Anderson v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 564
•14 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Anderson v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 564 |
| Claimant: | Elizabeth Anderson |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 14 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; denial of liability after 26 weeks on basis that claimant wholly or mostly at fault; claimant driving car on General Holmes Drive when she lost control of her car; insurer conceded claimant lost control due to pothole in the road; insurer said claimant wholly at fault or mostly at fault; claimant travelling at 60 km/hr in a 60 km/hr zone merging from lane 2 to lane 3 as the vehicle in front (a large tanker) merged from lane 3 to lane 2; claimant said the vehicle in front covered the pothole and prevented her from taking action to avoid it; Held – claimant not wholly at fault as accident caused by state of the roadway; claimant not mostly at fault because she was not speeding and keeping a proper lookout and driving with the flow of traffic. |
| determinations made: | 1. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. As the claimant is not legally represented, there is no order as to costs. |
STATEMENT OF REASONS
INTRODUCTION
On 19 April 2022, Elizabeth Anderson was driving on General Holmes Drive when she lost control of her car and drove into a truck and a wall.
On or about 22 April 2022, Ms Anderson made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against NRMA, her own third-party insurer[1]. On 30 May 2022, NRMA accepted liability to pay benefits and did so for the first 26 weeks after the accident[2].
[1] Document R1 in the insurer’s bundle.
[2] Document R3 in the insurer’s bundle.
On 22 July 2022 NRMA wrote to Ms Anderson denying liability to pay any further benefits on the basis she was “wholly at fault” for causing the accident[3]. Ms Anderson sought an internal review of that decision on 29 July 2022, and on 9 August 2022 NRMA’s internal reviewer affirmed the original decision[4].
[3] Document R4 in the insurer’s bundle.
[4] The request for internal review is document R5 in the insurer’s bundle and the internal review decision is document R6.
On 5 September 2022, Ms Anderson commenced proceedings in the Personal Injury Commission (the Commission) and the proceedings have been allocated to me for assessment.
I held a teleconference in this matter and asked Ms Anderson some questions as did the insurer’s representative. The parties agreed I should determine the dispute based on the documentary evidence before me and the oral evidence given by Ms Anderson.
LEGISLATIVE FRAMEWORK
Liability for benefits beyond 26 weeks
The MAI Act provides a scheme of compulsory insurance for all NSW registered motor vehicles. It also provides a scheme of benefits and lump sum compensation for those killed or injured on NSW roads.
Part 3 of the MAI Act establishes a scheme of statutory income support and treatment and care benefits for almost all persons killed or injured in a motor accident on NSW roads on or after 1 December 2017[5].
[5] There are some disentitling provisions - a person who has a workers compensation claim (s 3.35) or someone charged with or convicted of a serious driving offence (s 3.37) is not entitled to any benefits at all.
Section 3.1 provides that statutory benefits are payable regardless of whether anyone was at fault and even if the injured person was the person at fault. After the first 26 weeks, the MAI Act says that an injured person is not entitled to benefits if they only have minor injuries[6] or if “the motor accident was caused wholly or mostly by the fault of the person”[7]. For an injured person to be “mostly at fault”’ there must be a finding of contributory negligence on their part of greater than 61%[8].
[6] Within the definition contained in section 1.6.
[7] Section 3.11(1) for weekly income support payments and section 3.28(1) for treatment and care benefits.
[8] Section 3.11(2) and s 3.28(2).
Ms Anderson sustained serious injuries[9] in the accident including a fracture in her lower back and a right wrist fracture. There is therefore no issue about whether her injuries falling outside the definition of minor injuries in s 1.6 of the MAI Act.
[9] Fractured pelvis, compound fracture of the left leg, broken kneecap, split lip and broken tooth and soft tissue injury to the left calf requiring skin graft.
Jurisdiction
Ms Anderson referred her dispute with NRMA to the Commission for determination.
Schedule 2 to the MAI Act, cl 3 provides a list of miscellaneous claims assessments matters. Sub-clauses (d), (e) and (n) combined provide the Commission with power to determine the disputes about whether the claimant’s accident was caused wholly by her fault or mostly by her fault.
