ABC v CIC-Allianz Ltd
[2021] NSWPIC 147
•27 May 2021
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: ABC v CIC-Allianz Ltd [2021] NSWPIC 147 APPLICANT: ABC RESPONDENT: CIC- Allianz Ltd MEMBER: Bridie Nolan 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, 3.28 and 3.38 of the Motor Accident Injuries Act 2017; bus struck vehicle; CCTV footage; right hand/U turn; failed to keep a proper lookout; bus continuing at normal speed without slowing down; driving at 30km an hour; claimant failed to give way to oncoming traffic; empty bus; ample time for the insured driver to apply the brakes; disproportionate damage capable of being occasioned; Held- the failure of the insured driver to slow down at all is the substantial cause of the accident; insured driver 65% culpability; legal costs.
DETERMINATIONS MADE: 1. For the purposes of section 3.11 the motor accident was caused by the fault of another person.
2. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person.
3. For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by 35%.
4. Effective Date: This determination takes effect on 14 October 2019.
5. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $5,478 inclusive of GST.
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a dispute engaging miscellaneous claims assessment matters provided for in Schedule 2, clauses 3 (d), (e) and (g) of the Motor Accident Injuries Act 2017
1.On 3 March 2020, the insurer determined the outcome of an internal review, namely that the claimant was mostly at fault for a motor vehicle accident in that the claimant was 67% contributorily negligent.
2.In support of this determination, the insurer considered the evidence of the claimant in the application for personal injury benefits dated 5 February 2019, where she described the mechanism of the accident as follows:
“As I was indicating to take off from Riley Street, Liverpool, I checked behind me, was no vehicles, suddenly a bus struck my vehicle in driver’s side rear guard & tyre.”
3.The insurer considered the following:
(a) The incident and accident report completed by the insured driver on 13 June 2019, which noted that: “a car suddenly moved from road shoulder to the single lane and cut off my bus front when I was driving… It happened too quickly that I could not avoid and hit the right rear side of the car although I have done my best to step down the break.”
(b) The police report dated 25 September 2019, which I do not consider presently relevant.
(c) The application for internal review dated 12 February 2020, submitted by the claimant's legal representatives and noted the submissions that “the most important observation from the CCTV footage is the fact that at 16:52:35, the claimant commences making the right hand/U-turn. She is at two car lengths behind the vehicle which is travelling in front of her vehicle and at least four car lengths from the vehicle which is seen heading towards the bus. The claimant's vehicle is thus at least six car lengths and was in the bus driver’s line of vision attempting to make the U-turn. The CCTV footage confirms that the bus driver kept driving, and there was no attempt to break until the collision occurred.”
4.Based on this information, the insurer determined that the claimant acted negligently or contributed to the accident by:
(a) Moving into the path of the insured vehicle;
(b) Failing to keep a proper lookout;
(c) Driving without due care and attention;
(d) Failing to give way to another vehicle; and
(e) Performing a U-turn when unsafe to do so.
5.It had regard to the following road rules in Road Rules 2014 (NSW):
(a) Rule 87, whereby a driver entering a marked lane or a line of traffic from the far left or right side of a road, must give way to any vehicle travelling in the lane or line of traffic.
(b) Rule 37, whereby a driver must not begin a U-turn unless the driver had a clear view of any approaching traffic, and the driver can safely make the U-turn without unreasonably obstructing the free movement of traffic.
(c) Rule 38, whereby a driver making a U-turn must give way to all vehicles and pedestrians.
(d) Rule 49, whereby a driver of a vehicle must give a right change of direction signal by operating the vehicle's right direction indicator light.
6.It accepted that the insured driver failed to keep a proper lookout for the vehicle and failed to keep a sufficiently safe distance behind the vehicle or take evasive manoeuvres, noting that conditions were fine, and the insured driver could clearly see the vehicle completing a U-turn. There was no evidence that the presence was obscured by another vehicle or object.
