Araujo-Perez v Allianz

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Araujo-Perez v Allianz [2022] NSWPIC 310
CLAIMANT:	Adrian Araujo-Perez
INSURER:	Allianz
MEMBER:	Elizabeth Medland
DATE OF DECISION:	21 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the injured person was mostly at fault pursuant to section 3.11 and 3.28 of the Motor Accident Injuries Act 2017; insured vehicle was stationary in the right lane of the M5 Motorway with hazard lights illuminated, following mechanical failure; he Claimant, who was riding a motorcycle collided with the rear of the stationary vehicle at speed; video footage of the collision available; insured driver not available for questioning at the assessment conference; evidence treated with caution leaving open possibility that Insured may have had a reasonable opportunity to steer the vehicle to the left at an earlier point; Held– Claimant mostly at fault with contributory negligence assessed at at least 70%.
DETERMINATIONS MADE:	1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 12 August 2021. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus 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 injured person is wholly or mostly at fault under ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act). If the claimant is mostly at fault, the insurer is entitled to cease payments of statutory benefits after 26 weeks.

Mr Adrian Araujo-Perez (the claimant), a 27-year-old male, was injured in a motor accident occurring on 15 May 2021. He was the rider of a motor cycle travelling along the M5 Motorway when he collided with the rear of a stationary vehicle.
The claimant subsequently lodged an application for statutory benefits with the insurer of the stationary vehicle (Allianz) that was presumably initially accepted.
Whilst not before me, I am advised that by way of notice dated 12 August 2021, the insurer advised the claimant that he was considered to be wholly at fault for the accident and accordingly liability for statutory benefits after 26 weeks was denied.
An application for internal review was lodged with the insurer. In a determination dated 2 September 2021, the insurer affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (the Commission) and the matter has been allocated to me for assessment.
An assessment conference was held with the parties via Videolink on 26 April 2022.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative Framework

Section 3.11 of the MAI Act provides as follows:
(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%.
Section 3.28 of the MAI Act provides as follows:
(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
(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%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.

