Baxter v AAI Limited t/as GIO
[2024] NSWPIC 643
•20 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Baxter v AAI Limited t/as GIO [2024] NSWPIC 643 |
| CLAIMANT: | Jamie Baxter |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Michael Inglis |
| DATE OF DECISION: | 20 November 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); culpability of claimant’s contributory negligence assessed at 20%; claimant was a front seat passenger in a motor vehicle which left the road and collided with a tree; claimant knew or ought to have known that the vehicle was fitted with airbags which were likely to be deployed on impact; expert evidence indicated that plaintiff's injuries to left ankle and hip were significantly aggravated by the fact that her feet were on the dashboard at the time of impact; claimant knew or ought to have known that by placing her feet on the dashboard, she was exposing herself to a foreseeable risk of injury which was not insignificant; Held – driver’s negligence/culpability major cause of injury suffered by the claimant, contributory negligence assessed at 20%; consideration of sections 5B and 5R of the Civil Liability Act 2002, Pennington v Norris Podbrebersek v Australian Iron & Steel Pty Ltd, Boral Bricks v Cosmidis (No. 2) and section 4.17 of the MAI Act. |
| DETERMINATIONS MADE: | CERTIFICATE Certificate issued under Division 7.6 of the Motor Accidents Injuries Act 2017 Responsibility for the injury suffered by the claimant is apportioned 80% to the insured driver and 20% to the claimant. |
STATEMENT OF REASONS
BACKGROUND
Jamie Lisa Baxter, the claimant, is currently 34 years old. She was last employed from July 2019 until 20 November 2019 by CIV Force Traffic Management as a Traffic Controller. She says that she ceased that employment due to COVID19 and no further shifts being available.
In the early hours of 19 June 2020, the claimant says in a statement dated 28 August 2023 that she had spent the evening having drinks with a group of close friends. She had been drinking alcohol and used illicit substances that night. A friend, Mohammad Karnouh and the claimant intended travelling to see a friend of theirs, one George Haddad.
As the claimant was under the influence of alcohol and/or drugs and Mr Karnouh was not, it was decided that he would drive. The claimant was seated in the front passenger seat. They had arranged to meet Mr Haddad at Homebush. In her statement, the claimant says that she had her feet on the dashboard.
Whilst in transit, the vehicle left the road and struck a tree.
Following the accident, the claimant was conveyed to Concord Hospital with significant and high-energy orthopaedic injuries. She was diagnosed with a Gustilo Grade III fracture of the left ankle. She was diagnosed with a displaced intrascapular fracture of the right neck of the femur. She had multiple lacerations. She underwent emergency surgery in the form of debridement and open reduction and internal fixation of the left ankle. She underwent internal fixation of her right neck of the femur. She spent about six weeks in hospital as a result of the orthopaedic injuries.
The claimant underwent multiple surgeries by a plastic surgeon, Dr Dusseldorp, to obtain closure of the traumatic wound over her left ankle region. She underwent a vascularised flap over her left ankle. She came under the care of an orthopaedic surgeon, Dr Zicat. The claimant suffers ongoing disabilities and incapacity as a result of the injuries she sustained.
Those injuries have not sufficiently resolved and/or settled to permit assessment of any whole person impairment.
ISSUES TO BE DETERMINED
The parties have agreed to the issues of liability and quantum being separately determined. I am now tasked with determining the level, if any, of contributory negligence on the part of the claimant.
GIO, the insurer, initially issued a liability notice on 11 May 2022, determining that the motor accident was caused wholly or mostly by the fault of the claimant, and therefore, the claimant was not entitled to statutory benefits for weekly payments and care expenses.
However, following extensive investigation, to which I will be referring in more detail later in this decision, on 28 June 2024, the insurer wrote to the claimant saying relevantly, “Thank you for your patience whilst we have been assessing the circumstances of your motor accident and your injuries. After assessing the accident in detail, we admit liability, but we are reducing your entitlement to damages by 50% because of your contribution to your injuries.”
At the assessment conference, the insurer maintained that I should find that the claimant contributed to her injuries to the extent of 50%.
THE EVIDENCE
I have had regard to all the material relied upon by the claimant and the insurer, including the material attached to the application and the reply.
Claimant’s Evidence
In her statement, the claimant admits to having both her feet on the dashboard of the vehicle when the vehicle struck a tree. In particular, she says:
“I remember the impact of the airbag deploying. I remember my left ankle being hit by something, causing it to snap at the joint and my bone to break through the skin. I felt pain from my feet to my hips, particularly the right hip and through my arms, although there was so much adrenaline running through my body initially that I could not process the pain. I remember seeing a lot of blood coming from my ankle. I was in shock and didn’t notice it initially, but I must have injured my back. The glass and debris had left me with cuts all over my body.”
