Al-Kes-Butrus v NRMA
[2021] NSWPIC 510
•19 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Al-Kes-Butrus v NRMA [2021] NSWPIC 510 |
| CLAIMANT: | Miri Al-Kes-Butrus |
| INSURER: | NRMA |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 19 October 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); Schedule 2, clause (3)(g) of the MAI Act; section 5R of the Civil Liability Act 2002; residential area – 50 kmph speed limit; insured driver made right-hand onto incorrect side of the road colliding with claimant pedestrian; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; insured driver in breach of Road Rules 2014; claimant wearing ear buds - no causal consequence in the motor accident; Held – no contributory negligence on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | My determination of the Miscellaneous claim is as follows: 1. For the purposes of s 3.38, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident. 2. Effective Date: This decision takes effect from 2 November 2020. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus GST. 4. A brief statement of my reasons is attached to this certificate |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause (3)(g) of the Motor Accident Injuries Act 2017 (the MAI Act). Is the insurer entitled to reduce the statutory benefits payable to the claimant in accordance with s 3.38 of the MAI Act for contributory negligence?
BACKGROUND
The claimant is a 31-year-old woman who suffered significant injuries in a motor accident on 2 May 2020. The accident occurred while she was attempting to cross the road at the intersection of Waterhouse Street and Roony Street, Abbotsbury. The claimant was struck by the insured vehicle when it made a right-hand turn into Waterhouse Street from Roony Street.
On 19 May 2020, the claimant made an application for payment of personal injury benefits.
On 19 June 2020, the insurer accepted liability for payment of statutory benefits for the first 26 weeks. These benefits included weekly payments for loss of income and payments for treatment and care.
On 21 August 2020, the insurer notified the claimant that it accepted liability to continue payment of statutory benefits after 26 weeks on the basis that those benefits are reduced by 25% for contributory negligence on the part of the claimant in the motor accident.
On 13 September 2020, the claimant sought an internal review of the insurer’s decision. On 2 October 2020, the insurer issued a determination affirming its original decision.
On 29 October 2020, the claimant made an application to the Dispute Resolution Service (DRS) seeking a review of the insurer’s review decision.
The application is now before to me for determination.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The Personal Injury Commission (the Commission) was established on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre- establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident, clause 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines 2017 (the Guidelines) continue to apply.
DETERMINATION ON THE PAPERS
At a teleconference conducted on 1 July 2021, the parties agreed that, considering the issues that remain in dispute and neither party’s credit was being challenged, I could proceed to determine the matter based on the documents before me.
In making my determination, I have considered the documents provided by the claimant in the application dated 29 October 2020 and the insurer’s reply dated 15 December 2020. These include:
(a)the Application for Personal Injury Benefits dated 19 May 2020;
(b)the Liability Notice for Benefits up to 26 weeks dated 19 June 2020;
(c)the Liability Notice for Benefits after 26 weeks dated 21 August 2020;
(d)the claimant’s application for internal review dated 13 September 2020;
(e)the insurer’s internal review certificate of determination and reasons dated 2 October 2020;
(f)the claimant’s submissions to the DRS dated 29 October 2020;
(g)the insurer’s submissions in reply to the DRS dated 15 December 2020;
(h)the NSW Police Force incident Report dated 21 July 2020;
(i)the NSW Ambulance Electronic Medical Record dated 2 May 2020;
(j)the Liverpool Hospital Discharge Referral dated 4 May 2020;
(k)the factual investigation report of Brooksight Investigations, dated 14 August 2020 which included the statement of the insured driver, the statement of the insured driver’s sister, a transcript of interview between John Bow with Leading Senior Constable Mitar Vitorovich, a schedule of photographs of the site of the accident and site diagrams, and
(l)the claimant Google satellite map depicting the site of accident, undated.
I am satisfied that there is sufficient information before me to determine the matter on the papers.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
·the MAI Act;
·Motor Accident Injuries Regulation 2017 (the Regulation);
·the Guidelines;
·Civil Liability Act 2002, and
·Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts are uncontroversial:
(a)the motor accident occurred at about 6.30pm on 2 May 2020 at the intersection of Waterhouse Street and Roony Avenue Abbotsbury;
(b)the claimant was walking down Roony Avenue and attempting to cross Waterhouse Street at its intersection with Roony Avenue;
(c)the insured vehicle was travelling on Roony Avenue behind the claimant’s direction of travel before it made a right-hand turn into Waterhouse Street;
(d)the speed limit was 50 kmph;
(e)the road surface was sealed and dry;
(f)it was dark;
(g)there were street lights on, and
(h)Waterhouse street is about 7.5 metres in width.
