Abg v Allianz Australia Insurance Limited
[2021] NSWPIC 166
•31 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABG v Allianz Australia Insurance Limited [2021] NSWPIC 166 |
| APPLICANT: | ABG |
| RESPONDENT: | Allianz Australia Insurance Limited |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 31 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- 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 Motor Accident Injuries Act 2. Effective Date: This determination takes effect on 12 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
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 Motor Accident Injuries Act 2017 (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.
The claimant has sought an internal review of a decision of the insurer dated 12 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. She made an application for a miscellaneous claims assessment in respect of an internal review decision dated 2 December 2019, made by the insurer, varying its original decision to find that she was 30% contributorily negligent in the motor vehicle accident.
The dispute has been referred pursuant to ss 7.32 and 7.42 of 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 Street, Central Albury. She had consumed alcohol during the day.
At about 7.15 pm, she and her companion, KJ, also a claimant before me in a related matter (APP-10260624), 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, KJ, 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 Street entered Olive Street and approached the claimant and KJ.
Both the claimant, KJ, 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 KJ that it was giving way to them to complete crossing the road.
The claimant and KJ were struck by the insured driver travelling south in Olive Street.
In reasons accompanying the Certificate of Determination of internal review, the internal reviewer found that the claimant:
(a) assumed to keep a proper lookout for vehicles before crossing the road.
(b) assumed an unsafe position in the middle of the roadway while affected by alcohol.
(c) failed to exercise sufficient care for her own safety.
He had regard to Road Rules 2014, regulation 236 and 230 and concluded that based on the evidence before him, having regard to the previous cases decided, notably Anikin v Sierra [2004] HCA 64; 79 ALJR 452 (where the claimant was walking along the side of the road at night and was struck by a bus which had clear vision of him, and was apportioned 25% of contributory negligence as he did not move out of the path of the bus and did not keep a proper look out), the appropriate apportionment was 30% because, he found that the claimant chose to cross the road way at a poorly lit and unsafe area, rather than a safer crossing at a refuge island present at the intersection of Guinea Street and Olive Street.
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 KJ 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 which 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 KJ for at least 7 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 KJ. 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 KJ 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 KJ pass in front of his car had no difficulty seeing them.
(g) There is no pedestrian crossing in Olive Street between the SS&A Club and Guinea Street. The claimant and KJ'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 their 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 KJ 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) No cars were travelling in Olive Street 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 control his vehicle to not strike the claimant properly. In his statement to the Police (the accuracy of which is doubted), the insured says in answer to the question as to when he first saw the claimant and KJ, "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 KJ, 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 KJ.
The claimant submits there should be no apportionment. Alternatively, it should be no more than 10%.
In submissions dated 20 August 2020, 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 seconds prior to the conclusion collision. It 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 KJ. It submits that the negligence of the insured driver was limited to his failure to observe the presence of the pedestrians within a window if 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 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 finding that the claimant's negligence was at least equivalent to that of the insured.
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;
· 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 claimants 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 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 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].
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, KJ, 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 section 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 Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.
B. K. Nolan
Member (Motor Accidents Division)
Personal Injury Commission