ABB v AAI t/as AAMI
[2021] NSWPIC 145
•27 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABB v AAI t/as AAMI [2021] NSWPIC 145 |
| APPLICANT: | ABB |
| RESPONDENT: | AAI t/as AAMI |
| MEMBER: | David Ford |
| DATE OF DECISION: | 27 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; riding his bicycle on the footpath; bicycle charges close to the road and into oncoming traffic; statement of Police Officer; roundabout; claimant did provide several version of the circumstances; Held- do not accept that the Claimant was sitting on his bicycle stationary; prefer the statements of the insured driver; insured driver negligent; not kept a proper lookout; claimant was not wholly at fault; likely that the claimant was negligent to the extent of 50%. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 5 May 2021. 4. Legal Costs: The amount of the Claimant’s cost assessed in accordance with Motor Accidents Injuries Regulation 2017 is $1,826.00 incl GST. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
Issued in accordance with section 7.36(4) 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) and (e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.11(1)(a) (cessation of weekly payments to injured persons most at fault after 26 weeks) and section 3.28 (1)(a) cessation of statutory benefits after 26 weeks to injured adult persons most at fault) the motor vehicle accident was caused mostly by the fault of the injured person.
This is a dispute between ABB, Claimant, and the Insurer with respect to payment of statutory benefits, pursuant to 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (The Act).
The Insurer undertook an internal review, and a Statement of Reasons is attached to this application form and dated 25 February 2020.
ABB seeks to challenge that determination.
On 21 July 2019, at approximately 7.45am, the Claimant was riding his bicycle and was involved in a motor vehicle accident with the Insured vehicle. The collision took place at the roundabout at the intersection of Gladstone Street and John Street, Cabramatta.
As a result of the collision, the Claimant sustained injuries and was taken from the scene by ambulance, to Liverpool District Hospital where he was admitted.
There were several teleconferences held by the previous DRS Claims Assessor, Andrea Boyd Boland (11 in total) prior to the claim being referred to me.
I conducted the first assessment conference on 22 February 2021 however, due to technical difficulties, the Solicitor for the Claimant was unable to join the video conference. Furthermore, the Solicitor for the Insurer was also unable to join the video conference. In such circumstances, it was necessary to postpone the assessment conference until 7 April 2021. The assessment conference proceeded on that day and concluded at 12.10 pm.
DOCUMENTS CONSIDERED
I have considered the documents provided in the Application and the Reply; and in addition, I received photographs of the Claimant’s bicycle.
INSURER SUBMISSIONS
The Insured driver refused to attend the video conference on 7 April 2021. I refer to the further submissions served by the Solicitor for the Insurer dated 16 February 2021. I note the submission in paragraph 1.3.
“AAMI has taken reasonable steps to secure the attendance if the Insured driver at the hearing. The Insured driver has declined to attend and has indicated to the writer that the reason for her declinature is that she is concerned there may be repercussions for her safety and that of her family if she gives evidence that is adverse to the Claimant’s interests.”
10. I am not empowered to direct any person who is not a party to the proceedings to attend the video conference and be subject to questioning. It was further submitted the Insured driver’s concerns regarding the possible repercussions of giving evidence adverse to the Claimant’s interest should be construed in the circumstance as a reasonable excuse to decline attendance at the hearing.
11. Despite the fact the Insured driver was not available for questioning, I decided the video conference should proceed, in view of the history of this matter regarding the various delays in having the matter set down for an assessment conference and in the circumstances, I considered the Insurer should be permitted to rely upon the various statements of the Insured driver and the accident report form. I was also of the view that if the parties had not wished to have the matter determined at a video conference, then I would have been content to decide this Miscellaneous Claims Assessment on the papers.
12. I refer to the internal review of the insurer dated 25 February 2020. In the Accident Report Form completed by the Insured driver on 8 August 2019 the insured driver reported the following:
“on 21 July 2019, at 7:45am I was driving along John street, turning left at a roundabout in Cabramatta. I was turning left at the roundabout on John Street to turn left on Gladstone street. All of a sudden, a man riding a bicycle appears from the footpath. As he was not looking for incoming cars, I assumed he was staying on the footpath to turn around the corner and not passing the road. As soon as I saw the bicycle charge close to the road and into oncoming traffic, I slammed my brake (sic) and by this time it was too late. The bicycle hit into the vehicles front bumper, he lost control of the bike and fell off onto the ground. I got out of my vehicle and called 000 immediately”.
13. The Insured driver then provided an accident scene diagram which is depicted on page 5 of the internal review.
14. The internal review also records the statement the Police Offer who attended the scene of the accident, Senior Constable Alvene Chandra obtained from the insured driver on 17 September 2019. The following paragraphs are quoted in the internal review:
“Lim took the following version from the driver, JN, I was travelling from John Street and turning left into Glastone Street. The bike was on the footpath on my left. All of a sudden, he was riding on the road fast.