The claimant’s solicitors commissioned an opinion from Adjunct Professor Robert Anderson, an expert in accident reconstruction. In his report, Prof Anderson noted that the accident occurred 355 metres to the east of the intersection of Australia Avenue and Marjory Jackson Pathway near Sydney Olympic Park. His reconstruction demonstrated that the driver likely failed to take a right hand bend at the end of the straight leading up to the point of the collision. He noted a slight deviation of the vehicle’s path at the end of the trajectory, which deviation indicated that it was plausible that the driver made some late attempt at steering. He estimated the speed of the vehicle at between 50 and 60 kph. As such, he did not think that speed was a significant cause of the accident. In his opinion, the most likely cause of the accident was a period of inattention by the driver, or possibly fatigue, as the trajectory suggested, the vehicle travelled straight with almost no deviation as it failed to take the curve.
Adjunct Professor Anderson considered that the claimant was most likely the passenger rather than the driver of the vehicle. This is not a matter that I am now required to determine. However, as to the nexus between the injury suffered by the claimant and the positioning of her feet on the dashboard, Adjunct Professor Anderson opined:
“9.2. The plaintiff stated that she was a passenger in the vehicle and had her feet on the dashboard at the time of the crash. If this were the case, the deploying airbag would likely have struck her legs. The airbag cover and the deploying airbag may have hit one or both of the plaintiff’s feet or lower legs. The general effect of this would have been to thrust her foot or feet upwards and outwards, or potentially rearward if the deploying airbag contacted her flexed knee or foot.
9.3. The damage to the windscreen near the passenger A-pillar was likely caused by an object striking from the interior side and in my opinion, is highly consistent with the injuries to the plaintiff’s left ankle. If the plaintiff’s left foot was propelled upward and thrown forward, it would likely have struck the upper windscreen. This could also have led to a period of foot entrapment, and further twisting of her body could have led to the external rotation of the foot implicated by the pattern of injury.
9.4. An axial force along her femur most likely caused the plaintiff’s right hip injuries. The photographs of the interior do not fully show all areas that could have interacted with her right leg. The nature of her right hip injuries suggests a high - energy impact involving axial loading along the femur combined with external rotation and bending forces. Possibilities might include the right foot being thrown to the left of the airbag with both feet interacting with the upper windscreen or A-pillar, impact from the deploying airbag itself (which would occur with high-energy), driving her foot and leg, rearward, or impact with the dashboard (noting that there is no apparent corresponding damage to the dashboard). It is reasonable to assume that the forces of the deploying airbag would have been sufficient to cause the injury.
9.5. Overall, the plaintiff’s lower extremity injuries are highly consistent with having her feet on the dash at the time of airbag deployment.”
Insurer’s Evidence
The insurer obtained an opinion from Tia Gaffney, a mechanical engineer, who is also an expert in accident reconstruction. Her report is dated 21 June 2024.
Ms Gaffney agreed with Adjunct Professor Anderson that the relevant speed limit was likely to be 60 kph rather than the 50 kilometres speed limit cited in the police report. Ms Gaffney was essentially in agreement with the majority of the findings and conclusions of Adjunct Professor Anderson. In relation to the injuries suffered by the claimant to her left ankle, Ms Gaffney opined:
Effect of Feet on the Dashboard on Left Ankle Injury
“It is the author’s opinion that the position of the claimant had significant bearing on the nature and severity of the injury she sustained to her left ankle. Positioning her ankle on the dash adjacent to the deploying airbag and windscreen applied forces that counteracted her body’s forward inertia, which resulted in the complex high-energy ankle fracture she sustained. If the claimant had been seated normally with her seat belt on, there was likely insufficient combined toepan deformation and forward motion of her body to cause fracture to her left lower extremity.”
Concerning the injury to the claimant’s right hip, Ms Gaffney opined:
Effect of Feet on the Dashboard on Right Hip Injury
“It is the author’s opinion that the position of the claimant had a significant bearing on the nature and severity of the injuries she sustained to her right hip. Positioning her feet on the dash adjacent to the deploying airbag and windscreen applied forces that counteracted her body’s forward inertia. This resulted in the airbag deploying beneath her legs rather than in front of her body and the airbag therefore, did not resist her forward motion. As a result, the claimant’s knee-femur-hip system was able to travel forward and interact with the vehicle interior in such a way as to cause significant high-force injury to the femoral neck and acetabulum. The angle of the legs was likely less than 90 degrees prior to impact, which also feasibly contributed to the complexity of the femoral head fracture (which was at a high angle).
If the claimant had been seated normally with her seat belt on, there was likely insufficient combined rearward structural deformation of components and forward motion of her body to cause fracture to her right hip.”
