ABZ v AAI Limited t/as AAMI

[2021] NSWPIC 246

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246

APPLICANT:

ABZ

RESPONDENT:

AAI Limited t/as AAMI

Member:

B. K. Nolan

DATE OF DECISION:

12 July 2021

CATCHWORDS:

MOTOR ACCIDENTS- Miscellaneous Claims Assessment; whether the insurer is entitled to refuse to pay the claimant statutory benefits beyond 26 weeks further to section 3.11 of the Motor Accident Injuries Act 2017 (2017 Act); Claimant alleged motor accident caused by bent sign; Insurer determined claimant was wholly at fault for the motor accident; claimant requested an internal review of the decision; insurer affirmed original decision; Claimant submits photographs and factual investigation report are of little probative value as they were taken of the replacement sign and not the original; insurer submits the claimant failed to keep a proper lookout and proceeded on the roadway when it was unsafe to do so colliding with the sign; Held- not satisfied that the insurer has discharged its burden in respect of its decision under section 3.11 of the 2017 Act; therefore insurer cannot refuse to pay the claimant’s statutory benefits; Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017.

Determinations made:

1. The insurer is not entitled to reduce the claimant’s statutory benefits further to section 3.11 of the Motor Accident Injuries Act 2017.

2.    Effective Date: This determination takes effect on 8 April 2020.

3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,760 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 as to whether the insurer is entitled to refuse to pay the claimant statutory benefits beyond 26 weeks further to section 3.11 of the Motor Accident Injuries Act 2017 (the 2017 Act):  Schedule 3, clause 2(n) of the 2017 Act.

1.The claimant was involved in a motor vehicle accident on 8 April 2020.  He lodged an application for personal injury benefits with the insurer on 16 April 2020.  

2.In the statement made further to an interview with an insurance investigator on 24 June 2020, which was uncontradicted by the insurer, the claimant said relevantly, as follows. 

3.He was travelling along Woodville Road, Guildford at the intersection of Rhodes Avenue.  He was very familiar with the area as he had travelled there many times before. 

4.There was a raised concrete median strip in the middle of Woodville Road, which travels through the intersection so that vehicles in Rhodes Avenue cannot turn right onto Woodville Road.  There is a left turn only sign on the median strip of Woodville Road adjacent Rhodes Avenue.

5.The speed limit for the area is 70 kilometres. 

6.The weather on the evening was fine and dry. 

7.At the time of the incident, he was on his way to his cousin’s house. He had turned onto Woodville Road and travelled south.  He had intended to continue all the way down Woodville Road until he reached the intersection of Barbers Road where he could turn left.  He would then take the first left into Beverly Crescent.  This takes about five minutes to drive. The accident happened over just halfway there, so he estimates had only been driving for two or three minutes when the incident occurred.  He denies being distracted at the time of the accident saying that he was not adjusting his GPS or radio, eating, drinking or smoking, playing loud music or playing on his phone.

8.He said that the road approaching the scene of the accident is slight left-hand bend for the direction in which he was travelling.  The road is level as he approached the scene then it goes slightly uphill for south bound vehicles.  There were some other vehicles on the road at the time but not many.  He recalls there are couple of vehicles some distance ahead of him travelling south on Woodville Road, exactly how far ahead he could not say.  He cannot recall which lane they were in.  There were also some vehicles 50 metres or so behind him.  He cannot recall what lanes they were in.  It was dark at the time, and he had his headlights on automatic.  There were no vehicles beside him and no parked vehicles near the scene.  He cannot recall oncoming vehicles heading north along Woodville Road at the time.  It was cold that night.  He had his driver’s window down all the way, but all other windows were fully up.

9.He said he was driving below the speed limit at 65 kilometres an hour.  He was in the southbound lane nearest to median strip.  He was intending on turning left at the intersection onto Barbers Road which was a few kilometres further down the road past the accident scene.

10.Suddenly, as he was passing the intersection of Rhodes Avenue the driver’s side external mirror of his car smashed and sent glass and debris flying towards him.  He immediately moved his head to his left away from it.  At the time he was not sure exactly what had happened.  It was sudden and he did not have any warning.  He now knows that the mirror struck the left turn only sign on the median strip at the intersection.  He had not seen the sign as he approached it and did not notice it that was leaning over into his lane or damaged.  He was in the middle of the southbound lane nearest to median strip when the accident happened.  He says there were still a normal gap between the driver’s side of his car and the median strip at the time.  He cannot say exactly how big the gap was, but it was probably about half a metre or so.  He did not drive directly next to the median strip or upon to it.