Circumstances of the accident and summary of evidence

The NSW police report, created on the date of the accident, confirms the motor accident occurred on the M5 motorway approximately 50 metres west of the King Georges Roadway, Beverly Hills. The report includes the following crash summary details:
“At 21:30 on 15 May 2021 driver 1 20 year old male was driving a 2005 Holden Commodore heading East on the M5. Driver 1 stopped Vehicle 1 in the middle of the road in lane 4 of 5 as vehicle 1 was not functioning properly. Veh1 was stationary in the middle of the road for approx. 2 mins when veh 2 heading in the same direction collided with the rear of veh 1.”
Whilst two vehicles are included in the crash summary details, only the insured vehicle is listed as an “accident unit” and the details of the claimant’s motor cycle are not included in the report. It is noted that the NSW police report states “Y” in answer to the question whether the insured vehicle was the unit responsible.
An application for the NSW police file was lodged by Brooksight Investigations on behalf of the insurer under the Government Information (Public Access) Act 2009 NSW. The “COPS” report includes a transcript of the insured driver’s version of events taken 2:43 in the morning after the accident. The version recorded is as follows:
“I was driving on M5 heading Eastbound at 70kmph when I noticed the steering and brake was not functioning properly. I stopped the car, the car was stationary on the road for about 2 minutes in lane 4 of 5 when another driver/rider collided with the rear of my vehicle. I had my hazards on.”
When asked by police why he stopped in the middle of the road the insured driver answered: “I couldn’t turn to the side because the steering wheel locked.”
The COPS report also notes that the claimant attended Mascot Police Station on 31 May 2021. The claimant advised police that he was visiting a friend and was heading home on the M5 East. The claimant confirmed that he could not remember what happened after that and he only remembers waking up in hospital.
The report then states: “from the information provided from both parties VEH1 has collided into the rear of VEH2 when it broke down on the M5. Causing VEH1 to be at fault.”
It is also confirmed that police attempted to contact M5 to obtain CCTV footage, however, the attempt was unsuccessful as M5 advised that the CCTV cameras are only live traffic cams.
Also before me is a transcript of interview of 25 January 2022 between an investigator of Brooksight Investigations and Constable Mark Botros. The transcript confirms the Constable attended the scene shortly after the accident. The transcript largely confirms the information summarised above. However, it is confirmed that a blood sample taken from the claimant was negative for alcohol.
The Constable also confirmed that the claimant was deemed to be at fault, however, no action was taken against him on account of the injuries he suffered.
The Application for Personal Injury Benefits dated 19 May 2021 reveals the claimant has no memory of the actual accident, and includes the following version of events: “I remember approaching area near king georges Rd exit & then I rember waking up on the side of road being treated by paramedics. I do have photos of aftermath.” [sic]
As part of the claimant’s application, a number of photographs of the relevant roadway are included. It demonstrates the stretch of the M5 motorway to have five lanes in total. Above the roadway is an overpass with signage and illuminated speed signs depicting “80”.
Also included is an aerial satellite image of the relevant stretch of roadway. The image depicts a long and straight roadway.
Also included are a number of photographs of both vehicles at the scene of the accident. The insured vehicle, a black 2008 Holden Commodore, is seen to have extensive rear end damage including a broken rear windscreen. The claimant’s motorcycle can be best described as being “mangled.”
Before me is a statement of the insured driver, Mr Tristan Maurice Daaboul, dated 9 July 2021 (however, signed at a later date).
The statement reveals the insured driver to hold a class C, P1 NSW drivers licence and having one year driving experience.
He describes the accident occurring at approximately 9.30pm at night with five lanes eastbound on the motorway, past the King Georges Road near the M8 tunnel entrance. East and West bound lanes are described as being divided by a concrete barrier.
The insured driver notes that he did not have a dash cam, and at the time the accident occurred he was outside of the vehicle and a friend of his was recording the roadway and the accident was recorded. He provided the video footage to the investigators. I have discussed same further below.
He was travelling with two friends at the time of the accident. Statements have not been provided by either of these witnesses.
The accident is described from paragraph 20 relevantly as follows by the insured driver:
“I recall I was travelling east on the M5 motorway and I started to notice that my vehicle wasn’t driving as it should. All of a sudden the vehicle started staling and the steering locked, I stopped accelerating and the vehicle began to slow down a little bit. I slowed down and applied the handbrake to stop the vehicle, I stayed in the very right lane because I couldn’t steer. I came to a complete stop and put my hazard lights on. We got out of the my vehicle and we ran to the left hand side of the road.
I was calling roadside assistance and my vehicle was stopped in the right hand lane for about a minute when I heard a big bag (sic) and I turned around and saw a person in the air travelling over the top of my vehicle. I saw the bike was smashed into the back of my vehicle.
…
I believe the cause of the accident was that the rider didn’t look, my vehicle was stopped and had its hazard lights on and I think the rider must have thought that it was moving and didn’t see it and ran into the back.”
Also before me is a statement of George Daaboul dated 3 March 2022. The statement confirms he is the owner of the insured vehicle and that to the best of his knowledge, the vehicle had no mechanical issues at the time of the accident. The vehicle was written off after the accident. The statement also notes that he did not hold any further information regarding the vehicle including any evidence as to the cause of the mechanical failure of the vehicle.

Video footage of the accident

I have reviewed the video footage of the accident multiple times. The footage is confronting and depicts an obviously very serious accident that involves the claimant being flung into the air after colliding with the insured vehicle and landing heavily onto the roadway.
The footage is 10 seconds in length.
The footage demonstrates the three persons standing on the left side of the motorway, with two males depicted and a third person not in view but is clearly the person taking the footage.
The insured vehicle is visible in the right lane, stationary, and with hazard lights illuminated. Other than the insured vehicle, the roadway is clear of vehicles travelling in the claimant’s direction.
Initially the footage is in the direction of the insured vehicle, with the phone/camera then swinging around to the right which shows the claimant approaching the area at a constant speed in the far right lane. The footage follows the path of the claimant, and then depicts him collide with the rear of the vehicle without speed or path of travel altered.

