Allianz Australia Insurance Limited v Ren
[2024] NSWPIC 470
•27 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Allianz Australia Insurance Limited v Ren [2024] NSWPIC 470 |
| CLAIMANT: | Yuan Ren |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 27 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); sections 3.11 and 3.28; claim for statutory benefits; whether the motor accident was caused wholly or mostly by the fault of the claimant; claimant was injured as a passenger on a public bus when she fell to the floor on the bus; claimant was still standing trying to tap on her Opal card onto an Opal device when the driver of the bus braked heavily to avoid a collision with a vehicle that changed lanes; CCTV footage of the accident; Saleh v Allianz Australia Insurance Limited distinguished; Held – motor accident was not caused wholly or mostly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The finding of the assessment of this dispute is as follows:
|
STATEMENT OF REASONS
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a miscellaneous claim assessment under Schedule 2, cls (3)(d) and 3(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Yuan Ren, seeks a review of the insurer’s decision made under ss 3.11 and 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
BACKGROUND
The claimant is a 37-year-old woman who suffered injuries in a motor accident on 29 August 2022. The claimant was travelling as a passenger in the insured bus when she fell onto the floor of the bus.
On 30 September 2022, the claimant made an application to the insurer for payment of statutory benefits.
On 10 November 2022, the insurer accepted liability to make these payments for the first 26 weeks.
On 6 January 2023, the insurer notified the claimant that it declined liability for any payments beyond 26 weeks, on the basis that the claimant was wholly at fault in the accident.
On 1 February 2023, the claimant sought an internal review of the insurer’s decision. The insurer subsequently[1] issued a determination affirming its original decision.
[1] From the material before me, the exact date of the decision is not apparent.
On 30 May 2023, the claimant commenced these proceedings in the Personal Injury Commission (Commission) to resolve the dispute. The proceedings have been referred to me for determination.
DOCUMENTS CONSIDERED
I considered the following documents filed by the parties and produced to the Commission by third parties pursuant to Directions for Production:
(a) the clinical records of the Royal North Shore Hospital;
(b) the claimant’s application for personal injury benefits dated 30 September 2022;
(c) the insurer’s liability notice for benefits up to 26 weeks, dated 10 November 2022;
(d) the insurer’s liability notice for benefits after 26 weeks, dated 6 January 2023;
(e) the claimant’s submissions attached to the online portal application dated 30 May 2023;
(f) the insurer’s submissions dated 23 June 2023;
(g) the report of Allied Universal Compliance and Investigations to the insurer dated 25 September 2023, which attached a signed statement of the insured driver dated 25 September 2023 and photographs of the scene of the accident;
(h) documents produced to the Commission by NSW Ambulance and the NSW Police Force;
(i) documents produced by the insured bus company, Keolis Downer, which included an accident report form, six sets of CCTV footage captured at the time of the accident, and the Bus Operations Handbook, and
(j) a further set of CCTV footage (51 seconds) marked “Front Door” filed by the insurer.
LEGISLATION
In making my determination, I considered the following legislation and guidelines:
· the MAI Act;
· the Motor Accident Injuries Regulation 2017 (Regulation);
· the Motor Accident Guidelines, Version 9.1 (Guidelines), and
· the Civil Liability Act 2002 (Civil Liability Act).
EVIDENCE
NSW Ambulance
NSW Ambulance attended the scene of the accident. Their report recorded the following:
“…Pt[2] states she was standing, unable to hold onto anything when the bus driver came to a sudden stop, causing her to fall and, slide forward in a supine position and hit her head on the front end of the bus – hyperextending her head.”
[2] The patient or the claimant.
The claimant’s evidence
In her application for personal injury benefits dated 30 September 2022, the claimant described the circumstances of the accident in the following terms:
“I got onto the 144 Bus at Neutral Bay. Before I could sit down, the bus driver suddenly accelerated the bus then suddenly brake [sic]/decelerated the bus, causing me to fall down, sliding across the floor hitting back of my head to the front panel/wall of the bus (next to the front door/bus driver). I experienced severe pain in the head, neck and felt mid to lower back was pulled.”
In an interview with the NSW Police Force at the scene of the accident, a police notebook recorded that the claimant stated the following:
“- got on 144 Bus at watson st Bus stop Neutral Bay at about 1730hrs – As soon as I got on the bus attemping [sic] to get out my opal card the bus driver took off quickly in a western direction – I immediatly [sic] hit my head on the back wall of the front compartment of the bus. An unknown person assisted me up. The only details I provided to the bus driver was my first name.”