Submissions
Ms Anderson does not have a lawyer representing her in these proceedings however she has submitted two documents providing her arguments concerning the evidence and the cause of the accident[10]. As they are presented in the form of comments and critiques of the insurer’s submissions, I will set out chronologically the communication between the parties on the issue of fault.
[10] The first is identified as document A1 is the Commission’s electronic file, dated 5 September 2022 and is described as “My dispute submission in response to insurer’s review decision. The second is entitled “Submissions - reply to NRMA to the Personal Injury Commission and is dated 8 October 2022.
Insurer’s original liability decision
The insurer’s liability notice dated 22 July 2022 denies liability because:
“[You] are wholly at fault for your motor vehicle accident and have sustained a non-minor injury. This decision is based on the investigations completed by NRMA confirming you failed to maintain proper control of your vehicle causing you to collide into the wall and truck.”
Insurer’s internal review decision
The insurer says that the claimant lost control of her car and collided with a concrete barrier and truck travelling in the middle lane.
NRMA suggests there are inconsistencies in the claimant’s version of events suggesting she may have lost control due to a pothole as suggested by police or because she was travelling too close to the truck.
NRMA also says the witness has been inconsistent saying to the police that
Ms Anderson’s car was in lane three but saying to the investigator she was in lane two.
The author states that the police found the claimant responsible for the accident.
NRMA’s internal reviewer then says:
“[30.] According to Vairy v Wong Shire Council [2005] HCA 34, 59 ALJR 492, the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case. It follows that the risk of harm was foreseeable and a reasonable person in your position ought to have ascertained and exercised reasonable caution in keeping a safe and proper lookout and distance by listening, looking and observing to take any appropriate steps to correct any change circumstances
[31.] I find that you failed to keep control of your vehicle and failed to keep a safe and proper lookout. Accordingly, I find you wholly at fault for the MVA and your injuries.”
Claimant’s initial submissions
The claimant says her accident is a no-fault accident within the meaning of Part 5 of the MAI Act.
The claimant says she reduced her speed from 70 kmph to 60 kmph as she explained in her claim form and that the police did not hold her responsible for the accident. She notes that in the investigator’s statement from the police officer, he said the police formed the view the accident was caused by the state of the road and in particular a pothole.
Ms Anderson had asked the attending police officer, when he interviewed her, what had caused the accident and he explained the force of her hitting the pothole “which was a considerably sized one” pushed her into the barrier.
The claimant did not see exactly what happened because after she felt the bang at the back of her car her head went down.
Neither of the witnesses saw her hitting the pothole but only saw what happened after she had lost control of her car.
NRMA’s internal reviewer surmised that the accident could have occurred due to the pothole or because she was travelling too close to the truck. Ms Anderson says there is no evidence of her travelling too close to the truck.
The claimant denies any inconsistencies in her evidence and says the inconsistency in the witness’s statement might be explained by the lapse of time between the version given to the police (on the day of the accident) and the version given to the insurer’s investigator (two months later).
Ms Anderson agrees she must take reasonable care for her own safety when driving and says she is very careful to observe road signs and traffic around her. She says she kept an eye on her surroundings and was keeping a safe distance before safely merging from lane two to lane three.
She rejects any suggestion she was at fault and repeats her view that her accident is a no-fault accident.
She also notes that “on 29th May 2021, Constable Gattas informed me that the Council promptly repaired the pothole responsible for the MVA”.
Insurer’s submissions to the Commission
After providing a chronology and citing the relevant legislation, the insurer described the vehicles involved, the roadway and the conditions noting that the speed limit is usually 70 kmph but was, on the day 60 kmph. Traffic flow was said to be heavy.
The NRMA then sets out at length, the available evidence.