Submissions

Claimant’s submissions

The submissions lodged on behalf of the claimant state that primarily the video footage is relied upon.
The submissions refer to the case of AHL v Allianz Insurance Limited [2019] NSWDRS CA 199 (AHL). The case is described as involving a vehicle stopped in lane two of two for around two and a half minutes to allow a person to catch a nearby bus. The insured vehicle in that case subsequently collided into the rear of the vehicle as they did not know the vehicle was stationary. It was determined that the stationary vehicle was 40% at fault and the other driver was 60% at fault.
On the basis of such assessment, the claimant submits he would be entitled to ongoing statutory benefits as the contributory negligence would not meet the threshold of greater than 61% contributory negligence.
The submissions also refer to the Road Rules 2014 NSW (Road Rules). Unhelpfully, the referred to parts of the Road Rules are not adequately set out or explained. However, for completeness I have set the relevant parts out below.
Firstly, the submissions rely on cl 125 of the NSW Road Rules on the basis that such Rule provides that a driver must not unreasonably obstruct the path of another driver or a pedestrian. The Rule provides as follows:
“(1)   A driver must not unreasonably obstruct the path of another driver or a pedestrian.
(2)     For this rule, a driver does not unreasonably obstruct the path of another driver or a pedestrian only because -
(a)the driver is stopped in traffic, or
(b)     the driver is driving more slowly than other vehicles (unless the driver          is driving abnormally slowly in the circumstances).
The submissions refer to defences contained with “section 165” with a note that such defence would not apply to cl 125 as it only refers to “Part 12.” I note that Rule 125 is under Part 11. In any event, I assume the claimant refers to cl 165(b) which provides a defence as follows:
“the driver stops at a particular place, or in a particular way, because the driver’s vehicle is disabled, and the driver stops for no longer than is necessary for the vehicle to be moved safely to a place where the driver is permitted to park the vehicle under these Rules,”
For context, Part 12 includes provisions relating to “stopping” in certain areas.
On the basis that the defence of Rule 125 does not apply, it is submitted that the question is whether it was unreasonable that the insured vehicle was obstructing traffic on the M5 motorway. In submitting that it was unreasonable, the claimant’s position is summarised as follows:
a.    the insured driver was negligent in failing to ensure his vehicle was in a roadworthy condition and failed to properly inspect his vehicle prior to taking the trip.
b.    The insured was negligent in failing to immediately move his vehicle out of the line of traffic once it had broken down.
c.     The “Transport for NSW Breakdown Safety Strategy September 2012” is referred to (but no copy is provided). It is said that such strategy states amongst other suggestions that if broken down a motorist should not stop unless they have to, should find a safe spot and park the vehicle as far left as possible. It is also said that motorists should be aware that it is often difficult for vehicles travelling on high-speed roads to stop in a hurry.
d.    The insured driver should have pulled over to left as soon as he was aware the vehicle was not functioning properly.
e.    An exit ramp to King Georges Road is situated approximately one kilometre prior to the collision site and a reasonable and prudent driver would have taken the exit to pull the vehicle over and determine the cause of the mechanical issues.
f.     Otherwise, if the insured vehicle had started malfunctioning after such exit, a further exit is positioned ahead approximately 300 metres from the collision site, with sufficient room for a broken-down car.
g.    It is submitted that it is unlikely that the insured vehicle only started malfunctioning 300 meters prior to the collision site, as the car would have had to come to a complete stop within this time and was travelling at 80km/h at a minimum. However, if it did malfunction within the 3300 meters, the driver should have at least attempted to move the car to the left hand side of the road.
h.    Whilst it could be expected that cars could be slow or even stationary in the left lane, vehicles travelling in the right lane could not be expected to be stationary. Accordingly, the insured driver was negligent in failing to pull over to the side of the road when the vehicle started to malfunction.
i.     It is also submitted that the insured driver did not take adequate steps to warn approaching vehicles. It is conceded that the hazard lights were activated, however, the insured driver and his two companions could have, for example, used the lights on their phones to get the attention of oncoming drivers. In addition, Linkt, the manager of the toll road, should have been contacted, so that signage could be activated to warn of the hazard ahead.
j.     It is submitted that the insured driver as a “young and inexperienced P-Plater” did the bare minimum by activating the hazard lights, but failing to move the vehicle to a safe location.
In addition to the above submissions, it is also submitted that a number of factors existed to impede the claimant’s ability to perceive and respond. They are made on behalf of the claimant as follows:
a.     it is difficult for drivers to recognise that vehicles are stationary, especially so on motorways when travelling at a speed of approximately 80km/h and when it is not expected that vehicles would be stationary. Accordingly, response time would have greater.
b.     The insured vehicle was positioned right below the overhanging signage indicating the speed limit, in a section where the road transitions from dark to light due to the positioning of the streetlights. As a result of this visual distortion, it would have been difficult for the claimant to perceive the stationary vehicle as a hazard.
c.     The claimant was wearing a full face helmet which would have restricted his vision.
d.     Motorbikes do not stop as suddenly or as well as cars.
e.     The hazard lights on the insured vehicle could have easily been misconstrued as an indicator, and would have been reasonable to misconstrue the hazard lights and fail to perceive the hazard, given that it would not be expected for a vehicle to be stationary in that position.