In relation to the opinions expressed by A/Prof Anderson, Ms Gaffney said further:
“Specific comments regarding Dr Anderson’s report are provided starting on page 37. The opinions expressed in this report are in complete agreement with those expressed by Dr Anderson. We agree regarding the likely seating position of the claimant, the nature and mechanism of injury sustained, and the probability of injuries had the claimant been seated normally with her feet on the floor.”
Neither party challenged the experts’ qualifications to express the opinions contained in their respective reports.
The only medical evidence available to me is contained in the report of Dr Ron Haig, orthopaedic surgeon, to the insurer dated 18 January 2024 concerning the issues that I must determine, Dr Haig expresses the following relevant opinions:
“13. Assuming the patient was the front seat passenger with her feet on the dashboard:
a.Would the patient have sustained injury to her left ankle had she not had her feet on the dashboard ? please provide reasons.
Had she not had her feet on the dashboard she could still have suffered such a fracture to the left ankle.
b.Would the left ankle injury have been lessened had she not had her feet on the dashboard? If so, in what way?
Her left ankle injury would have been less likely, and perhaps less severe had she not had her feet on the dashboard. With her feet on the dashboard, I believe there would be more force transmitted through the lower extremity but this is a matter that an expert in that field would be better placed to answer.
c.Would the patient have sustained an injury to her right hip had she not had her feet on the dashboard? Please provide reasons.
Had she not had her feet on the dashboard, she could still have sustained such an injury to the right hip. If the foot was on the floor there would still be the transmission of forces up through the right lower extremity exerting massive forces in the area.
d.Would the right hip injury have been lessened had she not had her feet on the dashboard? If so, in what way?
My answer to this question is the same as for the left ankle injury”
I note that appropriately, Dr Haig deferred to the opinion of an appropriately qualified expert in relation to the forces transmitted through the lower extremity as a result of the claimant having her feet on the dashboard.
SUBMISSIONS
Insurer’s Submissions
Counsel for the insurer, Mr Guihot, referred me to s 5B and 5R of the Civil Liability Act 2002 (CL Act). Section 5B provides:
“5B General Principles
(1) A person is not negligent in failing to take precautions against the 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), and
(b) The risk was not insignificant, and
(c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against the risk of harm, the Court is to consider the following (amongst other relevant things) --
(a) The probability that the harm would occur if the care were not taken,
(b) The likely seriousness of the harm,
(c) The burden of taking precautions to avoid the risk of harm,
(d) The social utility of the activity that creates the risk of harm.
Section 5R provides:
5R Standard of Contributory Negligence
(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 contributory negligent in failing to take reasonable 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 the person knew or ought to have known at the time."
Mr Guihot noted that in accordance with the principles enunciated in Joslyn v Berryman (2003) 214 CLR 552, the fact that the claimant’s judgement may have been impaired as the result of the consumption of drugs and/or alcohol was not a defence when it came to the assessment of any contributory negligence.
Mr Guihot submitted that the claimant knew or ought to have been aware that airbags would have been a standard feature in the vehicle which I note was a black 2008 Volkswagen Golf sedan and likely to be activated as a result of a collision. He submitted that a reasonable person would be aware of that foreseeable risk which was not insignificant.
Mr Guihot submitted that the claimant’s failure to take reasonable care for her own safety by placing her feet on the dashboard was causative in the nature and extent of the injuries that she sustained. In making this submission, he relied upon the opinions expressed by Adjunct Professor Anderson, Ms Gaffney, and Dr Haig.
In relation to the question of apportionment of responsibility, Mr Guihot correctly submitted that such apportionment must be just and equitable. See Pennington v Norris (1956) 96 CLR 10. That principle is enshrined in s 4.17 of the Motor Accident Injuries Act 2017 (MAI Act), which provides relevantly as follows:
(1) The damages recoverable in respect of the motor accident are to be reduced on account of contributory negligence by such percentage as the Court or commission thinks just and equitable in the circumstances of the case unless
(2) Requires that the damages be reduced by a fixed percentage. The Court or commission must state the reasons for "determining the particular percentage.”
Subsection 4 has no application to the facts of this matter.
Mr Guihot submitted that there was no evidence that the insured driver lost control of the vehicle and that it was the joint opinion of the experts that he simply failed to negotiate a slight curve in the road. That failure could have been due to inattention or fatigue. He submitted that I would prefer the opinions expressed in Ms Gaffney’s report in that regard.
In conclusion, he submitted that it was only the claimant’s failure that caused the significant injury she sustained and that contributory negligence should be assessed by me as amounting to at least 50%. In response to a question asked by me as to whether or not the driver should have warned the claimant not to place her feet on the dashboard, Mr Guihot submitted that the driver was under no such obligation.