NRMA says:
(a) the claimant is wholly at fault for “failing to take account of the topography of the roadway and failing to safely manoeuvre and control her vehicle accordingly”;
(b) had she been alert and keeping a proper lookout she would have recognised the hazard on the roadway, reacted to it and avoided the accident;
(c) the claimant departed from the standard of care of a reasonable driver and that a prudent driver would have been alert to immediate dangers, potential periods and would have exercised “additional due care” and taken precautions to avoid the accident, and
(d) motorists have a responsibility to look out for hazards such as potholes and drive appropriately.
NRMA says at [41] that the claimant was negligent because she:
(a) failed to keep an alert and proper lookout for hazards on the road;
(b) failed to take appropriate evasive action to avoid hazards on the road;
(c) failed to drive in a safe manner;
(d) failed to control her vehicle so as to avoid injury;
(e) failed to take any or any reasonable care for her own safety, and
(f) failed to remain sufficiently vigilant so that she could react appropriately.
Finally, the insurer refers to the case of Manley v Alexander[11] and quotes the majority of the High Court:
“... the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
[11] [2005] HCA 79.
Claimant’s submissions responding to insurer’s submissions
The claimant says, “when taking into account the timing, distance and speed together with the events leading up to how the MVA unfolded, and the versions of the witness and truck driver it comes clear as to how the pothole was involved”.
Ms Anderson notes that she was merging from lane two to lane three at the same time as the truck ahead of her was merging from lane three to lane two. She said she had been confused about the lanes because General Holmes drive is four lanes wide in parts and three lanes wide in other parts. She is confident having reviewed the aerial photographs that she was merging from lane two to lane three before the accident.
She surmises that as she was merging, she hit the pothole. She acknowledges she did not see the pothole and suggests she did not see it because it was hidden from view by the large truck ahead of her as it was merging from lane three to lane two.
She says she did not depart from a reasonable standard of care and “there were no immediate dangers and potential perils present in order for me to exercise additional care and take precautions so as to avoid the accident”. She denies being negligent, says she is not wholly at fault and that her accident was a no-fault accident within the meaning of Chapter 5.
Review of the Evidence
First responders
The police report was created on 19 April 2022 by Constable Max Gattas. He records:
(a) the accident occurred between 9:15 and 10:30 am on General Holmes Drive which is a Freeway / Motorway;
(b) the accident occurred before the Mill Pond Road intersection;
(c) the road was straight, level, sealed and dry;
(d) the usual speed limit is 80 kmph;
(e) on page 3 of the report under accident unit 1 (Ms Anderson’s vehicle) in answer to the question “Was Unit responsible?” the report says “Y” for yes;
(f) the speed of Ms Anderson’s vehicle was said to be 80 kmph before the accident, and
(g)
the other vehicle (unit 2) was an ACT registered rigid tanker driven by
Mr Bradley at 80 kmph said not to be responsible.
The crash summary is:
“VEH1 has been driving in lane 2 of 2 when the westbound on General Holmes Drive, Mascot. 30m before the cross of Mill Pond Street, Mascot and General Holmes Drive, VEH1 has lost control and collided with the offside barrier of the road, causing the vehicle to spin clockwise. The rear of VEH1 has collided with offside wheel guard of VEH2, causing minimal damage. Both VEHs came to a stop and emergency services were called due to DRIV1 being trapped due to the damage caused to VEH1.”
Claimant’s evidence
In her claim form, Ms Anderson says:
“I indicated right and checked blind spot at right mirror and over shoulder. As I proceeded into the right lane I felt and heard a very loud bang and then the car felt like it was slamming into something a number of times before coming to a stop.
I remember I switched from 70 kmph to 60 kmph as per sign prior to accident.”
In her statement to the police, Ms Anderson says:
“I was driving on GHD and past the tunnel. I saw it was turning to a 60 km per hour zone. I started to merge into the right-hand lane when I felt an impact to the rear of the car. I remember feeling my car collide multiple times like a dodgem car however I don’t recall seeing anything during the accident. I don’t remember being hit by another vehicle or hitting another vehicle with my car.”