7.It was on that basis it concluded that the insured driver ought properly to have been able to stop safely and avoid the collision had he kept a proper lookout and reduced his speed upon seeing the vehicle complete a U-turn.
8.However, it had regard to the decision of Cassar v GIO (NSW) (1990) 12 MVR 447 (Cassar), where the claimant performed a U-turn in front of the defendant approaching from an opposite direction. The defendant collided with the rear of the plaintiff. In that case the Court assessed the claimant's negligence at 67% noting the defendant was travelling at speed.
9.It said, relevantly, as follows:
“I have affirmed [sic] the case of Cassar v GIO (NSW) (1990) 12 MVR 447 on the basis that you had performed a U-turn in front of the defendant [scil. insured driver] and that an ordinary person ought to have kept a proper lookout for oncoming traffic before performing a U-turn. I also note that the defendant [scil. insured driver] similarly, did not slow down upon seeing your vehicle and continued to drive at the same speed.”
10.It was on this basis that contributory negligence was assessed at 67%.
Documents considered
11.I have considered the documents provided in the application and the reply, and any further information provided by the parties.
Submissions
12.In submissions dated 26 May 2020, the claimant has accepted that she should be held to be 33% liable for the accident.
13.She relies on the CCTV footage, which I refer to below. She submits that it shows the bus continuing at normal speed without slowing down while making invisible U-turn manoeuvre. She notes that when she commences making the right-hand U-turn, she is at two car lengths behind the vehicle, which is travelling in front of her vehicle at least four car lengths from the vehicle that is seen heading towards the bus. She submits that her vehicle was at least six car lengths in the bus driver's line of vision attempting to make the U-turn.
14.As to the regulations 37, 38, 49 and 87 of the Road Rules relied on by the internal reviewer, the claimant says relevantly as follows:
(a) Regulation 38 requires a driver making a U-turn to give way to all vehicles and pedestrians. The note to this regulation states, "for this rule, give way means the driver must slow down and, if necessary, stop, to avoid a collision". She says that in the present case, she cannot be found to be at fault for not giving way to the insured bus driver as he was a considerable distance from her and that it was open to her to reasonably conclude that she could make the U-turn without any difficulties.
(b) Regulation 49, reliance upon regulation is misplaced as the claimant put her right indicator lights on before commencing a U-turn.
(c) Regulation 87, the complaint is made that the reviewer does not have proper regard to the entirety of those provisions. The same is said with respect to regulation 87(3).
15.The claimant relies on the concession at paragraph 13 of the insurer's decision that the insured driver failed to keep a proper lookout and failed to keep a sufficiently safe distance behind the vehicle to take evasive measures noting that the conditions were fine and the insured driver could clearly see the vehicle completing a U-turn. There was no evidence that the claimant's vehicle was obscured from view by any other object or another vehicle.
16.The claimant submits that the reliance upon the decision in Cassar is misplaced. Instead, she relies on the decision of Murray v Collova [2001] WADC 54, where the trial judge found that the plaintiff travelling at a speed of 110 km an hour who ignored a reduced speed sign, a road works in progress sign, and a 50 km/hr sign before colliding with the defendant's truck was nonetheless assessed to be only 60% contributorily negligent. In the present case, she submits that the facts are more favourable to her and that a comparable finding of 67% is not warranted given these facts.
17.She submits that if I do not find that she was only 33% contributorily negligent, the appropriate finding would be in the alternative 50%.
18.In its submissions to me dated 25 June 2020, the insurer largely repeats the bases upon which the internal review was determined.
19.The parties provided me with further submissions based on a factual investigation report to which I have had regard.