Insurer’s submissions

The insurer submits that the accident was caused wholly as a consequence of the claimant.
Whilst it is acknowledged that the vehicle was broken down in the right hand lane of the motorway, that itself does not bespeak negligence. There is no evidence of the cause of the breakdown, and due to the vehicle being written off the cause can not be determined.
The vehicle was in the right hand lane due to the insured vehicle beginning to stall and the steering wheel locking. The insured therefore stopped accelerating and began to slow down and apply the handbrake. The vehicle remained in that lane as the insured driver was unable to steer the vehicle.
The claimant’s submissions as to the alleged negligence of the insured is refuted by the evidence and the actions of the insured driver were entirely reasonable and there was no safer alternative available to him.
The claimant’s submission that it is unlikely that the insured vehicle only started malfunctioning 300 metres prior to the collision site, is conjecture with no supportive evidence.

The insured driver had an obligation to other road users, but also to take reasonable care of himself. As such it was entirely prudent for him to exit the vehicle and for the fellow occupants move to a position of safety.
The claimant’s submission that the insured should have contacted Linkt and the occupants of the vehicle should have used their phone lights, firstly do not amount to negligence within the definition of a “motor accident” and also are not causative of the collision. The alleged failings of the occupants of the vehicle are not relevant to determination at hand, and in any event the claimant failed to recognise the hazard lights and therefore it is a baseless submission that phone lights would have avoided the collision.
The aerial photograph provided is evidence that the roadway is reasonably straight and contains no evidence of an obstruction that could account for the failure of the claimant to observe the insured vehicle.
The only conclusion that can be drawn is that the claimant was not keeping a proper lookout and in those circumstances his actions were wholly responsible for the accident.
The presence of the insured vehicle did not require the claimant to stop his motorcycle, the only requirement was that he observe the vehicle and travel around it. The evidence is that he took no evasive action prior to the collision, presumably due to his failure to keep a proper lookout.
It is conceded that perception response times may be greater in a circumstance where a driver is confronted with an unexpected obstacle. However, the claimant was travelling on a motorway where other vehicles would not be unexpected, albeit stationary. Whether the insured vehicle (referred to in the submissions as the claimant’s vehicle, which I have assumed to be an error) was travelling slowly or stationery the claimant had an obligation to travel at a speed where he could avoid the collision.
There is no evidence the claimant took any evasive action.
If the claimant’s vision was impeded by his helmet, as suggested on his behalf, then this would amount to negligence if he was travelling at a speed where he could not avoid the accident.
The submission that motorcycles take longer to stop, amounts to conjecture only and he was not required to stop his vehicle, only travel around the insured vehicle.