The claimant’s evidence
The claimant has described the circumstances of the motor accident on two occasions.
In her application for statutory benefits dated 19 May 2020, the claimant stated:
“I was at the street intersection of Rooney [sic] Ave and Waterhouse Street, Abbotsbury and I had started to cross Waterhouse Street towards Rooney [sic] Ave when the driver at fault struck me.”
The claimant was interviewed by the NSW Police Force at her home after she was released from hospital. In an interview with the insurer’s investigator, Mr Bow of Brookside Investigations on 8 August 2020, Leading Senior Constable Vitorovich read a statement made by the claimant and recorded in the Police notebook as follows:
“Around 6.30pm on the 2nd of May 2020, I – I went for a walk/run near my house. I was walking along Roony Avenue and was approaching Waterhouse Street.
I looked around and didn’t see any cars around me. I started to cross Waterhouse Street. I made two or three steps across the street when I was hit by a car on my left leg. As I got hit, I remember saying ‘what are you doing?’
I remember I got hit by the front light of the car. I don’t remember anything else after that. Later I remember I was in hospital doing scans. The next morning
I was told by a doctor I had two fractures in my head and one fracture to my right arm.”
The insured driver’s evidence
The insured driver has also described the circumstances of the motor accident on two occasions.
The insured driver was interviewed by the NSW Police Force at the scene of the accident. In the interview with the insurer’s investigator, Mr Bow on 8 August 2020, Leading Senior Constable Vitorovich read a statement made by the insured driver and recorded in the Police notebook as follows:
"I was turning right into Waterhouse Street, Abbotsbury. I had my seatbelt and headlights on. Once I turned, I saw a lady standing on the - on the.. She was standing on front of number 2 Waterhouse Street, Abbotsbury. The lady stepped onto - onto - sorry, the lady stepped out onto the had collided with the driver's side of the door. She had headphones."
The insured driver provided a statement to the insurer’s investigator, Mr Bow of Brookside Investigations on 16 July 2020. The insured driver said that she was on her way home from work in Minto. She said that at the time of the accident, it was dark. There were street lights on but they were far away from the intersection. She described the circumstances of the accident as follows:
“12.I turned right into Waterhouse Street. I had my indicator on. I had approached the intersection and I slowed down. There was no other traffic coming from the other direction, so I did not have to stop before making the turn.
13.I drove into Waterhouse Street from Rooney Avenue, I did not stop, but I had slowed down. I was going about 35 km/h. I had completed the turn which was about 1 house length from Rooney Avenue. I was facing up Waterhouse Street when a woman walked onto the road from my right. The woman walked into the front driver's side of my car, between the mud guard and the door. I can't remember how fast I was going when the woman hit my car. It may have been 30 or 40km/h.
14.The woman came out from my right. I had seen her as I was turning. I saw that she had earphones on. It was dark and the woman walked off the footpath on to the road and she walked into my car. She came out to the car and I could not avoid her. We were just into Waterhouse Street when it happened.”
The passenger
The insured driver’s sister was interviewed by the NSW Police Force at the scene of the accident. In the interview with the insurer’s investigator, Mr Bow on 8 August 2020, Senior Constable Vitorovich read a statement made by the insured driver’s sister to Police and recorded in the Police notebook as follows:
"Around 6:30pm on the 2nd of May, '20, I was sitting in the rear left seat in my sister's car going home from work. We drove down Roony [sic] Street and turned right onto Waterhouse Street. As we turned right, a female crossed onto the street and we hit her. I know it was a female as she had long hair. She was looking at her phone and had earphones as we hit her. We stopped straight away and went to see her. The female was trying to get up but we told her to sit down. A few people came to check on her and someone called the ambulance."
