ABF v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABF v Allianz Australia Insurance Limited [2021] NSWPIC 165
APPLICANT:	ABF
RESPONDENT:	Allianz Australia Insurance Limited
MEMBER:	Bridie Nolan
DATE OF DECISION:	31 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Miscellaneous claims assessment; whether the insurer is entitled to reduce the statutory benefits payable under section 3.38 of the Motor Accident Injuries Act 2017; insurer found 50% contributory negligence; consumed alcohol during the day; pedestrians crossing road; car travelling north approached and stopped; car travelling south struck the claimant and her companion; insured driver was blinded by the other vehicles lights; dark night; they chose the most appropriate and safest place to cross; claimant’s alcohol levels were low; just and equitable apportionment; Held- not satisfied that the conduct of the claimant was such as to fail to take reasonable care for her own safety; dimly lit regional centre street; insured driver failed to take appropriate evasive action; insurer is not entitled to reduce statutory benefits payable.
DETERMINATIONS MADE:	1. The Insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Act. 2. Effective Date: This determination takes effect on 30 September 2019. 3. Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 (the Act)

This determination relates to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act: Schedule 2, clause (3)(g) of the Act.

BACKGROUND

The claimant is a resident of Wodonga, Victoria. She was involved in a motor vehicle accident on 9 June 2019 in Albury, New South Wales.
By Application dated 11 March 2020 the claimant, who at that stage represented herself, sought an internal review of a decision of the insurer dated 30 September 2019, wherein the insurer found her 50% contributorily negligent for the accident in which she sustained injuries. The basis for her application was that she did not believe that she was negligent and that the insurer had served no evidence with its decision upon which it could assess her contributory negligence of 50%. By her solicitor, she has made an application for a miscellaneous claims assessment in respect of an internal review decision dated 31 March 2020, made by the insurer, affirming its original decision dated 30 September 2019, that the claimant was 50% contributorily negligent in the motor vehicle accident.
The dispute has been referred pursuant to ss 7.32 and 7.42 of the the Act for determination by me as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act. Pursuant to s 3.44 and s 7.42(3), any such determination is only binding on the parties in connection with a claim for statutory benefits.
Section 71 of the Constitution provides for the judicial power of the Commonwealth to be vested in the High Court and such other federal courts as the Parliament creates or such courts as it invests with federal jurisdiction. Pursuant to s 75(iv) of the Constitution, the High Court has original jurisdiction in all matters "between States, or between residents of different States, or between a State and a resident of another State". The insurer is a corporation and is not considered a resident of a state within the meaning of s 75(iv) of the Constitution: Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290. Therefore, I am satisfied I have jurisdiction to determine the dispute.
On the day of the accident, the claimant had attended the Rutherglen Winery Walkabout. In the evening, she attended the Albury SS&A Club situated in Olive St, Central Albury. She had consumed alcohol during the day.
At about 7.15 pm, she and a companion, SK, also a claimant before me in a related matter (APP-10279729), decided to walk to the Star Hotel to join some friends. The Star Hotel is situated in Guinea Street, Albury, adjacent to the intersection of Guinea Street and Olive Street.
At a point about halfway between Guinea and Wilson Streets, the claimant and her companion SK proceeded to cross Olive Street. At that time, there were no cars travelling in Olive Street between Wilson and Guinea Streets.
As they proceeded to cross Olive Street, a car travelling north along Olive St entered Olive Street and approached the claimant and SK.
Both the claimant, SK, and this oncoming car stopped. The claimant indicated to the driver of the car that he/she should drive on, but the car remained stationary, and the driver indicated to the claimant and SK that it was giving way to them to complete crossing the road.
The claimant and SK were struck by the insured driver travelling south in Olive Street.
In reasons accompanying the Certificate of Determination of internal review the internal reviewer noted that she had relied upon excerpts of the application for personal injury benefits dated 4 July 2019, a statement of SK dated 4 July 2019, a diagram attached to SK's statement and the claimant's statement dated 12 July 2019, which included a diagram. Similarly, the internal review relied upon an interview dated 19 July 2019 between Brooksight Investigations and Adrian Sullivan, Senior Constable at Albury Police Station, together with the police report dated 17 September 2019. The internal reviewer also had regard to the accident location on Google Maps and included the relevant images. She made the following findings:
(a)    The claimant started to cross Olive St, was halfway across when another vehicle on the claimant's side of the road stopped for her and her companion (SK, the claimant in a related claim before me) to keep crossing.
(b)    As a result of this, the insured driver was blinded by the other vehicles lights and only saw the claimant at the very last second
(c)    He attempted to swerve to avoid the claimant; however, it was too late, and he hit the claimant.
(d)    It was estimated that only one and a half seconds before impact, the insured driver would have been able to see the claimant.
(e)    The presence of a pedestrian crossing on Olive Street at the roundabout where the claimant crossed from Wilson St was considered. The insurer found that the claimant would have had to have passed this crossing to cross the road where the accident occurred. The internal reviewer opined that a reasonable person would have crossed at this pedestrian crossing instead of 100 metres down the road where there was no allocated pedestrian crossing. As a result of crossing further down Olive St, the claimant had put herself in danger.
(f)    The claimant failed to keep a proper lookout when crossing the road as the claimant did not see the insured's vehicle prior to impact. The internal reviewer was satisfied that the claimant was not aware of her surroundings while crossing the road because of alcohol consumption.
(g)    The claimant had consumed sufficient alcohol to cause impairment of the claimant's faculties and ability to heed the presence of the insured vehicle.
(h)    The insured driver could have taken extra caution and slowed down prior to the accident, noting that he did see that there was a car stopped on the roadway and was unsure as to what it was doing and was blinded by their headlights.
(i)    The fact that the police did not find the insured driver responsible for the subject accident supported that it was not the insured driver's fault. Rather, it was a combination of the environment and the fact that it was a dark night.