The assessment conference

The claimant has no memory of the collision. Accordingly, the assessment conference consisted mainly of oral submissions. However, Ms Allen briefly questioned the claimant. He confirmed that he had no memory of the accident. He was asked whether he had seen the video footage of the accident, to which he confirmed he had. The claimant agreed that the insured vehicle is depicted as stationary with the hazard lights illuminated.
The claimant was asked whether there was anything on the video to explain why he was not able to see the vehicle on approach. In response the claimant stated words to the effect that he could not.
Prior to the assessment conference I was informed the claimant’s representatives requested from the insurer that the insured driver be made available for questioning at the conference. I was informed that the insured driver declined to participate. Mr Cleary, submitted that both the insured driver and the insured owner should have been made available for questioning and as such the evidence contained within the statements could not be tested. It was submitted that the statements were unsworn. It was submitted that the insurer bears the onus in respect of the dispute, and in circumstances where those persons are not available to have their evidence tested amounts to a denial of natural justice.
In response Ms Allen noted the statements are signed. In relation to the persons not being available at the assessment conference, Ms Allen noted that there is no mechanism available to compel the witnesses to attend and as such it is an issue for the Commission, rather than the insurer. As such, if an insurer is unable to compel the insured driver and owner to attend, no adverse inference should be taken.
Mr Cleary further submitted that the insurer bears the onus in the dispute, which includes the onus to establish that the occurrence of the collision was inevitable, with nothing that could have been done to prevent it. Furthermore, the insurer bears the onus to establish a mechanical issue was there, and the insured driver could not have done anything further than what he did. Mr Cleary submitted the insurer has failed to discharge its onus.
Mr Cleary submitted that essentially the insurer asks me to accept that the vehicle suddenly froze. This should not be accepted and that I should not be satisfied with the inevitable nature of the accident. In that regard, Mr Cleary directed me to a case of Cook v Nash [1958] Qd R1, specifically where Stanley J, with whom Hanger J and Moynihan AJ agreed, stated that:
“Now it seems to me that a plea of inevitable accident must either add something or nothing to a mere denial of negligence. The authorities take the view that it adds something. What is that something? IT seems that the defendant undertakes either to show what was the cause of the accident and that the result of that cause was inevitable, or he must show all possible causes, one or other of which produced the effect, and with regard to each of the possible causes, he must show that the result could not have been avoided.”
In response Ms Allen noted the insurer does not allege an inevitable accident as the accident could have been avoided if the claimant was keeping a proper lookout.
I specifically requested Mr Cleary address the video footage given the crucial nature of such evidence. Mr Cleary submitted that the accident occurred at night on an upslope with artificial lighting and he would not describe the area as being well lit. He further submitted that the presence of a stationary vehicle at night in light traffic conditions was an unexpected event. It was noted that it is difficult to make submissions as to the opportunity to see the vehicle, given the claimant has no memory. However, given the vehicle was situated on an upslope, it may have been difficult to see it on approach.
Mr Cleary went on to acknowledge that a finding of contributory negligence could not be avoided. However, the proximate cause of the accident is the insured vehicle being stopped in the middle of the road at night. Had the insured vehicle not been there, the accident would not have occurred.
In response, Ms Allen submitted that there is no evidence to suggest that the view of the insured vehicle was obstructed and the area was in fact well lit. Irrespective to what happened to the vehicle, in terms of relative culpability, the insured vehicle was capable of being seen and avoided if the claimant had been keeping a proper lookout in a situation where there was adequate time and distance to avoid the insured vehicle. Ms Allen submitted that there should not be equal culpability in a situation where the claimant could have completely avoided the accident.
In respect of onus, Ms Allen submitted that the insurer’s onus is discharged on the basis of the insured driver’s statement and the video footage.
In response to the claimant’s written submissions reference to the matter of AHL v Allianz [2019] NSWDRS CA 199, Ms Allen noted the facts can be distinguished, particularly noting that the stationary vehicle in that matter had been voluntarily stopped to allow someone to alight the vehicle, and this was not the case in the subject matter.