11.On 6 August 2020, the insurer advised the claimant that for the purposes of s 3.11 of the 2017 Act it had determined the claimant was wholly at fault for the motor accident.

12.On 22 September 2020, the claimant requested an internal review of the decision.

13.By decision dated 8 October 2020 upon internal review, the insurer affirmed its original decision that the claimant was wholly at fault for failing to keep a proper look out. The internal reviewer considered the The Road Safety Solutions report dated 23 September 2020 by Michael Griffiths (the Griffiths Report), which concluded the claimant could not have properly come in contact with the bent sign as it was not causing any obstruction or danger to passing traffic.  Therefore, the insurer concluded that the claimant was wholly at fault for the accident because he failed to keep a proper look out and drive in a safe manner.

14.The insurer noted that the accident was a single vehicle accident and had regard to AAI Limited v Singh [2019] NSWSC 1300; 90 MVR 1 (Singh) as support for the proposition that in single vehicle accidents where no other person is at fault, s 5.2 of the 2017 Act does not operate to deem fault in the injured person. The insurer considered the definition of “fault” was answered by whether the subject road sign on median strip was bent and leaning into the roadway to such an extent that it caused a danger or obstruction to passing traffic and resulted in the subject accident occurring.  The insurer reviewed the photographs provided by the claimant in particular photographs taken “13 April 11:53 pm” and considered that although the subject sign was slightly bent and leaning it was not protruding into the lane of traffic to such an extent that if the claimant had kept a proper look out whilst driving and drove in a safe manner that the vehicle would not have collided with the subject sign.  The insurer therefore considered that the claimant had failed to exercise reasonable care incumbent upon all road users and considered that if the person caused an accident because of their negligence then they were at fault and the claimant, being in that category, was therefore, at fault.

15.The Griffiths Report relies on the photographs taken by the claimant depicting the signs and uses a yellow line, which Mr Griffiths opines, highlights the alignment of the road of the raised median strip to conclude that had the claimant been driving in his lane could not have been sufficiently close to the median strip for the right-side exterior rear view mirror to have come in contact with the sign or post supporting the sign.  He relies on photographs taken from an unidentified vehicle driven in the same direction as the claimant was driving, from the driver’s side, which, he opines, would tend to support his conclusion that a vehicle positioned within its lane would not come in contact with the signpost even with only the side mirror.  The Griffiths Report also makes some observations with respect to the causation of the injury which I did not consider for the purposes of this determination, as they are irrelevant.

16.I observe that it is apparent from the photographs taken by the factual investigator, as contained in the Griffiths Report (photographs 18 and 19), that the subject sign has encountered numerous bumps and scrapes from vehicles as it is bent and misshapen.  I also observe (photographs five and six) that the claimant’s mother’s vehicle’s side mirror, would appear to bear significant marking consistent with a scrape from the sign, as described. 

DOCUMENTS CONSIDERED

17.I have considered the documents provided in the Application and the Reply and the further information provided by the parties.

SUBMISSIONS

18.In submissions dated 3 September 2020, the claimant refers to photos taken of the relevant sign, post-accident, which shows with markings where vehicles and bus passed the sign as it was not perpendicular to the roadway.  He also obtained a video of the sign on 15 May 2020, which, he submits, was after the sign was presumably replaced by the RMS.  He submits that the photographs and factual investigation report are of little probative value as they were taken of the replacement sign that was presumably perpendicular to the roadway on 3 July 2020. 

19.In submissions dated 23 October 2020, prepared in support of this miscellaneous claims dispute, the claimant makes reference to these earlier submissions and goes on to submit that the internal review was misguided by taking into account irrelevant considerations namely the factual investigation report, which was prepared on or about 3 July 2020, after, he submits, the sign was replaced by the RMS. He submits that the Griffiths report is of no assistance as Mr Griffiths did not provide any measurements of the rear-view mirror from the roadway and also did not take any measurements of the rear-view mirror when he inspected the motor vehicle which was involved in the accident.  He says that when Mr Griffiths inspected the vehicle, the shards of glass were still inside, however there was no reference to them in his report or any comment as to whether the shards where in fact from the right-hand mirror or not.  He submits that Mr Griffiths has not taken to account the possibility that at the time of the accident the sign was bent, as alleged.  He also objects to the Griffiths Report on the basis that Mr Griffiths has ventured outside his expertise and commented on the injury to the claimant’s eyes sustained in the accident.  The claimant therefore submits that the insurer’s decision ought be “set aside”.  He seeks the costs of the application before me.