The Ambulance Report
The Ambulance Service of NSW arrived at of the scene of the accident by 6.44 pm. The Ambulance Electronic medical record provides the following case description:
“ct 30 yof on the road, mva v pedestrian [sic] oa- pt lylng on R lateral, responsive, multiple bystanders on scene including pt’s brother, sister and mother who ran to pt and were acting hysterical +++ vehicle, that hit pt was not on scene.cc – pedestrian [sic] hit by· car. cchx- per pt states she remembers being hit by a vehicle while crossing a street. a bystander stated that he saw a
?4wd turning at the stated location and has hit the pt at approx. 20-30kms/hr and that the pt went underneath the vehicle. bystander stated vehicle drove off – unsure of other details. Pt states she was amnesiac to events post being hit”.
The Police Report
The NSW Police Force attended the scene of the motor accident.
The NSW Police Report dated 20 July 2020 records the “Crash Summary Details” as follows:
“Around 6.30pm on the 2nd of May 2020 the pedestrian has crossed Waterhouse St when she was hit by a grey Nissan Gashqai which turned right into Waterhouse St. The Nissan has crossed onto the wrong side of the road when it turned on Waterhouse St.”
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a)the insurer accepts that the immediate cause of the collision was that the insured driver did not see the claimant. It accepts there was a departure from the requisite standard of care by the insured driver;
(b)the insured driver's failure to see the claimant was occasioned by her failure to keep a proper lookout. Had she seen the claimant she would have been in a position to sound her horn, flash her lights, slow down or take evasive action;
(c)that she did not do any of these things is reflective of the fact that she was unaware of the presence of the claimant notwithstanding that had she been attentive to the environs around her, she would have seen the claimant. There is no doubt that the insured driver was negligent. That is conceded;
(d)the insurer says however that the claimant did not take the relevant precaution, so as to take reasonable care for her own safety. She failed to keep a proper or adequate lookout for vehicles prior to crossing the road. Had she been looking to her left she would have seen the insured vehicle proceeding out of Rooney Avenue and driving toward her;
(e)just as the insured driver had an unimpeded vision of her, so too would the claimant have had an unimpeded vision of the insured driver. Just as the driver did not see the claimant prior to the accident, the claimant did not see the insured driver prior to the accident;
(f)the evidence confirms the claimant impacted with the front driver's side door of her car between the mudguard and the door. The claimant was not watching where she was going whilst crossing the street, thereby not seeing the insured vehicle approaching her. The claimant may well have been distracted by looking down at her phone and wearing earphones, and
(g)the claimant’s departure from the standard of care required of her in the interest of her own safety should be assessed in the order of 25%.
THE CLAIMANT’S SUBMISSIONS
The claimant submits that there should not be a finding of contributory negligence for the following reasons:
(a)exercising reasonable care for her safety, the claimant looked around in all directions before entering the roadway and/or attempting to cross Waterhouse street;
(b)a reasonable person in the claimant's position, given that she looked in all directions before crossing the roadway, should not be expected to mitigate the danger presented by a driver who crosses onto the wrong side of the roadway;
(c)in the circumstances, the claimant did all that a reasonable person, exercising reasonable care for their safety, would have taken in the circumstances;
(d)the insured driver alleges to have seen the claimant crossing the roadway and ought to have exercised vigilance, reasonable attention to all that was happening on or near the roadway that may have presented a source of danger;
(e)the insured driver's responsibility arising from her operation of a motor vehicle which has the potential to cause considerable harm if failed to be driven correctly is a heavy responsibility;
(f)had the insured driver operated her vehicle in a safe manner, the accident would not have occurred, and
(g)had the insured driver not been negligent in her manoeuvring of the vehicle and had she not crossed onto the wrong side of the roadway, the accident would not have occurred.
CONSIDERATION
The relevant legislation and legal principles
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
The insurer concedes that the insured driver owed a duty of care to the claimant, that she has breached that duty and that she is at fault in causing the motor accident.
However, the insurer alleges that the claimant was also at fault in the accident because she failed to take precaution for her own safety by not keeping a proper lookout before crossing the road. On that basis, the insurer has reduced payments of the claimant’s statutory benefits by 25% after six months from the date of the accident, for contributory negligence.