The claimant’s oral evidence may be summarised as follows:
(a) the claimant accepted that there was a seat available to her to sit after she boarded the bus, but she did not accept that there was sufficient time for her to sit down before the bus started to move because she was carrying a wet umbrella and a bag and she was still looking for her Opal card.
(b) She was standing (next to the seat) so that she can get quicker access to the Opal machine.
(c) The claimant said it was her duty to tap on the Opal card to pay her fare as soon as she boarded the bus because she believed that the fare would not register if tapping on was left too late.
(d) She said that she was looking for her Opal card for only a few seconds. The bus driver did not check whether she had tapped on and suddenly drove off.
(e) When it was put to her by Ms Allen that the accident would not have happened if she was sitting down, the claimant said even if she was sitting down, the way the bus driver pulled off and then braked, “the amount of force” involved would have caused her to bang her head against the panel in front of that seat “for sure”.
(f) The bus driver did not ask her to sit down before he drove off.
(g) When the bus driver suddenly drove off, the bus almost crashed into another vehicle.
The insured driver’s evidence
Following the accident, the insured driver called his employer, Keolis Downer. The details of the call were recorded by the Operations Control Centre as follows:
“Bus operator reported he had braked hard to avoid colliding with car changing lanes causing female passenger aged 35 years of age to fall and hit her head. Passenger conscious and alert. Ambulance was requested and attending along with North 25” Ambulance 1525. Passenger transported to RNSH for assessment. Event button activated. Form 360 to complete.”
In an accident report form dated 30 August 2022 submitted to Keolis Downer, the insured driver stated that the accident occurred on 29 August 2022 on his afternoon shift. At the time of the accident, he was travelling 10-15kmph. It was raining and the road was wet. He described the traffic conditions as “flowing”. He described the circumstances of the accident in the following terms:
“…hedding [sic] towards chatswood I then moved out of the wastons [sic] st bus stop. I then went to change lanes the driver decided to change lanes when I was in the process of changing lanes. I then had to put the brakes on quickly to avoid a [sic] accident the female passenger then fell backwards.”
In his statement to the insurer’s investigator dated 25 September 2023, the insured driver said the following:
“So, I was pulling out of the bus stop on Falcon Street, the far-left bus stop. Checked my blind spot as I’ve pulled out, I’ve pulled out safely and next minute I had a driver change lanes in front of me at the last minute, to go into Laycock Street. I had to put the brakes on heavy, the lady was not holding on whatsoever, she fell down, and slid and hit – slid towards the front of the bus and just hit her head on a handrail.”
He said that the vehicle that changed lanes into his path of travel was “cutting me off” and did not stop. In the accident report form, the insured driver drew the following diagram of the circumstances of the near collision with the other vehicle:
When asked by the investigator where was the claimant standing, the insured driver said:
“She was standing where the ticket machine, Opal card machine is here, so where the door is, a little bit further, right from the door just here, there’s an Opal machine, she was tapping on there and that’s where she didn’t hold on and that’s where she fell from”.
He said that the claimant was the last person to board the bus.
When asked by the investigator whether the claimant had swiped her Opal card, the insured driver said:
“…she was taking her time, I gave her a good [sic] at least 5 minutes then moved the bus, and then I had to get going very slowly, enough time for her to tap on and enough time for her to sit down and enough time for her to hold on, she didn’t do it”.
When asked by the investigator whether he saw the claimant fall, the insured driver said:
“On, it happened so fast, so all I saw was – I was looking at that, putting the brakes on heavy, checking to make sure – checking in the mirror and as I was doing that, by the time I was done checking the mirror – she was – she hit her head.”
The bus driver’s oral evidence at the assessment conference may be summarised as follows:
(a) he pulled away slowly, “extremely slow” and he looked for coming vehicles, he looked in his mirrors, he did a blind spot check. As he was driving off, picking up speed, a car changed lanes in front of him and he had to “put the brakes on heavy” to avoid colliding with rear of the car.
(b) He said that he was able to identify the registration number of the car.
(c) He was aware that the claimant was looking for her Opal card before he drove off and he was aware that she was taking a bit of time doing that.
(d) He was aware that the claimant was standing up but at the time he drove off, he was unaware that she was still standing up. He was looking in his mirrors and he was trying to focus on the road.