20.In the submissions dated 14 August 2020, the claimant notes that the insured driver refused to provide a statement to the investigator when he was contacted on 31 July 2020. It is on this basis that the claimant urges me to carefully analyse the incident report, which was prepared by the insured driver immediately after the accident, presumably after his observation of the CCTV footage. She draws my attention to the fact that the insured driver says that he was driving at 30 km an hour. This means she says that the bus was travelling at 8.33 m/s. She submits that in the five-second intervals when the claimant is seen commencing a U-turn, the bus travelled 41.65 m. It is on this basis that she submits that the insured driver had sufficient time to react to the situation and applies brakes or at least slow down, which does not appear to be the case. She submits that the contributory negligence of the claimant should be 50%, with the respondent also being liable for not keeping a proper lookout and either slowing down or coming to a complete stop to prevent the accident.
21.I have had regard to the insurer's further submissions dated 17 August 2020. They do not differ from the propositions advanced in earlier submissions, save to say that both parties agree that this matter is not appropriate for an oral hearing.
22.I note that at the last preliminary teleconference, I had said that I would consider whether an all hearing was required. I do not consider an oral hearing is required.
I apologise to the parties for the lateness in providing this submission. Due to a change in my personal assistant circumstances at the end of 2020, the follow up of this matter escaped my attention. It is only upon completing an audit of my matters that
I recognised that this matter had a decision outstanding.
Reasons
Legislation
23.In making my decision, I have considered the following legislation and guidelines:
· The Act
· Motor Accident Injuries Regulation 2017 (NSW)
· Civil Liability Act 2002 (NSW)
· Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Legislative framework
24.Part 3 of the Act deals with statutory benefits. The entitlement to statutory benefits is provided for in section 3.1(1) of the Act. It provides for a scheme wherein if the injury to a person results from a motor accident in the State, statutory benefits are payable in respect of the injury as provided for by Part 3. Statutory benefits are payable except as otherwise provided by the Part whether the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle or even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
25.For the first 26 weeks following an accident, statutory benefits for treatment and care expenses are payable without regard to the fault of any person involved in the accident: see section 3.24 of the Act. This is consistent with the legislative intent of the Act, expressly provided for in the Act’s Objects provision, section 1.3(2)(a), to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.
26.Section 3.28(1) of the Act introduces a statutory prohibition on the continuing payment of weekly statutory benefits to injured persons where the motor accident was caused “wholly or mostly by the fault of the person”. Subsection (2) provides 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 (as referred to in section 3.38 of the Act) was greater than 61%. In furtherance of the plain legislative intention, subsection 3.28 (3) provides that despite the proviso in subsection (1), statutory benefits under this Division incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
27.The parties are in dispute as to the claimant’s ongoing entitlement to statutory benefits for treatment and care following the insurer’s determination on an internal review that the claimant was mostly at fault by virtue of a finding that she was 67% contributorily negligent for the accident. This dispute is, therefore, a miscellaneous claims matter as defined by Schedule 2 (3) (d), (e) and (g). This dispute, as defined in section 7.40 of the Act, has been referred to the Dispute Resolution Service by the claimant and allocated to me to determine under section 7.42, as read together with section 7.36, of the Act.
28.The relevant inquiry posed by the expression “fault” is one of legal causation or responsibility for the harm caused. A question arises as to what legal prism is that responsibility to be assessed.
29.Except for the express inclusion of section 5R, to which I will come, the Civil Liability Act 2002 (NSW) would not appear to apply to the assessment of causation, per se. This is because a claim for statutory benefits is not “a claim for damages for harm resulting from negligence” to which Part 1A of the CLA, in which section 5D is housed, applies: as section 3.1 of the Act makes plain, and statutory benefits are payable in respect of an injury regardless of fault until 26 weeks. These payments must continue beyond the 26-week period unless the person to whom they are to be paid was wholly or mostly at fault.
30.As section 3.28(2) provides, a motor accident is caused mostly by the fault of a person if their contributory negligence in relation to the motor accident (as referred to in section 3.38 of the Act) was greater than 61%.
31.Section 3.38 (1) of the Act provides:
“(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident. (my emphasis)”
32.It does not expressly apply to statutory benefits for treatment expenses.