In her statement to the investigators given on 17 May 2022, Ms Anderson said:
(a) General Holmes Drive is a main road and at the time of the accident, traffic was heavy;
(b) the road is bitumen “there are potholes everywhere at the moment because of all the rain we have had over the summer”;
(c) she says there are four lanes and lanes that merge from the M5 and Grand Parade and that the speed limit is usually 70 kmph but the illuminated variable signs had reduced the speed limit to 60 kmph;
(d) on the day of the accident, she left home to attend a dentist appointment and had been driving for about 10 minutes;
(e) she was not distracted, was not using her phone and did not have the radio on;
(f) she is familiar with the road and was in lane two of four and was intending to turn right (at Botany Road) once she had passed the heavy traffic and trucks turning right into Foreshore Road;
(g) she moved past the trucks turning right in the far lane, merged into lane three safely and she was in flowing traffic and she travelled at the speed of the traffic, and
(h) she indicated checked behind her and was intending to move over and as she did she felt a big bang.
The claimant then goes into a great amount of detail about the movement of the car and her body and her injuries and her rescue and treatment. She then says:
(a) she did not know what hit her, but she thought she had been hit from behind;
(b) she did not speak to the police at the scene but she saw Constable Gattas at the police station. They asked her if she saw any potholes and what happened, and
(c) she says no action has been taken against her.
The claimant said to me at the preliminary conference that she made sure she travelled at the speed in accordance with the variable speed sign but may have been going slower than 60 kmph on the basis she was driving at the same pace as the witness who says he was travelling at 55-60 kmph.
The claimant said she did not know how big or small the pothole was because she did not see it before the accident. She thinks it is in the same vicinity as the suspected pothole the outline of which can be seen in the photographs taken by the investigator. She believed she missed seeing it because the truck was covering it.
Ms Anderson confirmed that she was merging from lane two to lane three because she needed to go to Maroubra. She said the truck was ahead of her and merged from lane three into lane two.
M & A investigation report
NRMA retained an investigator to attend the scene and interview witnesses.
The investigator confirmed the speed limit was 70 kmph, that there are low-level concrete barriers on either side of the road and there was a pothole in the road near where the accident happened. The investigator identified a CCTV camera but noted it was a live traffic monitoring camera and not recording camera.
The investigator interviewed Constable Gattas and notes that it was the opinion the claimant lost control when she hit the pothole. His statement includes:
(a) the claimant’s statement (see paragraph 41 of these reasons);
(b) a statement from the driver of the truck, Mr Bradley. There is no mention of his speed and he was driving a tanker[12]. He says he was in the right-hand lane then merged into the middle lane and then heard the screech of tyres, looked in his left mirror and saw nothing then hear a big bang and looked in this right mirror and saw Ms Anderson’s car on its side between the truck and the concrete barrier, and
(c) a statement from the witness who saw the claimant’s vehicle in the far-right lane, colliding with the wall, bouncing into the truck, then bouncing off the truck and into the wall before coming to rest on its right hand side.
[12] The driver refers to there being a second trailer which suggests the vehicle may have been a double tanker.
When asked what the cause of the accident was, Constable Gattas said:
“I believe it to be a pothole. We looked at where the Subaru impacted the wall. We saw that there were tire marks / trail leading from the pothole to the concrete barrier. The barrier had paint scratches matching vehicle 1 on it where vehicle 1 collided with the wall or barrier. This is consistent with the witness and truck driver, … Bradley.”
There is no need to recount all the statement of the witness taken by the investigator as he did not see what caused the claimant to lose control of her vehicle. He does say he was in the far-right lane (lane three) two vehicles behind the claimant. He says the truck was in lane two. He says he was travelling at 55 – 60 kmph. He said the truck driver spoke with him afterwards and said he was driving straight and had no idea what had happened.
There are a number of photographs which show a “suspected” pothole which the investigator has drawn on a diagram to the right of the dividing line between lanes two and three.
COnsideration of the Issues
Does Chapter 5 apply?
Ms Anderson has said on several occasions that her accident is a no-fault accident within the meaning of Chapter 5 of the MAI Act.
Chapter 5 has been recently amended to remove all references to claims for statutory benefits[13]. Chapter 5 now applies only to claims for damages and is therefore not relevant to Ms Anderson’s claim.