(e) He disagreed that it would have been reasonable to ask the claimant to sit down before he drove off.
The Bus Operations Handbook
In evidence was the “Bus Operations Handbook – think like a passenger” issued by the insured employer Keolis Downer to its drivers.[3] The purpose of the handbook is stated as follows:
“This handbook describes how Keolis Downer Northern Beaches employees are expected to carry out their duties in a safe and correct manner”.
[3] The document in evidence was the revised January 2022 edition.
Paragraph 5.3 of the handbook dealing with “Helping Customers” provides:
“As a Bus Operator, you can help customers by:
…
·giving them a reasonable opportunity to board the bus;
·monitoring and ensuring they are seated or have a firm hold before departing the bus stop;
…”
Paragraph 12 of the handbook deals with “Safe Bus Operations”. Paragraph 12.3.3 dealing with “Leaving the Bus Stop” provides:
“Bus Operators must:
…
· Ensure customers are seated or have a firm hold;
· Accelerate smoothly and cancel indicator when in new lane position (or when traffic speed reached).
…”
The CCTV footage
In evidence were six sets of CCTV video footage produced by the insured bus company, Keolis Downer. The relevant footage captured images of the claimant entering the insured bus, her fall on the bus and the events shortly thereafter.
In evidence was also a set of CCTV video footage titled “Front door”. This set is of 51 seconds duration and it was filed separately by the insurer and referred to in the insurer’s submissions. It appears that this video is a reproduced part of the footage produced by insured bus company in the set entitled, “Exit-Rear Dr” which is of 15 minutes duration.
Both parties have viewed the footage and have provided submissions to the Commission on the evidence.
I have viewed the footage. I have made certain findings of fact arising from my observations of this evidence and my findings are noted later in these reasons.
THE CLAIMANT’S SUBMISSIONS
The claimant’s submissions may be summarised as follows:
(a) it was very wet weather at the time of the accident and therefore she was carrying a very wet umbrella in one hand. The bus driver did not wait for her to tap her Opal card.
(b) The bus driver did not check his mirror or pay attention to the fact that she had not yet tapped her Opal card before moving the bus.
(c) The bus driver did not ask her to sit down before moving the bus.
(d) The bus driver started moving the bus almost immediately after she boarded the bus and accelerated almost immediately after she got onto the bus, at a “speed that is faster than normal [in] dry weather conditions” knowing that it was wet weather.
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) the CCTV footage is incompatible with the claimant’s contemporaneous reporting of the accident and that she was unable to sit or hold on to anything at the time of the accident.
(b) The CCTV footage demonstrates between the claimant entering the bus and falling, she had approximately 24 seconds to sit down, and 10 seconds from the point at which she stood at the vacant seat to the time of falling. The insurer submits this was sufficient time for a reasonable person to sit down or utilise the available railing for safety and balance.
(c) The insurer submits a reasonable person in the claimant’s position ought to have known that the conditions of the bus were wet and slippery (as is conceded by the claimant) and that the bus was going to depart from the kerb after picking up passengers.
(d) It was foreseeable the bus would travel once all passengers had boarded and that a reasonable person would have promptly become seated or held onto any of the available railings to stabilise themselves, particularly noting the slippery conditions inside the bus and the claimant’s submission she is a regular bus user.
(e) Whilst the insured driver owed the claimant a duty of care as a passenger on a public bus, there is no evidence indicating the driver breached the duty of care owed nor has the claimant demonstrated any negligence on the part of the insured driver.
(f) There is no evidence of the bus driver braking suddenly or harshly. Even if was conceded that the bus had to brake harshly to avoid a vehicle changing lanes, that would be an ordinary occurrence and the bus driver had a duty of care to all of his passengers to take action to avoid a collision.
(g) The CCTV footage captures the motion of the bus and it is consistent with the normal driving and operation of a bus and that other than the claimant who was not holding on, all passengers travelling on the vehicle were unaffected by the driving of the vehicle, as is clear on any viewing of the CCTV footage.
(h) A reasonable person with the claimant’s experience of travelling on a bus in the conditions would have taken care for their own safety by sitting down as expeditiously as possible or in the alternative, held onto something to ensure their own safety.
(i) If the claimant was holding on or seated safely, she would not have fallen and suffered injury. She was therefore wholly at fault for causing her injury because it was because of her actions and her actions alone that led to the injury.
(j) The member would not accept the claimant’s evidence that she did not have enough time to occupy the seat that was available and be placed in a safe position before the bus accelerated.