Documents Considered

I have considered the documents provided in the application and the reply, and the further information provided by the parties. I have determined the matter on the papers. The parties did not request an oral hearing.

Submissions

The claimant makes several submissions about the shortcomings of the insurer's submissions and goes on to say relevantly:
(a)    Any suggestion that the claimant and SK exposed themselves to the risk of injury by crossing Olive Street at a point where it was unsafe to do so because they would not be seen by cars travelling in that street is contrary to their evidence and any factual analysis. The claimant said that they could see clearly to the end of the street. One of the maps attached to their statements indicates the street lighting in place in Olive Street.
(b)    The Police report indicates that the accident location was approximately 120 metres north of the Wilson and Olive Streets intersection. This would be consistent with 'halfway' as this stretch of Olive Street is between 240 and 250 metres long.
(c)    If the insured driver travelled the whole distance from turning into Olive Street until the point of collision at 47 kph he should have been able to see the claimant and SK for at least seven seconds. More likely, at an average speed of 30 kph, he would have been able to observe them for about 12 seconds.
(d)    The insured driver states that after turning into Olive Street he did not observe any vehicles in Olive Street travelling in the opposite direction or in fact, the claimant and SK. An analysis of the timeline involved in this matter leads to the inescapable conclusion that the car travelling north in Olive Street was in the block between Olive and Wilson Streets at the time the insured driver turned into Olive Street, and it is probable that at that time the claimant and SK were either in the process of crossing Olive Street or standing in the middle of the street "negotiating" with the northward travelling driver.
(e)    The insured's statement is difficult to reconcile with the facts.
(f)    The driver travelling north who stopped to let the claimant and SK pass in front of his car had no difficulty seeing them.
(g)    There is no pedestrian crossing in Olive St between the SS&A Club and Guinea Street. The claimant and SK's evidence is that the place where they chose to cross was, in fact, the safest place available for them to attempt such a crossing.
The claimant's primary submission is that there is nothing in her behaviour in the relevant period leading up to the accident that would allow me to conclude that a reasonable person in the circumstances of the claimant and SK failed to take precautions against the risk of harm being in this case the risk of being struck by a motor vehicle. This is because:
(a)    They chose the most appropriate and safest place to cross Olive Street.
(b)    There were no cars travelling in Olive St when they chose to commence that crossing.
(c)    Whilst "negotiating" with the driver in the northbound lane in Olive Street, they were standing either on the centre of the roadway or closely adjacent to the centre of the roadway.
(d)    They could not have had any warning of the approach of the insured driver's vehicle.
The claimant submits that the sole cause of the accident was the insured driver's failure to properly control his vehicle to not strike the claimant. In his statement to the Police (the accuracy of which is doubted), the insured driver says in answer to the question as to when he first saw the claimant and SK, "Ah, probably two seconds before the impact" and later in answer to the question "…one of the group of witnesses that was over here said that afterwards you come up to them and said that you thought you had enough room to go past." He states: "I did. But I swerved enough". At 47 kph, he would have seen the claimant and SK, even on his version, when he was at least 26 metres from them, a space adequate to take action to avoid striking them particularly as, even on his account there was adequate space on the roadway to steer around the claimant and SK.
The claimant submits there should be no apportionment. Alternatively, it should be no more than 10%.
The insurer submits that the claimant failed to take reasonable care when crossing the road. It refers to the Google map images contained, and notes of the claimant had the option or opportunity to cross the road at a safer location, namely at the roundabout where there is a pedestrian refuge island.
It admits that the claimant failed to observe her surroundings by paying adequate attention to the factors which contributed to the subject accident, namely the failure to return to the footpath and cross over to a safer location. It submitted that if she had maintained a proper lookout and was not distracted by the oncoming vehicle she may have been able to heed the presence of the insured vehicle and that her failure to do so was a result of alcohol consumption.
The insurer submits that the claimant's alcohol levels were low but sufficient to cause impairment of their abilities and that a reasonable person with no alcohol in their system would have responded differently to the situation.
It submits that the insured driver could have taken extra caution and slowed down to avoid the impact. It submits that the insured's statement supports the proposition that evasive action was taken as soon as possible, but the insured was blinded by the other vehicle's headlights.
I have also considered the insurer's reply submissions dated 20 August 2020 in the matter of SK, where in the insurer submits that the correct approach to the assessment of contributory negligence is to be conducted on the basis that the insured driver was not required to keep a better lookout than the claimant. It makes this submission in the context of evidence that establishes that the insured driver's ability to observe the presence of pedestrians on the roadway was limited to 1 to 2 prior to the conclusion collision. He submits that based on the evidence of Stephen Robinson it would have taken the insured driver 10 seconds to cover the distance from the point at which it was visible to the claimant and SK. It submits that the negligence of the insured driver was limited to his failure to observe the presence of the pedestrians within a window of not more than two seconds, and to react to their presence on the roadway. He relies on evidence to support a finding that the insured driver did react and attempt to avoid an impact with the pedestrians, but there was insufficient time to do so. It submits that when weighing up the respective culpability in the circumstances, I should have no difficulty in finding that the claimant's negligence was at least equivalent to that of the insured driver.