[13] The Motor Accidents and Workers Compensation Legislation Amendment Act 2022 was assented to on 16 June 2022 and applies to accidents that occurred before that date, claims made before that date and proceedings pending before that date.
Did the police find Ms Anderson at fault?
The police did not witness the accident. The police report is a document comprised of data entries answering a form with questions and is based on information provided to the police by those involved in the accident, witnesses and their own investigations. It is completed for the purposes of recording an event and determining whether criminal action is to be taken against a person. The findings in the police report are not binding on me and do not determine the issue of “fault” in a motor accident matter.
The police report does indicate at page 3 that Ms Anderson’s vehicle was the vehicle “responsible” however the police have clearly formed the view the pothole was the cause of Ms Anderson losing control and it is noteworthy they have taken no action against her.
Was Ms Anderson wholly at fault?
In a motor accident where the claimant is one of two or more drivers, a starting point in determining whether the claimant is wholly at fault would be to consider whether one of the other drivers was at fault, that is whether another driver was negligent. If there is some other driver whose negligence or fault caused the accident, then the claimant cannot be wholly at fault.
In Ms Anderson’s case there is no other driver or vehicle whose use or operation of their vehicle caused the accident. Mr Bradley’s tanker was caught up in the aftermath but had nothing to do with why this accident occurred.
In an accident where there is no other driver whose use or operation of their vehicle caused the accident, the starting point in determining whether the claimant is wholly at fault might be to ask whether there is anything, other than the way the claimant was driving, that caused the accident. If there is something else that caused the accident, then again, the claimant cannot be wholly at fault.
The insurer has conceded that the cause of Ms Anderson’s accident was the pothole.
Having read all the material and heard from the claimant I am satisfied that
Ms Anderson’s accident was caused by her losing control of her car and the cause of that was the presence of the pothole in the road.I am therefore satisfied that the accident was not caused wholly by the fault of
Ms Anderson because the accident occurred on a man-made surface (the road) and the cause of the accident was a defect in that man-made surface for which she was not responsible.
Is the claimant mostly at fault?
In determining whether the claimant is mostly at fault, I must consider whether there is any contributory negligence on her part. If there is, and I assess that the degree of her contributory negligence is more than 61%, then Ms Anderson must be found mostly at fault.
Section 5R of the Civil Liability Act 2002 (the CL Act) applies when considering whether there is any contributory negligence. That section specifically provides that the standard to be applied in determining whether there is contributory negligence or not is that of a reasonable person in the position of Ms Anderson on the basis of what she knew or ought to have known at the time.
The insurer’s submissions raise a number of arguments which fall into the following categories:
(a) failing to drive safely;
(b) failing to control her vehicle;
(c) failing to keep a proper lookout, remain vigilant and avoid the pothole, and
(d) failing to take reasonable care.
Did Ms Anderson fail to drive safely?
The insurer abandoned its earlier argument that the claimant was travelling too close to the truck driven by Mr Bradley.
The claimant was not challenged about the speed she was travelling. Despite the police report saying she was driving at 80 kmph there is sufficient evidence from the claimant and the witness to suggest she was driving at or below the speed limit
(60 kmph). I accept she was travelling at no more than 60 kmph.
The claimant says the traffic was heavy, the truck driver suggests it was “pretty quiet”. The accident occurred at about 9.15 am which in my view is after peak hour and the claimant’s evidence is that there was a flow of traffic. I accept the claimant’s evidence as to the state of the traffic.
The claimant’s unchallenged evidence was that she was travelling in lane two merging into lane three after Foreshore Road and in order to turn right towards Maroubra. She says she checked her mirrors and blind spot before merging which was also not challenged.
There is no evidence as to how far behind the truck she was travelling but she says she was merging into lane three as he was merging into lane two and the witness says she was behind the truck and he was ahead of her.
There is no evidence to support the insurer’s argument that the claimant was not driving safely. She was driving within the speed limits, in the flow of traffic and merging from one lane to another with care.
Did Ms Anderson fail to control her vehicle?