(k) It could not be accepted that a bus driver has an obligation to instruct an adult who clearly knows what would occur, that a bus is to depart from a stationary bus stop and to be required to be told by the driver of that bus that she should sit down before he alights or that she should be afforded any more time to sit down in the circumstances.
(l) In an analogous decision issued by Member Cassidy in Saleh v Allianz Australia Insurance Limited [2022] NSWPIC 97, (Saleh) it was found the claimant was wholly at fault for standing on a bus and not holding onto any support when the bus braked causing her to fall. The Member did not find any fault on the part of bus driver as she accepted that "there is no evidence of the bus driver braking suddenly or harshly". The Member found that "had [the claimant] held onto the available parts of the bus as she stood and moved up the aisle, as she did on previous occasions, it is likely she would not have fallen."
THE RELEVANT LEGISLATION
Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he or she was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.[4]
[4] The insurer’s decision was made in accordance with the applicable provisions of the MAI Act at the relevant time.
At the end of that period, in reliance on ss 3.11 and 3.28 of the MAI Act, the insurer ceased paying those benefits.
At the relevant time, ss 3.11(1)(a) and 3.28 (1)(a) of the MAI Act provided that an injured person is not entitled to statutory benefits of weekly payments and treatment and care expenses incurred more than 26 weeks[5] after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
[5] For motor accidents occurring on and after 1 April 2023, the MAI Act now provides that the relevant period is 52 weeks instead of 26 weeks. (See the Motor Accident Injuries Amendment Act 2022.)
Sections 3.11(2) and 3.28 (2) provide that a motor accident was caused mostly by the fault of the claimant if the contributory negligence of the claimant in relation to the motor accident was greater than 61%.
In this case, the insurer’s decision was made pursuant to ss 3.11(1)(a) and 3.28 (1)(a) of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, s 5B(1) of the Civil Liability Act provides that a person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm, and
(d) the social utility of the activity that creates the risk of harm.
LEGAL PRINCIPLES – DRIVER’S DUTY OF CARE
The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question 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 response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. 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: s 5B(1).
[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'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
CONSIDERATION
Findings of fact
Having considered the whole of the evidence, including my observations of the CCTV video footage, I make the following findings of fact:
(a) the claimant boarded the insured bus on 29 August 2022 at the Watson Street bus stop at Neutral Bay at about 5.30pm. It was raining. As she boarded other passengers alighted.
(b) The claimant was the last person to board the bus.
(c) After the claimant boarded the bus, she was the only passenger travelling in the front of the bus.
(d) When boarding the bus, the claimant was carrying a closed retractable umbrella and a shoulder handbag.
(e) The claimant stood before the insured driver looking in her handbag for a moment. I accept her evidence that she was looking for her Opal card in the handbag.
(f) The claimant then moved towards the first seat on the bus adjacent to the insured driver’s seat. She placed her handbag and umbrella on the seat and continued to look for her Opal card in the handbag.
(g) Where the claimant stood near the front seat, there was an Opal card tapping device behind her on the other side of the bus aisle.
(h) While the claimant was still standing looking for her Opal card, the bus started to move. Moments later, the claimant fell to the floor of the bus, hitting her head against the front panel of the bus.
(i) At the time of her fall, the insured bus driver braked heavily to avoid a collision with a vehicle that changed lanes into the path of travel of the bus.
The actions of the claimant
The insurer submitted that the CCTV footage is incompatible with the claimant’s contemporaneous reporting of the accident and that she was unable to sit or hold on to anything at the time of the accident.
I do not accept this submission. There is no direct evidence from the claimant saying that she was unable to sit or hold on to anything at the time of the accident. The claimant’s evidence, which I accept, is that after boarding the bus and before she could sit down, and while she was still looking for her Opal Card to tap on, the bus driver drove off. This evidence is also consistent with my observations of the CCTV footage.
The insurer submitted that the CCTV footage demonstrates between the claimant entering the bus and falling, she had approximately 24 seconds to sit down, and 10 seconds from the point at which she stood at the vacant seat to the time of falling. On that basis, the insurer submitted, this was sufficient time for a reasonable person to sit down or utilise the available railing for safety and balance.
I do not accept this submission. Firstly, the submission contradicts the insurer’s own observation of the CCTV footage which is outlined in a chronology in paragraph 6 of the insurer’s submission dated 23 June 2023 (R2). The chronology suggests that the time that elapsed between the claimant boarding the bus and her fall, was about 15 seconds. From my own observation of the CCTV footage, the elapsed time period was about 15 seconds.