The claimant contends that she was not contributorily negligent in the accident.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
Section 5R(1) of the Civil Liability Act 2002 provides that the relevant principles for determining negligence also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2) goes on to provide that:
“(2) For that purpose—
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
McColl JA set out the proper approach to assessment of contributory negligence in
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [13]-[14]:
“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act …
The words ‘reasonable person in the position of that person’ in s 5R are equivalent to the words ‘a reasonable person in the plaintiff’s position’: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects ‘the expectation that, in general, people will take as much care for themselves as they expect others to take for them’: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70])
per Ipp JA (Giles JA and Hunt AJA agreeing).”
Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
“The making of an 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. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
Whether there is any contributory negligence by the claimant requires a determination of whether a reasonable person in the claimant’s position, would have crossed Waterhouse Street, when she did, knowing what she did or what she ought to have known at the time.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
Factual findings
Having considered the totality of the evidence, I make the following factual findings.
The claimant said that when she approached the intersection of Rooney Street and Waterhouse Street, she looked around and did not see any cars. She then started crossing Waterhouse Street and made two or three steps when she was hit by the insured vehicle. I accept that evidence. It is consistent with the photograph taken by the insured driver at the scene of the accident. It depicts the claimant lying on her back on the roadway close to the kerb nearest to the corner of 2 Waterhouse Street. It is consistent with the insured driver’s evidence that the claimant was told not to move from the position she was in after the accident.
More significantly, the above evidence suggests that at the point of impact, the insured driver was driving on the incorrect side of the road.
When interviewed by the Police at the scene of the accident, the insured driver said that she turned into Waterhouse Street and she had her headlights on. Once she turned, she saw the claimant standing in front of 2 Waterhouse Street. The claimant then “stepped out” and collided with the driver’s side of the door. That evidence is inconsistent with the evidence of the claimant who said that she was hit by the front light of the insured vehicle. The claimant’s evidence is consistent with the evidence of a bystander who stated to the Ambulance officers that he saw a 4WD turning at the stated location and it has hit the claimant at approximate 20 - 30kmph and that the claimant went underneath the vehicle.
In the statement she made on 16 July 2020, the insured driver again said that she had seen the claimant in front of 2 Waterhouse Street when she made the turn into Waterhouse Street but she did not have to stop, but slowed down and made the turn at about 35 kmph.
This evidence suggests that if the insured driver made a right-hand turn in this manner onto the incorrect side of the road, a reasonable person in the position of the claimant would not have had an opportunity to take precaution for his or her own safety.
If the insured driver had made the manoeuvre onto the correct side of the road, the claimant could have stopped in her path of travel to allow the insured vehicle to pass.
Rule 33(3) of the Road Rules relevantly provides:
“If there is no turn line indicating how the turn is required to be made, the driver must make the turn so the driver—
(a) passes as near as practicable to the right of the centre of the intersection, and
(b) turns into the left of the centre of the road the driver is entering unless the driver is entering a one-way road.”
The insured driver was also under an obligation to give way to the claimant. Rule 73(6) of the Road Rules relevantly provides:
“If the driver is turning right from the continuing road into the terminating road, the driver must give way to—
(a) any oncoming vehicle that is travelling through the intersection on the continuing road or turning left at the intersection, and
(b) any pedestrian who is crossing the terminating road at or near the intersection.”
The insured driver failed to give way to the claimant, notwithstanding evidence that she saw the claimant before the collision. The claimant did not have the same opportunity to see the insured driver because the insured driver was behind her until the insured driver commenced her turn. According to the insured driver there was no oncoming traffic, and she was able to turn without stopping. The insured driver then crossed onto the wrong side of the road, and this deprived the claimant of her only real opportunity to avoid the collision. The first the claimant knew of the impending collision was when she “was hit by the front light of the car”. Presumably this was the same light by which the insured driver observed the claimant’s earphones. In the circumstances, the claimant’s earphones had no causal consequence and I do not accept the insurer’s submission in that regard.
In the circumstances of this case, in accordance with s 5R of the Civil Liability Act 2002 and for the purposes of s 3.38 of the MAI Act, I find that there is no contributory negligence on the part of the claimant in the motor accident.
COSTS
The claimant was successful in this application.
There is no reason why the claimant should not be allowed her legal costs in the regulated amount.
I allow the claimant’s costs in the regulated amount of $1,710 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of s 3.38 of the MAI Act, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident.
The decision takes effect from: 2 November 2020.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,710 plus GST.
Maurice Castagnet
Member (Motor Accidents Division)
Personal Injury Commission
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