20.In submissions dated 16 November 2020, the insurer goes through the material upon which it has relied, to which I have had regard.  It submits that the motor accident was caused wholly or mostly by the fault of the claimant given that he failed to keep a proper look out and proceed on the roadway when it was unsafe to do so colliding with the sign.

21.It relies on two possible scenarios:

(a)     The sign was as depicted in the photograph taken on 13 April 2020 and supported by the claimant’s version to police that the sign was slightly bent into lane three, but it did not intrude or obstruct the roadway, in which case it submits that the claimant was travelling too close to the median strip to result in the collision with the sign; or

(b)     The sign was leaning into the lane, in which case it submits that it would follow the claimant would have had a greater opportunity to observe the sign, which supports the submission that he ought to keep a proper look out.

22.It submits that either scenario supports the finding that the claimant failed to exercise reasonable care and breached his duty of care by failing to keep a proper look out, particularly in circumstances where the claimant’s evidence is that he did not see the sign prior to the collision. It submits that it follows that the claimant failed to control his vehicle to avoid injury to himself and he failed to take evasive action as to avoid harm to himself particularly, in circumstances where it was the claimant’s evidence that there were no vehicles near him when the collision occurred.

23.It submits that I would be satisfied “on the balance of probabilities” having regard to all material available to me that the motor accident was caused mostly by the fault of the claimant for the purposes of Schedule 2(3)(e) of the 2017 Act.

REASONS

24.Pursuant to s 7.40 of the 2017 Act a dispute means a dispute between the claimant and an insurer about a miscellaneous claims assessment matter.

25.The insurer’s decisions are the subject of the present matter before me, were made pursuant to s 3.11 of the 2017 Act on the basis that the insurer determined that the claimant was wholly at fault for the accident.

26.This finding by the insurer pursuant to s 3.11 of the Act finds no textual equivalent in the disputes prescribed by Schedule 2, clause 3 of the 2017 Act:

(a)    Subclause (d) refers to whether for the purposes of section 3.11 the motor vehicle accident concerned was caused by the fault of another person.

(b)    Subclause (e) refers to whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person.

Neither miscellaneous claims matter is the matter determined by the insurer under
s 3.11 of the 2017 Act.

27.In my view, subclause 2 (n) must therefore necessarily be engaged as it provides for the determination of any issue of liability for a claim, or part of the claim, for statutory benefits not otherwise specified in the Schedule as a miscellaneous claims matter.

28.The relevant matter with which I am seised is whether the insurer is entitled to refuse to continue to pay the claimant statutory benefits beyond 26 weeks further to the provisions of s 3.11 of the 2017 Act.

29.The insurer approached this task by considering that the claimant had failed to exercise reasonable care incumbent upon all road users and considered that if the person caused an accident because of their negligence then they were at fault. It concluded that the claimant, being in that category, was therefore, I interpolate, wholly at fault.

30.In my view, the seductive simplicity of this reasoning betrays a textual delinquency in
s 3.11 (and similarly, s 3.28) of the 2017 Act, which renders it an imperfect determinant of disentitlement for claims for statutory benefits by drivers in single vehicle accidents. The issue was only partially touched on by Singh, however, not resolved. It centres on the proper construction of the expression wholly or mostly at fault, as it appears in
s 3.11 and s 3.28 of the 2017 Act, and the implication it has for its assessment in accidents of this kind.

Consideration

31.Section 3.11 of the 2017 Act provides:

“(1)    An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—

(a)the motor accident was caused wholly or mostly by the fault of the person, or

(b)the person’s only injuries resulting from the motor accident were minor injuries.

(2)    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) was greater than 61%. [my emphasis]”

32.Section 3.28 is in similar terms:

“(1)  An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—

(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

…

(3)    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) was greater than 61%.”

33.Section 3.38(1) and (3) of the referred to in s 3.11(2) and s 3.28(2) of the 2017 Act, relevantly, 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.

…

(4)    The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—

(a)if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or

(b)by such percentage as the parties agree, or

(c)in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.

If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.”