Ms Anderson had no idea how the accident happened until the police told her about the pothole. She said she felt what she thought was a hit from behind and then lost control.
There is no expert or other evidence before me to suggest that she should have been able to maintain control of her vehicle after she hit the pothole and I therefore reject this argument from the insurer.
Was the claimant keeping a proper lookout?
The police have provided evidence as to the existence of the pothole.
There is no evidence from the police about the size of the pothole or its depth. The claimant says[14] that Constable Gattas told her the pothole was a “considerable” size.
[14] At page two of her response to the insurer’s review decision.
The claimant says she was advised by Constable Gattas that the pothole was repaired.
The photographs taken by the insurer’s investigator suggests there may have been a pothole which has been repaired. The photographs of the pothole show what appears to me to be some unevenness in the road surface and if the pot-hole had been repaired that is to be expected.
There is no evidence from the council or road authority about the size of the pothole or its depth, any complaints made to the council or road authority by members of the public or other persons, or confirmation that the pothole had been repaired. It is therefore difficult for me to decide whether the claimant could have seen the pothole before she ran into it and therefore whether she could have taken any evasive action to avoid it.
The Court of Appeal in Mamo v Surace[15] dealt with the issue of negligence on the part of a driver who collided with a cow on a country roadway at night. The driver, for a very short period of time before the accident, had been adjusting the CD player in the car. Justice McColl said at paragraph 60:
“Accepting that the exercise of reasonable care required the respondent to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 (at [12] per Gummow, Kirby and Hayne JJ) does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur.”
[15] [2014] NSWCA 58.
The court’s finding was that reasonableness and not perfection is required in keeping a proper lookout and that, in the circumstances of that case it was not a breach of duty for the driver to take his eye off the road for a short period of time.
There is no dispute that General Holmes Drive is a major road in Sydney and that the speed limit on it is controlled by variable speed signs and that on the day of the accident the speed sign had been reduced from the usual 70 kmph to 60 kmph. I have accepted the claimant’s evidence that there was a flow of traffic and that the traffic was heavy. That would suggest that the claimant’s ability to see the pothole would be limited bearing in mind the vehicles in front of, and around her.
Ms Rapaport said that in her statement Ms Anderson agrees there are potholes all over the roads due to the wet weather. Ms Rapaport suggested the claimant should have kept a heightened lookout and been travelling at a slower speed.
In Derrick v Cheung[16] the High Court was considering a tragic case involving an infant pedestrian who ran out in front of a car travelling under the speed limit in Chatswood. The Court found there was no fault or negligence on the part of the driver citing with approval this passage from the dissenting judgment of Davies AJA in the court below:
"… She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption."
[16] [2001] HCA 48.
While the claimant was generally aware of the presence of potholes due to the terrible weather in Sydney over the summer, there is no evidence she was aware of this particular pothole, and she was driving on a major three to four lane road described in the police report as a motorway. It is not reasonable in my view for her to reduce her speed even further and cause disruption to the general flow of traffic.
I note also that Ms Anderson has said there were illuminated variable speed signs (which she saw and acted upon). If the state of the road was not fit for drivers to travel at 60 kmph then presumably the variable speed sign would have been adjusted further.
Even if Ms Anderson did have the opportunity to see the pothole before she ran into it, there was a truck to her left and a wall to her right and her ability to take evasive action was limited.
Did Ms Anderson fail to take reasonable care?
Section 5R of the CL Act says that the standard of care is the objective “reasonable person” test.
Ms Anderson was, in my view, driving at a speed at or below the speed limit. She was travelling in a line of traffic which gave her a view of the road surface limited to the distance between her and the vehicle ahead of her. She hit a pothole which she did not see as she merged from one lane into another in order to get to the road that would take her to her dental appointment.
In my view, a reasonable person in the position of Ms Anderson would have driven as she had driven and there was no contributory negligence on her part.
Conclusion
It therefore follows that Ms Anderson is neither wholly at fault or mostly at fault and she is entitled to a continuation of her statutory benefits beyond the first 26 weeks after the accident.
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