33.While s 3.38(1) of the Act introduces the operation and effect of the common law on contributory negligence, and enacted law, being both section 5R of the CLA and section 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), to the determination of loss of earnings, it is not directed to the determination of statutory benefits for treatment or expense. Therefore, caution should be applied to the application of cases decided pursuant to these statutory schemes. The same issue arises with respect to section 3.38(3)(c), which pertains to the reduction of weekly payments. It is not expressly clear how the reference contributory negligence “as referred to in section 3.38” of the Act is intended to apply: see s 3.28(2).
34.At common law and under the CLA, contributory negligence is a defence, under the Act, in this statutory context, it is, by virtue of the operation of s 3.28 of the Act, a proviso or qualification on ongoing payment of statutory benefits, to be objectively determined. In Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, the High Court provided that where a statute provides “an … exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter …”. As it is the insurer who wishes to rely upon the existence of the condition of exclusion under section 3.28(1)(a) of the Act, this authority would appear to render, incumbent upon it, the legal burden of persuading or proving that proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257. Cross on Evidence describes the legal burden as “the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) by a preponderance of the evidence”: JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [7010].
35.In my view, the condition of disentitlement, viz. whether the injured person was “mostly at fault”, in the statutory context of s 3.28 and whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38, requires a consideration of the attribution of responsibility or causation of the harm to determine whether it exceeds the statutory threshold of 61%. It, therefore, requires me to consider whether the claimant failed to take reasonable care for her safety and to what extent that failure contributed to the harm she suffered. The standard of care required of the claimant in this instance is that of a reasonable person in her position, to be determined based on what she knew or ought to have known at the time — a purely objective “reasonable person” test. The extent to which the fault is to be determined would appear to be, by virtue of the parenthetical inclusion of section 3.38 of the Act to my determination, such percentage I determine is just and equitable in the circumstances of the case. That is, in accordance with the mandate contained in section 3.38(3)(c) of the Act.
36.The clear intent of the provision is that a blameworthy claimant should not be able to avoid responsibility for the consequences to which he or she has carelessly contributed. Rather, when considering the question of apportionment of responsibility, I am to consider the entire conduct of both parties in relation to the circumstances of the accident and make a comparison between their respective departures from their obligations. Any apportionment of fault must be “just and equitable”, and this is determined by having regard to the relative blameworthiness of the parties and the causal potency of their acts: see e.g. Stapley v Gypsum Mines Ltd [1953] AC 663 (HL), 682; Podredersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 494.
37.The relevant question posed by Schedule 2(3)(e) of the Act is whether, for the purposes of section 3.28 of the Act, the motor accident was caused mostly by the fault of the injured person. “Mostly at fault” requires me to determine whether the claimant's responsibility for the occurrence of the harm was more than 61%. In this case, given the insurer’s concession as to fault, that requires the task of apportionment based on what I consider just and equitable in the circumstances. I am required to carry out a comparative analysis of the culpability of both the claimant and the insured driver: see Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492 (Podrebersek). This involves an analysis of the degree of departure from the standard of care by a reasonable person: Pennington v Norris (1956) 96 CLR 10 at [16] and in addition, an analysis of the relative importance of the acts of the parties causing the damage: Stapley v Gypsum Mines Limited (1953) AC 663 at [682]. It is an ostensibly impressionistic and qualitative assessment of the causal potency: a finding of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinions by different minds: Podrebersek at 494.
38.I have had regard to the CCTV footage, which I have viewed multiple times.
39.I am reasonably satisfied that the claimant failed to give way to oncoming traffic. There was no evidence before me that the insured vehicle did not have its headlights illuminated. Had she been keeping a proper lookout, the claimant would have given way to the bus, which indeed she appeared to be doing in the road shoulder as the bus approaches. A reasonable person in the position of the claimant, turning across oncoming traffic, would have had a tangible interest in taking precautions not to collide with another vehicle. The onus was on her to execute the manoeuvre with safety and having regard for the presence of other vehicles on the road.