Reasons

Essentially, the question for determination is whether the claimant is mostly at fault for the accident. “Mostly at fault” is defined as being contributory negligence greater than 61% (ss 3.11(2) and 3.28(2) of the MAI Act).
When assessing contributory negligence, I am to be guided by s 5R of the Civil Liability Act 2002. Section 5R provides as follows:
(1) The principles that are applicable in determining whether a person has been negligent 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.
(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.
I am therefore to assess what a reasonable person in the position of the claimant could have been reasonably expected to do to avoid the collision.
As set out above, Mr Cleary submitted that the statements of the insured driver and insured owner should not be considered by me when making my determination in circumstances where they were not available for questioning.
I have considered the statements in making my determination. However, I have done so with caution. Particularly where there is an absence of alternative corroborative evidence.
After considering all the evidence before me, I accept as a matter of fact that the insured vehicle suffered a mechanical failure. There is no other logical reason to suggest why a driver with two occupants would leave a vehicle on the M5 roadway, with hazard lights illuminated and stand off to the side.
I also accept the insured driver’s evidence that his steering malfunctioned and by the time he had reached the point on the roadway where he stopped the vehicle he was not able to steer the vehicle to the left. In this regard, I note that the police had questioned him on this very point within hours of the accident. The evidence is therefore consistent.
I do not accept the suggestion that the insured driver was at fault for not using his phone light as a way to warn approaching vehicles. If anything, I consider that such measure would add to any possible confusion of oncoming drivers and would distract them from visualising the actual hazard ahead.
I also do not accept that the allegation that the insured was at fault for not contacting “Linkt”. From the evidence to hand, it is apparent that the occupants of the vehicle had only exited the vehicle around two minutes prior to the accident. There is no evidence to suggest that he would have reasonably known what “Linkt” is, and how to contact them.
I note the submission that the insured vehicle was positioned under the overhead signage and is positioned just after where the roadway goes from darker to lighter. I do not, however, accept that a ‘visual distortion’ or that same meant that the hazard lights could be mistaken as an indicator. This is mere conjecture without any supportive evidence.
I make a similar finding in respect of the suggestion that the claimant’s vision was impaired because he was wearing full face helmet. There is no evidence to support such suggestion, and I also accept the insurer’s submission that if his vision was obscured then this is suggestive of the claimant not travelling at a safe speed in order to avoid potential hazards.
However, I am not able to accept as fact that there may not have been an opportunity when the vehicle first began to malfunction, for the insured driver to bring the vehicle to a stop in a safer position. In the absence of further questioning of the insured driver as to the precisely the details of the malfunction and the timing of same, I find there is a reasonable basis to suggest that there may have been an opportunity to position the vehicle in a safer position.
Accordingly, I am satisfied that there is a reasonable basis to suggest the insured driver is at least partly at fault.
The issue that remains is whether the contributory negligence of the claimant is greater than 61%, thereby deeming him “mostly at fault” as defined in ss 3.11 and 3.28.
From the video footage of the accident, contributory negligence of the claimant is clear. The footage demonstrates the vehicle positioned in an area of the roadway that was well lit and the hazard lights are clearly visible. I accept that a reasonable person in the position of the claimant, if they were keeping a proper lookout, would have observed the presence of the vehicle and have taken appropriate evasive action to avoid the collision.
The footage demonstrates that the claimant failed to notice the vehicle on the roadway, and if he did, he did say at the very last moment before the collision. The claimant took no evasive action at all, with no sign of slowing down or changing the path his motorcycle. The claimant simply collides with the vehicle at speed.
Furthermore, the footage demonstrates that other than the insured vehicle in the right lane, all other lanes are clear of vehicles and there was ample room and opportunity for the claimant to have steered around the vehicle.
I accept that a stationary vehicle in the right lane of a motorway such as an M5 is not a hazard one would reasonably expect to encounter in light traffic. I also accept the proposition that in such circumstances response times may be slower. However, on the basis of the footage, I find that there was more than sufficient opportunity for the claimant to have observed the vehicle on the roadway. Given that there is no sign of any evasive action, it is clear that the claimant failed to observe the stationary vehicle at all, and if he did it was at the very last moment.
I find that the claimant failed to keep a proper lookout and had he done so, the accident would likely have been avoided by him by steering around the vehicle. This is particularly so when the video footage demonstrates the lanes to the left being completely clear of vehicles or any other hazard.
I accept the insurer’s submission that the matter of AHL can be easily distinguished from the subject accident. Specifically, the insured vehicle in the matter of AHL was stopped voluntarily to allow someone to leave the vehicle. This is not the case in the subject matter, where the car being in a stationary position was due to mechanical failure.
On the basis of the evidence before me, predominantly the video footage, I find that the claimant’s contributory negligence should be assessed at a level of at least 70%. On such basis, I find the claimant to be mostly at fault.

Costs and disbursements

As a regulated miscellaneous claims assessment matter under Schedule 1, cls(3)(2)(d) & (e) of the Regulation, legal costs may be awarded.
Schedule 1 cl(3)(1) of the Regulation provides that the maximum costs of legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. The current value of a monetary unit is $106.89.
There is no dispute between the parties on the issue of costs. The claimant makes a claim for costs at the maximum regulated amount and the insurer has conceded such amount.
I am satisfied that the claimant is entitled to the payment of legal costs.
I allow costs in the sum of $1,710 plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.11 the motor accident was not caused by the fault of another person.
For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 12 August 2021.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·        MAI Act;
·        the Regulation, and
·        the Civil Liability Act 2002.

[2022] NSWPIC 310

21 June 2022