not clear. The maximum prescribed professional fees for the dispute should be awarded for solicitor and/or counsel fees and no additional sum should be awarded.
(i) There should be no award for costs with respect to Mr MacDonald’s expert fees in preparing his collision reconstruction report. The report was not reasonable or appropriate and was not required for the purpose of this dispute.
(j) The Claimant is entitled to the maximum prescribed fee of 16 monetary units pursuant to the Regulations in the sum of $1,660.16.
The leading case addressing section 153(1) of the MAC Act and the “exceptional case” provision was San v Rumble (No 2)[30] (Rumble). Campbell JA, with whom Beazley JA and Ipp JA concurred, relevantly stated at [67]:
“A litigant who seeks to have a court displace, under Section 153(1), the regime that Section 151 creates, bears the onus of proving facts and presenting arguments that persuade the court that it is appropriate to make such an order. In deciding whether it is an ‘exceptional case’ within the meaning of Section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But, to adopt Kelly, the case need not be one that is unique, unprecedented or very rare. The conclusion that the case is exceptional can arise in any of the ways identified by Rares J in Ho. Beyond that, it seems to me, it is not possible for general guidance. As the New Zealand courts have found concerning the discretion that was the subject of Awa, it will be necessary to approach each application by a careful consideration of the facts of the individual case.”
[30] San v Rumble (No 2) [2007] NSWCA 259.
The statement of principle relied on by Rares J in Ho v Professional Services Review Committee No 295[31] (Ho) at [26] was that exceptional circumstances:
“… can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together, are seen as exceptional.”
[31] Ho v Professional Services Review Committee No 295 [2007] FCA 388.
In Moon, Wright J envisaged at [99] that a matter may be exceptional because it involves an unusual degree of factual or legal complexity or for some other reason, requires the Claimant to incur more substantial legal costs.
I have carefully considered the facts of this case and the submissions the Claimant made that sought to persuade me to exercise my discretion to order costs for legal services in excess of those provided for in Schedule 1, Part 1, Clause 3 of the Regulation. I am not satisfied that any of the factors individually raised by the Claimant in her submissions or any combination of them, or when taken together can be seen as exceptional. Further, I am not satisfied that the case included an unusual degree of factual or legal complexity requiring the Claimant to incur more substantial legal costs. Accordingly, I decline to exercise the discretion conferred on me under section 8.10(4)(b) of the MAI Act.
I would not expect the $30 standard fee for the documents produced by the NSW Police Force to the Claimant under the GIPA Act to have been disputed by the Insurer. The documents produced were of assistance in my determination of the matter. The documents provided further useful information than that which was contained in the COPS event report dated 29 January 2020 produced at R4 of the Insurer’s material. I expect the insurer to pay the $30 fee, on production of the GIPA Act receipt to the Insurer.
In respect of Mr McDonald’s expert fees in preparing his collision reconstruction report, I find that the report was not reasonable and necessary. It was not required for the purpose of this dispute. The parties conceded that their respective actions contributed to the motor accident. Therefore, I am of the opinion that Mr McDonald’s evidence was of little assistance, in that, it did not add anything of significance to the evidence already before me. Mr McDonald’s evidence focussed on the Insured Driver’s acts of negligence. My task was to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them. Accordingly, I do not allow the fees claimed for Mr McDonald.
In respect of counsel’s fees, I find that the engagement of counsel was not reasonable and necessary in this dispute. I concur with the Insurer’s submissions in this regard. Accordingly, I do not allow the fees claimed for the Claimant’s counsel.
I note that at the teleconference on 2 November 2020, I directed the parties, amongst other things, to provide any further written submissions, including submissions on the matter of costs to be awarded. The Claimant’s submissions in this regard fell short of what is expected. In my view, if a Claimant requests a Member of the Commission to exercise the discretion conferred under section 8.10(4)(b) of the MAI Act, an itemised tax invoice for the professional fees of their legal representative and copies of tax invoices in respect of disbursements should be attached to submissions as to costs. It is neither cost-effective nor time efficient to come back to the Commission to seek an assessment of costs at some later stage if cost negotiations break down, as was suggested by the Claimant.
The Insurer submitted that the Claimant would only be entitled to one lot of regulated costs at 16 monetary units. I reject this submission.
The Claimant’s application has been unsuccessful. Given the circumstances of the accident and the nature of her injuries, I find that it was not unreasonable for the Claimant to refer this dispute to the DRS (now the Commission) for determination. I have had regard to section 8.10 of the MAI Act and Schedule 1, Part 1, Clause 3 of the Regulation. Section 8.10 (2) of the MAI Act enables the Regulation to specify when costs and expenses are not recoverable. There is nothing in the Regulation that states that claimants are not able to recover costs if they are unsuccessful in Miscellaneous Claims proceedings. Further, Wright J in Moon at [82] determined:
“… There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS. …”
My referral from the DRS, as it then was (now the Commission) referred to two miscellaneous claims assessment matters that required my assessment, namely, whether for the purposes of section 3.11 the motor accident was caused mostly by the fault of the injured person and whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person.
Under Schedule 1, Part 1, Clause 3 of the Regulation, the Claimant is entitled to the costs in each dispute for determination subject to the cap of 60 monetary units.
Accordingly, I am satisfied that the Claimant is entitled to the payment of legal costs at the regulated maximum in each dispute. In accordance with section 8.3(4) and section 8.10(3) of the MAI Act, I permit the Claimant to recover from the Insurer the reasonable and necessary costs associated with the statutory benefits claim as allowed under the Regulation on each of the disputes in this matter as follows:
(a) Dispute under Schedule 1, Part 1, Clause 3(2)(d) of the Regulation:
16 monetary units or $1,660 plus GST.(b) Dispute under Schedule 1, Part 1, Clause 3(2)(e) of the Regulation:
16 monetary units or $1,660 plus GST.Therefore, I allow costs in the total sum of $3,320 plus GST (being $3,652 inclusive of GST).
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of section 3.11 of the MAI Act, the motor accident was caused mostly by the fault of the Claimant.
(b) For the purposes of section 3.28 of the MAI Act, the motor accident was caused mostly by the fault of the Claimant.
(c) Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Regulation is $3,652 inclusive of GST.
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