40.As observed by Basten JA in Gordon v Truong [2014] NSWCA 97; (2016) 66 MVR 241 at [15], the precautions reasonably required of a party to a motor accident may be different in kind where the drivers were in control of different vehicles. A small motor vehicle such as that the claimant was driving faces a greater risk of harm relative to the driver of a bus or truck. It is this harm against which the contributory negligence of the claimant is to be assessed. The claimant’s disregard for her safety in executing a manoeuvre that failed to take appropriate precautions as to the approach of an oncoming bus and the contribution of that manoeuvre in causing the accident justifies a reduction in the liability of the insured driver.
41.Nonetheless, the claimant is seen on the CCTV footage emerging from her driveway five seconds into the video clip. At this point, it would have been appropriate, given the circumstances and conditions of the road (single lane carriageway on a suburban street at dusk), for the insured driver to have applied the brakes, as a car was quite plainly pulling out in front of the direction in which the empty bus was travelling.
42.The insured driver’s account, recorded in the incident and accident report dated 13 June 2019 completed at 16:52, which is the time of the accident, was relevant:
"A car suddenly moved from road shoulder to single lane and cut-off my bus front when I was driving. It happened too quickly, and I could not avoid and hit the right rear side of the car although I have done my best to step down the brake".
43.It is plain to me, based on the CCTV footage, that there was ample time for the insured driver to apply the brakes; if not, stop the bus. The bus was empty. It was returning to the depot. Were the insured driver to have applied the brakes in a timely way, the accident may well have been avoided. I agree with the claimant’s submissions that the insured driver’s unchallenged evidence was that he was driving at 30 kph. This means she says that the bus was travelling at 8.33 m/s. In the 3 second interval when the claimant is plainly seen commencing a U-turn to when she is just emerging from the road shoulder into the carriageway, the bus travelled nearly 25 m. At that speed, based on what I consider, having watched the footage, to be an appropriate reaction time, on the 0% grade, when the road is dry, a stopping distance would be about 25 m. If the insured driver had slowed down, I am satisfied the accident could have been avoided. In Warth v Lafsky [2014] NSWCA 94; Aust Torts Reports 82–166 at [56], McColl JA observed that notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416, 418 (Mahoney P); Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 at [16] - [17] (Emmett JA, Ward and Gleeson JJA agreeing). The discrepancy which exists between a motor vehicle and a pedestrian is not dislike the discrepancy between the insured vehicle in this instance, namely a bus, and the small vehicle driven by the claimant. The possibility of disproportionate damage capable of being occasioned by a collision between the two was manifest. The knowledge a reasonable person would have of the possibility that in suburban areas, drivers do emerge from driveways and they may do so without warning, in my view, required the insured driver cognisant of the possibility that while driving in suburban areas at dusk, he needed to be vigilant for cars emerging on to the roadway. This was an element of his duty to keep a proper lookout, in the circumstances.
44.Having regard to all the evidence, I am satisfied that the failure of the insured driver to slow down at all, is the substantial cause of the accident. Had the bus driver slowed down, it is apparent from the CCTV footage that the claimant could have cleared the road shoulder and emerged onto the roadway avoiding the collision. For this reason, I find that the insurer has not satisfactorily demonstrated that it is the claimant who is mostly at fault.
45.I would designate to the insured driver an apportionment of 65% culpability for the accident, as I consider such to be just and equitable in the case.
46.Accordingly, I am satisfied that the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Act by 35%.
Costs and disbursements
47.I am satisfied that the Claimant is entitled to the payment of legal costs for three miscellaneous claims assessment matters. I allow costs in the sum of $5,478 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
48.For the purposes of section 3.11 the motor accident was caused by the fault of another person.
49.For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person.
50.For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by 35%.
51.Effective Date: This determination takes effect on 14 October 2019.
52.Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $5,478 inclusive of GST.
53.A brief statement of my reasons for this determination are attached to this certificate.
B. K. Nolan
Member (Motor Accidents Division)
Personal Injury Commission
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