Q. When you first saw him where was he?
A. I did not see him on John Street until he was on the road. He was travelling so fast and I couldn’t brake in time.
Q. Did you see him travelling from the footpath onto the road?
A. No.
Q. How fast were you travelling?
A. I was travelling about 15km per hour while making the turn.
Q. Was anyone in your vehicle?
A. No
Q. Are you on any medication?
A. No.
Q. Have you driven on this road before?
A. Yes.
Q. Can you see clearly when driving?
A. Yes.
Q. What were you doing before the accident?
A. Just driving.
Q. Were you distracted with anything?
A. No.
Q. Do you suffer any injuries?
A. No.
Q. Did you consume alcohol?
A. No.”
The Insurer also relies upon the report of M & A Investigations dated 20 November 2019 and I refer to the statement of the Insured driver annexed to that report, dated 19 November 2019, and in particular I note the diagram of the accident scene driven by the Insured driver. I also note the various colour photographs of the accident scene and the Insured drivers motor vehicle which are also attached to the said report. in particular, I note photograph 4.
I note the following paragraphs from the Insured driver’s statement dated 19 November 2019:
“25, I was driving in a general easterly direction on John Street with the intention of turning left into Gladstone Street. This intersection is controlled by a roundabout.
26, There were no cars in front of me, but I always stop at this roundabout to check for cars.
27, I was stopped and saw that it was clear for me to turn. I had my left blinker. I turned the corner and all I saw was some movement in front of me. I did not note, at first, what this movement was but it caused me to slam on my breaks. My car came to an immediate stop as my car was driving that slow.
28, As I stopped, I saw the cyclist in motion and falling to the roadway. I got straight out of my car. He landed on the road near to the front right-hand corner of my vehicle. I saw he was wearing a helmet. He was only a couple feet from my car. He was lying down but he got himself in a seated position. There was a car coming on Gladstone Street, and that driver stopped.
39, I have read the version of what that cyclist has said in his claim form. It is not correct. He definitely was not stationary as I saw on the footpath on my left and movement across my car. He landed on the right side of my care (sic) and my car was damaged on the left-hand side. He was not stationary on the island in the middle of the road. I did not lose control. I was driving 10 km per hour or less.”
I also note the diagram of the accident as depicted on page 6 of the internal review.
CLAIMANT’S SUBMISSIONS
It is suffice to say the Claimant did provide several versions of the circumstances surrounding the subject accident however, in summary the Claimant states that immediately before being struck by the Insured motor vehicle he was positioned in the middle of the road on the medium strip on Gladstone Street and had been in that position, as stated in his statement dated 4 March 2020 for a period of thirty seconds whereas, in the GIPA records at page 37, he stated he had been stationary for at least “roughly about 2 minutes”.
I note at the assessment conference, the Claimant stated that he had not previously been shown the various colour photographs attached to the report of M & A Investigations dated 20 November 2019. I requested the Claimant be shown photograph number 4, and thereafter a number of questions were directed to the Claimant regarding this photograph. The Claimant was asked to mark on the photograph where he was standing shortly prior to impact and once again, the Claimant stated he had been standing there for about thirty seconds. He stated he was sitting on his bike and was standing at a point of two metres to the left of the concrete barrier or “island” as it has been described in various statements. He stated he was stationary at the concrete barrier as he was waiting for two cars to pass by him coming from his left.
in the first submissions served on behalf of the Claimant (document A13) in paragraph 10, I note the following:
“Further, having regard to the Police Statement a version recorded in the accident report form that JN ‘assumed he was staying on the footpath to turn around the corner and not passing the road’. JN confirms that she saw the Claimant prior to the accident and did not take precaution before proceeding to make the left-hand turn. The version provided by JN is inconsistent with the version provided by the Claimant. Accordingly, JN breached her duty of care to the Claimant on the following bases:
a)Failure to keep a proper lookout.
b)Failure to take evasive action to avoid an accident.
c)Failure to take heed of the presence of the Claimant on the roadway.
d)Failure to ensure the roadway was clear before making a turn.
e)Failure to keep motor vehicle under proper control.
f)Losing control of motor vehicle.
g)Travelling at an excessive speed in the circumstances.
h)Proceeding to make a turn when it was unsafe to do so.
20. Furthermore, it is submitted on behalf of the Claimant the Insured driver ought to have regard to the presence of the Claimant on the roadway and exercise care to avoid a collision and in such circumstances, it is submitted there was no contributory negligence on part of the Claimant.