34.The relevant inquiry mandated by s 3.11 and s 3.28 of the 2017 Act is an appropriation of fault, namely, whether the injured person is wholly or mostly at fault.  The motor accident involved the injured person’s vehicle and a sign. The sign’s placement could potentially incorporate the toritious liability on the part of the statutory authority responsible for its placement.

35.Neither the insurer nor the claimant has not made any allegation of liability against the statutory authority responsible for the positioning of the sign, which would introduce a putative alternative tortfeasor. It would also introduce the requirement to undertake the additional consideration of the breadth of the phrase “is a result of and is caused” the definition of “motor accident” in s 1.4 of the 2017 Act.

36.Section 1.4 of the 2017 Act defines a motor accident as:

“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

(a)  the driving of the vehicle, or

(b)  a collision, or action taken to avoid a collision, with the vehicle, or

(c)  the vehicle’s running out of control, or

(d)  a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

37.This definition of motor accident is naturally read as referring to the contribution made to the death or injury by an event caused by and in the course of an incident, which answers that descriptions in (a) – (d). It seems to me the statutory authority’s conceivable negligence in this case cannot fall within this statutory concept of a motor accident under the 2017 Act.  I also observe, on one view, for the reasons I express in paragraph 43, below, Part 5 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) does not apply to motor accidents. Although there is a textual inconsistency in the exclusionary provision in s 3B(e1) of the Civil Liability Act and the inclusionary provision in s 3B(2) of the Civil Liability Act, the specific would override the general. Most likely, this informs the legislative intention regarding the interpretation of the expression “motor accident” in s 1.4 of the 2017 Act: as the legislature would not introduce the protections in Part 5 of the Civil Liability Act to all civil liability except that arising from motor accidents. Its intetion is to be construed cohesively across all legislation within its contemplation at the time of the Act’s enactment. That said, s 5.6 of the 2017 Act may be seen to gainsay this conclusion; which may, in turn, occasion the re-opening for consideration some of the findings in Singh. However, as no negligence on the part of the statutory authority is here alleged, these issues do not directly arise for consideration in the instant dispute. There is only a single protagonist appurtenant to the dispute – the injured person. 

38.While not dealing directly with the meaning to be ascribed to the expression “fault” in
s 3.11, in Singh, the Court at [24] identified the legislative intention of s 3.11 of the 2017 Act as the cut-off of statutory benefits at 26 weeks should turn upon the claimant’s fault in causing the motor accident. It was not contested, however, in that case that the cause of the accident involved no fault on the part of the injured person (see eg. Singh at [1]–[3]), so the inquiry went no further than to negate the operation of purported deeming provision in s 5.2, to make the injured person, relevantly, “at fault”, in so far as that phrase is a determinant of entitlement to statutory benefits in s 3.11 of the 2017 Act.

39.The meaning to be ascribed to the expression “fault”, and, “at fault”, in the 2017 Act, is not entirely pellucid.

40.Although the text of the legislation is both the starting and ending point, the legal meaning of the text, must be construed from the outset having regard to both context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 368 [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at 149 [20], 157 [41], 162 [64].

41.The 2017 Act establishes a hybrid scheme of compulsory third party insurance, which provides for statutory benefits for injured road users regardless of fault for 26 weeks (cf. s 3.37 of the 2017 Act which disentitles a person charged or convicted of a serious driving offence related to the accident). After 26 weeks, the insurer may determine that the injured person is disentitled to statutory benefits if, the are wholly or mostly at fault, which is defined as contributory negligence of the injured person of greater than 61%. The evident purpose of this aspect of the scheme is to give injured persons regardless, of fault, access to benefits for the injuries they sustained in a motor vehicle accident immediately, with a view to promoting recovery and return to work. This is to be contrasted with the scheme under the Motor Accident Compensation Act 1999 (NSW) which did not see not at-fault injured parties paid any common-law damages for several years following the accident. The purpose does not, of itself, illuminate how fault is to be assessed.

42.Section 1.4 of the 2017 Act defines “fault” as it appears in the 2017 Act to mean “negligence or any other tort”. There is no carve out of this definition for statutory benefits. This connotes tortious liability. Tortious liability is a legal construct which determines civil liability for the injuries caused to a person by another person arising from a breach of a duty fixed by law, the breach of which is redressible in an action for unliquidated damages.  In the context of a “motor accident”, it is predicated on a duty of all road users to take reasonable care while using the road. A duty of care is breached when a person is injured because of an act or omission of another person, when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way. That duty exists for the benefit of other road users, not the person to whom the duty attaches. Specifically, a driver cannot have a claim in negligence against him or herself: see Whitfield v Melenewycz [2016] NSWCA 235; 92 NSWLR 624 at [31].