Reasons

In conducting my review, I have considered the following legislation and guidelines:
·        the Act;
· Motor Accident Injuries Regulation 2017;
·        Motor Accident Guidelines 2017;
·        Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b);
·        Motor Accidents Compensation Act 1999 (NSW), s 138, and
·        Civil Liability Act 2002 (NSW), ss 5B, 5R.
In answering the question posed by Schedule 2(3) (g) of the Act, the power conferred on me, involves a comparison of both the claimant's and the insured driver's culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing the damage: see e.g. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case, the judgment of the Court provides:
“The making of apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
Section 3.38 provides for the reduction of weekly statutory benefits after six months for contributory negligence. However, it is to be applied mutatis mutandis for an assessment under s 3.11 and s 3.28.
Subsection 3.38(1) provides that
"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".
Section 3.38 does not purport to impinge on the obligation to have regard to the injured person's share in the responsibility for the damage; it should not be read as an exception to s 9(1) Law Reform (Miscellaneous Provisions) Act to which it is made subject by s 3.38 of the Act.
Unlike the situation under the Motor Accidents Compensation Act 1999 (NSW), s 138, which was the subject of discussion in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (see, in particular, [84]-[85]) and the various cases to which the insurer refers in its submissions, the Act was enacted later than the Civil Liability Act, such that s 5R of the Civil Liability Act should be taken as subject to s 3.38(3) of the Act. For this reason, caution is necessary with respect to the authorities which pre-date the Act. In particular, the change of emphasis which was said to have arisen from the enactment of the Civil Liability Act and which raised 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 has arguably undergone a subtle change. The prevailing requirement emerging from s 3.38 (in particular, as derived from the nature of the role of the Dispute Resolution Service in s 3.38(3)(c)) is that I apportion liability according to what I consider and reason to be just and equitable in the circumstances of the case. Therefore, under this new statutory regime, unlike its predecessor, the conduct of the driver is open to be judged against a higher standard than that of the pedestrian: cf. T and X Company Pty Ltd v Chivas [2014] NSWCA 235; 67 MVR 297 at [54].
Under the newly enacted statutory regime, the claimant's and the insured driver's shares in the responsibility for the injury occasioned would appear to be a mandatory factor in considering a "just and equitable" apportionment. The legislative decision to maintain the requirement of just and equitable determination renders the effect of the assessment under s 5R of the Civil Liability Act subject to the power to consider other factors relevant to the "just and equitable" test.
Therefore, in my view, it is open to me to consider the obligations the imputed knowledge of the significant damage that a motor vehicle may do to a pedestrian in determining contributory negligence under s 3.38 of the Act, despite the claimant's decision to cross the road where she did, being one, which, for reasons to which I will come, was not a failure to take reasonable care for her own safety, in the circumstances. And I observe, that even if I am wrong in my construction of the effect of s 3.38 in the legislative scheme, it is nonetheless open to me to proceed to find as I do: see T and X Company Pty Ltd v Chivas at [11] and [16].
At common law and under the Civil Liability Act, contributory negligence is a defence. Under the Act, in this statutory context, it is, by virtue of the operation of s 3.38 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 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 which wishes to rely upon the existence of the condition of exclusion under s 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].