The insurer submitted that a reasonable person in the claimant’s position ought to have known that the bus was going to depart from the kerb after picking up passengers and knowing that the conditions of the bus were wet and slippery, a reasonable person would have promptly become seated or held onto any of the available railings to stabilise themselves.
It is apparent from the claimant’s evidence that she intended to occupy the seat closest to her as soon as she was able to tap on. She said that it was her duty to tap on and lawfully pay her fare before she sat down. There is no evidence to suggest that while she was trying to do so, she slipped and fell on a wet and slippery floor of the bus.
The actions of the bus driver
The insurer submitted that there is no evidence of the bus driver braking suddenly or harshly and that the CCTV footage captures the motion of the bus which is consistent with the normal driving and operation of a bus.
I do not accept that submission. It is contrary to the direct evidence of the insured bus driver. His evidence, which I accept, is that he had “to put the brakes on heavy” and “put the brakes on quickly” to avoid a collision with another vehicle and as he did so, the claimant fell. In accepting that evidence, I find that the cause of the plaintiff’s fall was the heavy braking of the bus by the insured driver.
The insurer acknowledges that the insured driver owed the claimant a duty of care as a passenger on the insured bus. However, the insurer submitted that there is no evidence indicating the driver breached that duty nor has the claimant demonstrated any negligence on the part of the insured bus driver.
The insurer submitted that even if was conceded that the bus had to brake harshly to avoid a vehicle changing lanes, that would be an ordinary occurrence, and the bus driver had a duty of care to all his passengers to take action to avoid a collision. It could not be accepted that a bus driver has an obligation to instruct an adult passenger who ought to know what would occur when a bus departs from a stationary bus stop and to be required to be told by the driver that she should sit down before he departs or that she should be afforded any more time to sit down in the circumstances.
I accept that the duty of the insured bus driver is to take reasonable care for the safety of all his passengers and that includes the claimant.
The insured bus driver’s evidence is that before he drove off, he was aware that the claimant was standing near the Opal device, looking for her Opal card to tap on. According to his statement to the investigators, he was also aware that the claimant was standing up at the time that he drove off.
The insured bus driver’s oral evidence, which I do not accept, is that he was not aware that the claimant was still standing up when he drove off because he was looking in his mirrors and focusing on the road. Given the proximity of the claimant to the driver’s seat and his view in the rear vision mirror, I consider that the insured bus driver would have been aware that the claimant was still standing when he drove off.
Saleh
In its submissions the insurer referred to the case of Saleh as an analogous decision where the Member found the claimant was wholly at fault for standing on a bus and not holding onto any support when the bus braked causing her to fall. Every case turns on its facts. The only analogy that might be drawn between the two cases is that they both involved a claimant travelling on a public bus. In Saleh, the claimant was not standing trying to tap on her Opal card after boarding the bus. Rather, the finding of fact was the claimant stood up from her seat to alight the bus before the bus came to a complete stop and while standing, she did not hold on to anything as she moved down the aisle of the bus. The Member found there was no evidence of heavy braking by the bus driver causing the accident.
Findings
The insured driver operated under a system where passengers had to swipe their cards on the Opal card device after boarding the bus.
That the claimant was burdened with an umbrella and a shoulder handbag through which she was rummaging for her Opal card was apparent to the driver. According to his statement to investigators, he was aware of where the claimant was standing and that she was not holding on whatsoever. The claimant was in close proximity to the insured driver and was the only passenger in the front section of the bus.
In these circumstances and where heavy braking is required to avoid collision with other vehicles in traffic would be an ordinary occurrence, the insured bus driver ought to have known the risk of injury to the claimant and that the risk was not insignificant. In the circumstances, a reasonable driver would have taken precautions by monitoring and ensuring the claimant was seated or had a firm hold before departing the bus stop.
The Bus Operations Handbook sensibly provided that drivers ensure that passengers are seated or have a firm hold before departing the bus stop.
Had the driver complied with the Handbook, the accident would not have happened.
In the circumstances of this case, and for the purposes of ss 3.11 and 3.28 of the MAI Act, I find that the claimant was not wholly or mostly at fault for the motor accident.
CONCLUSION
For the purposes of s 3.11 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the claimant.
For the purposes of s 3.28 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the claimant.
0
5
0