21. I further note the Claimants further submissions prepared by his Counsel dated 20 January 2021, and I note the submission regarding an exceptional cost order.
LEGISLATION
- In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (“the Act”).
·Motor Accident Injuries Regulation 2017.
·Motor Accident Guidelines 2020.
·Civil Liability Act 2020 (NSW).
REASONS
Was ABB wholly at fault in causing his accident?
- I do not accept the Claimant was sitting on his bicycle stationary, two metres left of the concrete barrier at the roundabout when he was struck by the motor vehicle being driven by the Insured driver. I prefer the statements by the insured driver, and I also accept the diagrams drawn by the insured driver which depict the point of collision on the roadway and in this regard, I again refer to the diagrams on page 5 and page 6 of the internal review. I also not the photograph at paragraph 2.11 of the internal review evidencing the damage to the insured driver’s vehicle, which clearly depicts damage to the left front bumper area of the vehicle.
- However, I also find the insured driver in her statement to the police confirms she saw the Claimant prior to the accident, when he was riding his bicycle on the footpath and it would have been apparent to her that the Claimant was intending to proceed across the intersection. I also find she was travelling at a relatively slow speed, which she has considered to be at 10 kph.
- When making such a left hand turn, as happened in this case, the insured driver attempting this manoeuvre should be keeping a proper lookout which includes not only looking into oncoming traffic but also having regard to the fact there was a cyclist on the footpath, which for all intents and purposes, clearly appeared to be proceeding to cross the intersection ahead of her.
- In such circumstances, the insured driver should have brought her vehicle to a halt or at least sounded her horn to alert the Claimant to her presence on the roadway. Since she was only travelling at 10 kph, there was ample opportunity for her to bring her vehicle to a complete halt in order to allow the Claimant to cross the intersection in safety.
- I therefore find the Insured driver negligent in the driving of her vehicle as she had not kept a proper lookout and also attempted to make a left-hand turn into Gladstone Street when it was unsafe to do so.
- I therefore find the Claimant was not wholly at fault in causing the accident.
Was the motor accident caused mostly by the fault of the Claimant?
- The onus of proving contributory negligence rests upon the Insurer.
- In deciding whether the Claimant was guilty of contributory negligence, I must have regard to the standard of care set out in section 5 R of the Civil Liability Act (NSW) 2002.
As stated above, I find the Insured driver was not keeping a proper lookout before attempting to make a left hand turn into Gladstone street and had she had done so, she would have seen the claimant approaching on his bicycle and allow him to pass safely I further find the Claimant was not keeping a proper lookout in the circumstances and should have seen the insured driver approaching in her vehicle from his right and since she was travelling at the slow speed of 10 kph, he should have assumed she intended to make a left hand turn into Gladstone street across his path.
- I note with regard to contributory negligence the Insured has submitted 70%. However, having regard to the fact, in my view, the Claimant was not keeping a proper lookout I find he is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%.
- I note in the submissions the parties have not requested I make an assessment of contributory negligence and I will therefore refrain from determining the precise degree of contributory negligence of the Claimant however, I find that it is more likely that the Claimant was negligent to the extent of 50%.
FINDINGS
- I therefore find the accident of 21 July 2019 was not caused wholly by the fault of the Claimant.
- I also find the accident of the 21 July 2019 was not caused mostly by the fault of the Claimant.
COSTS AND DISBURSEMENTS
The Solicitor for the Insured has lodged submissions dated 8 February 2020, submitting the Claimant is not intitled to claim that exceptional circumstances apply to permit the payment of additional expenses incurred in preparing the claim for hearing in excess of the regulated fee. In reliance upon their submission the Insurer states the vast majority for the delay in this matter being listed for hearing was occasioned by the Claimant’s insistence that they require an expert report and it was not until the final teleconference that the solicitor for the Claimant advised they would not be obtaining an expert report.
I note at the assessment conference the Claimant stated he had not previously been show the photographs annexed to the report of M & A Investigations dated 20 November 2019. I would of thought if the Solicitor for the Claimant was contemplating engaging an expert to provide a report in relation to the circumstances of this accident, there would have been a conference with the Claimant at an early stage where he could be shown the said photographs which would provide further information as to whether or not an expert should be engaged on his behalf. Since this was not undertaken, I am not prepared to allow costs on the basis that exceptional circumstances exist, and I award the Claimant his costs which I assessed at the maximum regulated fee.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
- For the purposes of section 3.11 and 3.28 the motor accident was caused by the fault of another person.
- For the purposes of section 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.
- Effective Date: This determination takes effect on 6 May 2021.
- Legal Costs: $1,826.00 incl GST.
David R Ford
DRS Claims Assessor
Dispute Resolution Services
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