43.The Civil Liability Act applies to the determination of entitlement to statutory benefits. Sections 3B(1)(e1) and 3B(2) of the Civil Liability Act apply to an award of damages and motor accidents repsctively. A determination under Part 3 of the 2017 Act is not an award of damages, which is defined in s 1.4 of the 2017 Act not to include a claim for statutory benefits. Therefore, for the purposes of the determination of liability for statutory benefits, per se, the 2017 Act works to import the statutory codification of the law of tortious liability, and more particularly, the definition of “negligence” in s 5 of the Civil Liability Act, viz. the failure to exercise reasonable care and skill. It does not exclude the common law. A determination of “fault”, therefore, for the purposes of a claim for statutory benefits, commences from the starting point of establishing a person’s or persons’ tortious liability for the cause of the accident under the common law and the Civil Liability Act.

44.Section 3.2 of the 2017 Act, found in Division 3.1 “Entitlement to Statutory Benefits”, which precedes ss 3.11 and s 3.28 in the 2017 Act, in the context of determining the relevant insurer by which the statutory benefits are payable, refers to the “at-fault motor vehicle”. Section 3.2(4) provides the “at-fault motor vehicle” is ascertained by a determination of (a) the owner or driver of the motor vehicle whose fault  in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or (b) if there is more than one such motor vehicle--the owner or driver of the motor vehicle who was most at  fault.” In this context, the owner or driver is “at fault” if they were the driver or owner of a vehicle whose fault in the operation of that vehicle caused the injury.  In this context, “fault” synthesised with causation of injury has, again, the connotation of tortious liability intended by s 1.4 fo the 2017 Act. 

45.Section 3.44 of the 2017 Act provides that any determination made by the insurer or the Commission regarding any fault of the owner or driver in the use or operation of the motor vehicle, or contributory negligence in relation to the motor accident is not binding in a claim for damage in relation to the same motor accident. In this context “fault”, juxtaposed with contributory negligence, again, would appear to have the connotation of tortious liability as attributed by s 1.4 of the 2017 Act.

46.Section 5.1 of the 2017 Act defines a “no-fault” motor accident as “an accident in the State not caused by the fault of the owner or driver of the motor vehicle involved in the accident in the use of the operation of the vehicle and not caused by the fault of any other person” (my emphasis).  “Fault” in this instance again has the connotation of tortious liability as attributed in s 1.4 of the 2017 Act.

47.Under s 5.2 of the 2017 Act, however, “the death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of s 1.10 of the 2017 Act) is, for the purposes of and in connection with any claim for damages or statutory benefits in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. The circuitous consequence of the deeming in s 5.2 of the Act, suggest that in this context, “fault” has the connotation of deeming liability for the the payment of statutory benefits on the compulsory third party insurer of the motor vehicle. This has been held to be contrary to the actual position in relation to the “fault” in s 3.11 of the Act - see eg. Singh at [13], [20] and [24]. But as I have already canvassed, this fault of the driver of the single motor vehicle involved in the accident in Singh was never in issue.   

48.“Fault” per se, is therefore capable of divergent contextual meanings in the 2017 Act: tortious liability and liability for injuries.   While this divergence would appear to be inconsistent with the requirement when approaching the task of statutory construction to have regard to the whole of the statute, and to approach the reading of the text of a provision with the understanding that a legislature intends to pursue its purposes by coherent means and give effect to harmonious goals, the conflict needs to be resolved to allow them to operate coherently, through a constructional choice which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require a determination of “which is the leading provision and which the subordinate provision, and which must give way to the other”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [70], 381-382. See also Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 88 ALJR 735, particularly at [68] per Hayne and Kiefel JJ. It would seem that the meaning of fault as ascribed to its use in s 5.2, must be subordinated to its use more generally in the 2017 Act. As the Court said in Singh at [24]: “Fault in the causation of injury and fault in the causation of an accident are two different things – not in the empirical world, or in practical terms, but in the concepts of this statute. It is the express and apparently deliberate intention of ss 3.11(1)(a) and 3.28(1)(a) that the cut-off of statutory benefits at 26 weeks should turn upon the [injured person’s] fault in causing the motor accident.”