I am not satisfied on a preponderance of the evidence that the conduct of the claimant was such as to fail to take reasonable care for her own safety for the following reasons:
(a)First, while a pedestrian crossing at a roundabout might be more conspicuous and it might be a potentially safer location at which to cross; choosing to cross otherwise, in the absence of a signalled crossing or a pedestrian crossing within 20 metres or more, was not, in the circumstances, an obvious danger to the claimant and other road users such that it constituted a reasonable failure to take care for her safety. Meagher JA in Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 said, relevantly, at [35]:
“[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". …”
(b)Second, the claimant expressly averted to the safety of the position at which she decided to cross as she could clearly see the end of the street, which included the shop opposite the Star Bar. She plainly was visible as the northbound vehicle, which slowed to allow her and her companion, SK, to cross. She also adverted to the fact that there was no signalled or pedestrian crossing available for her and her companion to cross in her decision to cross the road. As reasonable, prudent, sober pedestrians make identical decisions every night of the week there is no proper reason to apportion liability on the basis of this decision.
(c)Third, I am not satsfied that her choice to cross where she did was infected by the presence of alcohol in her system. Indeed, the presence of alcohol in a person's system does not proscribe the locations of which they are reasonably permitted to cross a road.

(d)Fourth, I am not satisfied on the evidence that any presence of alcohol in the claimant's system influenced or impacted her ability to cross the road. Were I to so find, it would be, on my part, mere speculation.

(e)Fifth, I am also not satisfied that the claimant ought to have heard the oncoming insured vehicle and been aware of its headlights in circumstances where she was negotiating with the driver of the stationary vehicle to cross the road.

The insured driver's conceded breach was not merely a brief deficit of attention or impairment of vision by a so-called "halo effect"; it was the failure to abide by and exercise the requisite caution in circumstances where there was a clear anomaly in the flow of traffic on a dimly lit regional centre street. Additionally, it was a failure in circumstances where the insured driver, an experienced public transport provider, driving a vacant taxi, knew that those streets were, at that time, busy with potentially inebriated patrons of the popular Winery Walkabout. The reasonable person in the position of the insured would readily anticipate encountering a pedestrian walking across the road at that hour.
In Boateng v Dharamdas [2016] NSWCA 183 Gleeson JA (with whom Leeming JA and Davies J agreed) said at [75] and [77]:
[75] The question of whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant, and a reasonable person would have taken those precautions in those circumstances: Civil Liability Act s 5B(1).
…
[77] In Warth v Lafsky 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 presence of a stationary vehicle in the middle of a road, or indeed, partially on the insured driver's side of the road, as he claimed, was conspicuous and ought to have alerted the insured driver to the need to exercise caution when approaching it. I reject the insurer driver's self-serving statement contained in his statement that he continued at his "slow" speed: 46 kph. In the circumstances I have described, it is not, relevantly, slow. Rather, I consider that the conditions I have described required caution and a reduction in speed to no more than 30 kph to be suitably slow, at which speed he would have been able to observe the stationary vehicle for more than 12 seconds. The fact that the insured driver did not reduce his speed in these circumstances, or indeed, stop until he gained an appreciation for the reason why the car was stationary, in my opinion, constitutes a serious failure to exercise the requisite level of caution expected of a reasonable and prudent driver, which accords with him bearing the burden of the liability entirely. The evidence also satisfies me that the insured driver failed to take appropriate evasive action when he did see the claimant on the roadway. The preponderance of evidence leads me to conclude that he thought he was swerving enough to avoid colliding with the claimant, but he did not.
Accordingly, I am not satisfied that there is an appropriate basis upon which I properly find that the claimant should bear some responsibility for the accident. Therefore, in answer to the question posed by Schedule 2, (3) (g) the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act.

Costs and Disbursements

I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,826 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

The insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act.
Effective Date: This determination takes effect on 30 September 2019.
Legal Costs: The amount of the claimant's costs assessed in accordance with the Act is $1,826 inclusive of GST.

B. K. Nolan

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 165

31 May 2021