49.The expression “the fault of the person” in ss 3.11 and 3.28 of the 2017 Act would appear to refer only to the tortious liability of the injured person, viz. legal causation for the accident attaching to the injured person. This is fortified by the fact that s 3.11 and s 3.28 of the 2017 Act contain alternative qualifying adverbs of the phrase “at fault” - “wholly or mostly”. By their colocation, these qualifiers inform each other. They are clearly intended to address the same mischief: contributory negligence, as s 3.11(2) and 3.28(2) define. Hence, they operate to require comparisons between the relevant importance of the acts or omissions of at least two parties in causing the accident. Indeed, ss 3.11(2) and 3.28(2) make plain it is the legislative intention of ss 3.11 and 3.28 that there be an assessment of apportionment of liability further to the analysis required by s 3.38(1) and (3) of the Act, (that is, the application of the common law and enacted law as to contributory negligence that applies to an award of damages) as to what is “just and equitable” as between the injured person and another person by having regard to their respective shares in the responsibility for the accident. It incorporates therefore, not only consideration of the relevant provisions of ss 5D, 5E, 5R, 5S and 5T of the Civil Liability Act, but also the principles articulated in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 and the operation of s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). This interpretation receives textual support from Schedule 2, clause 3(d), which defines the dispute as whether for the purposes of s 3.11 of the 2017 Act, the motor vehicle accident concerned was caused by the fault of another person. Oddly, s 3.28, which finds its equivalent in Schedule 2, clause 3(e), defines the dispute as whether for the purposes of
ss 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person. The legislative intention to be gleaned form this inconsistency is not readily apparent.

50.In my opinion, such a comparative analysis as is expressly required by an assessment of contributory negligence under ss 3.11 and 3.28 of the 2017 Act, is utterly inappropriate when, as here, the accident involves no other person. See eg. Axiak v Ingram [2012] NSWCA 311 (Axiak), Davis v Swift [2014] NSWCA 458 (Davis), and Whitfield v Melenewycz [2016] NSWCA 235, which make a similar point in respect of the application of an apportionment exercise to a blameless accident under the Motor Accidents Compensation Act 1999 (NSW). In short, the apportionment exercise required by ss 3.11 and 3.28 of the 2017 Act cannot apply unless there is another tortfeasor, otherwise the analysis is completely artificial and contrary to the common law position (not disavowed by the Civil Liability Act or other law incorporated by the operation of s 3.38 of the 2017 Act) that the claimant can have no tortious liability to himself.

51.Thus, the claimant, who cannot be “at fault”, cannot therefore be “wholly or mostly at fault”. To find to the contrary requires not only an abnegation of the established legal position that a person does not owe a duty of care to himself or herself and an apportionment exercise in a vacuum. Even if ss 3.11 and 3.28 of the 2017 Act, were to create a separate and free-standing test liability unique to its provisions (which is not, in my opinion, supported by the statutory text or context), the claimant nonetheless, cannot be wholly at fault. This would involve the uncoupling of the operation of express alternative qualifiers to incorporate the test fo contributory negligence as spelt out in
ss 3.11(2) and 3.28(2).

52.Assuming, for a moment, so as to test the proposition, this were to be the preferred construction of the provision, the claimant’s operation of the vehicle, being the sole cause of the accident and his injuries, would always operate to mandate a finding of contributory negligence of 100%. This would mean that in every motor vehicle accident involving only one injured putative tortfeasor, that person will always be the sole cause of the accident, with the consequence that in every case there would be a finding of 100% contributory negligence effectively deeming the injured person to be “wholly at fault”. The legislature could not have intended such a result.

53.Further, to cleave, the express alterative qualifiers from each other and apply them to the the phrase “at fault” as discrete constituents for the purposes of applying ss 3.11 and s 3.28 of the 2017 Act to single and multiple putative tortfeasor accidents, would not only do violence to the statutory language, it would undermine the cohesion of the determination posited by the provisions themselves. That is, the provision envisages contributory negligence can be apportioned to 100%: see eg. s 5S of the Civil Liability Act, but it cannot be without an alternative putative tortfeasor: see Axiak at [83] and [86], Davis at [50].

54.On this analysis the claimant is not “wholly at fault”, because he cannot be “at fault”, nor can his conduct be subjected to the apportionment analysis the provision expressly requires. 

55.If my analysis and conclusion in respect of this dispute discloses a lacuna in the legislative scheme designed to appropriate liability for injuries in motor accidents, and prejudice to parties results where only a single tortfeasor is involved in causing the accident, then it is for the legislature to remove that lacuna by legislation, not me as an administrative decision maker.

56.In Davis, Meagher JA (Leeming JA agreeing) observed that the approach stated in Axiak may require further consideration in a case where there has been some event, which results in the driver losing control of the vehicle or having to take evasive action that causes an accident or incident. However, in my view, this is not such a case.

57.For the reasons that follow, I am not persuaded that the accident could have been avoided if the claimant had been keeping a proper lookout. I am of the opinion that the claimant cannot be found to be at fault, as the broader generic meaning of that phrase would denote or when viewed through the prism of legal causation, to any extent.

58.I am not satisfied that the claimant’s or Mr Griffith’s photographs of the offending sign are, at all, an accurate representation of the sign at the time of the accident. The accident occurred on 8 April 2020 in the late evening. The claimant’s photos of the bent signpost taken on 13 April 2020 would appear to me to demonstrate that the signpost (as repreoduced below in Photo 1) is not immovably affixed to the median strip and could have been moved since the accident by other cars hitting it, so that it has rotated. Indeed, it could have been moved by the claimant’s own collision with it.  As I have noted above, the sign would appear to be much battered, by, I presume, other cars colliding with it.  

Photo1: Photo of poorly affixed sign

59.There is also a suggestion that the sign has been replaced by the RMS. The parties have not put any evidence before me, which would appear to support that submission.  I note however, that the photo depiction of the sign on Google Maps taken in April 2021 (Photo 2) would appear to support this submission.

Photo 2: Image on Google maps captured in April 2021

60.I am also mindful of the caution I must necessarily accord to my assessment of such photographs (see eg. Pledge v Roads & Traffic Authority [2004] HCA 13; 78 ALJR 572 and Anikin v Sierra [2004] HCA 64; 79 ALJR 452; 211 ALR 621), which reinforces my conclusion that I cannot confidently conclude to the necessary state of reasonable satisfaction that the photographs depict the signpost is as it was on the night of the accident.

61.Therefore, I am left with the uncontradicted evidence of the claimant, which I have no reason not to accept, and which I do accept. It supports the finding that the sign was protruding on to the roadway, at a low height, and that, from the claimant’s position in the driver's seat, he did not have the opportunity to see the sign in time to assess that he needed to take some action to avoid colliding with it.

62.The claimant’s photos of the sign taken at night time would suggest that that it was barely visible in those conditions.  On the basis of those photos, I would not expect a vehicle’s head lamps set to automatic, which are customarily designed to shine light to the left and not the right, to illuminate a sign on the median strip to the driver’s right. None of the photos with which I have been furnished, properly satisfy me that I should infer that the claimant was not paying reasonable attention to what was happening on and near the roadway (to the standard discussed in Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413) or that he was not otherwise driving in a safe manner. There is no evidence as to when the sign could have (if at all) been seen by a reosnable person excercising due care and skill so as to assess whether the claimant could reasonably have taken evasive action to avoid it. There is no other evidence before me, not based on photographs (which I consider to be inherently unreliable for the roasns I have discussed), to justify the conclusion that at that time he collided with the sign, the claimant was not keeping a proper lookout or otherwise driving in a safe manner.

63.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 …".

64.As it is the insurer which wishes to rely upon the existence of the condition of exclusion based on “fault” under s 3.11 of the 2017 Act, as it has interpreted it, this authority would appear to render incumbent upon it, the legal burden of persuading or proving that purported proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257.

65.For the reasons I have expressed, I am not satisfied it has discharged this burden in respect of its decision under s 3.11 of the 2017 Act and it therefore cannot refuse, further to s 3.11 of the 2017 Act, to pay the claimant’s statutory benefits.

Costs and disbursements

66.The claimant seeks costs. I allow the claimant’s costs in the amount of $1,760 inclusive of GST.

Conclusion

67.The insurer is not entitled to reduce the claimant's statutory benefits further to s 3.11 of the 2017 Act.

68.This determination takes effect on 8 April 2020.

69.The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,760 inclusive of GST.

Legislation

70.In making my decision I have considered the following legislation and guidelines:

•    The 2017 Act

• Civil Liability Act

B. K. Nolan

Member (Motor Accidents Division)

Personal Injury Commission