Complainant’s Submissions
Mr Roberts SC, for the claimant, submitted that the claimant’s factual scenario was different to comparing the action required of a reasonable person knowing that not wearing a seat belt, getting into a car with a driver who had been drinking or jumping on the bonnet of a car was likely to give rise to a significant risk of injury.
He submitted that there was no authority to support a finding that the claimant knew or ought to have known of the presence of the airbags and the likelihood that they would deploy upon the happening of a collision.
Mr Roberts challenged the submission of Mr Guihot that the report of Ms Gaffney was to the effect that no fractures would have been suffered if the claimant’s feet had not been on the dashboard. His submission was that the effect of Ms Gaffney’s opinion was that the ankle injury was less likely and perhaps less severe, he noted that the expert was opining on the force required, not the likelihood of injury.
As to the level of culpability on the part of the driver, Mr Roberts submitted that normally, a vehicle will only leave the road as a result of the driver losing control. That is what occurred in the circumstances of this accident and cannot be read down. The airbags were deployed as a result of the vehicle colliding with a tree.
Mr Roberts submitted that a driver is under an obligation to require a passenger to wear a seat belt and has control over the number of passengers travelling in a vehicle. The driver can also insist that a passenger not travel in an area not designed for passengers. Although not compelled, the driver could have said to the claimant that he would not drive the vehicle whilst her feet were on the dashboard.
Mr Roberts submitted that the level of contributory negligence was in the range of 10 to 20%.
Consideration
The fact that the claimant had her feet on the dashboard of the vehicle at the time the vehicle left the road and collided with a tree is not in dispute. Similarly, it is no longer disputed that the claimant was a passenger in the vehicle. I am satisfied that the expert evidence available establishes that the claimant suffered injuries that were significantly more severe in relation to her ankle and hip because her feet were positioned on the dashboard. I do not accept Mr Guihot's submission that it is probable that the claimant would not have sustained any injury to these anatomical areas if her feet had been placed on the floor at the time of impact. Dr Haig in his report said relevantly, "if the foot was on the floor, there would still be the transmission of forces up through the right lower extremity exerting massive forces in the area."
In determining the level of any contributory negligence on the part of the claimant, I firstly need to determine whether the claimant knew or ought to have known that the vehicle was fitted with airbags and that they were likely to be deployed upon impact. It is common knowledge that almost all vehicles are fitted with airbags. It was apparent from the material available to the parties that the claimant's knowledge of the presence of the airbags was an issue of importance. The claimant has made a statement which makes no reference to any lack of knowledge on her part of the presence of the airbags. She also had the opportunity to make a supplementary statement. In these circumstances I am satisfied that the claimant knew or ought to have known that there were airbags fitted to the vehicle and that they were likely to be deployed upon the occurrence of a significant impact.
I am satisfied that the claimant, by placing her feet on the dashboard, knew or ought to have known that she was exposing herself to a foreseeable risk of injury which was not insignificant. I am satisfied that the risk of harm was serious and that the claimant could have taken precautions to avoid that risk of harm by placing her feet on the floor of the vehicle.
I now turn to the question of apportionment. Prior to the introduction of s 5R of the CL Act, the only statutory direction as to the assessment of contributory negligence was the requirement to consider what was “just and equitable having regard to the claimant's share in the responsibility for the damage” in the circumstances.
When it comes to the component elements for considering what is “just and equitable”, the leading authority continues to be the formulation of the High Court in Podbrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492. In that case, the Court determined:
“The making of an apportionment as between the plaintiff and the defendant of their respective shares in the responsibility for the damage involves a comparison of both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man… and of the relative importance of the acts of the parties in causing the damage… it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
The two touchstones of an assessment of contributory negligence remain the concepts of “relative culpability” and “causal potency”. The impact of the implementation of s 5R of the CL Act was considered by the Court of Appeal in Boral Bricks Pty Ltd v Cosmidis (No. 2) [2014] NSWCA 139 (Boral Bricks). In Boral Bricks, a majority of the Court of Appeal (Basten and Emmett JJA agreeing) concluded that s 5R reflected parliamentary intent and policy that people were to take responsibility for their own lives and safety.
In Boral Bricks, the plaintiff was run down by forklifts on commercial premises. The driver of the forklift was employed by the defendant company.
Justice Basten held that the “intended purpose of s 5R is clearer than its actual operation”. His Honour continued that the intent was to treat the assessment of a plaintiff's contributory negligence in the same terms as the assessment of the defendant's negligence, in accordance with the general principles set out in s 5B.
Justice Basten concluded that the intent behind s 5R was that people should take responsibility for their own lives and safety and that there was intent to override the approach previously adopted by the Courts. His Honour concluded:
“If the plaintiffs were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of the pedestrians and if each were equally careless, liability should be shared equally.”
This was described by His Honour as a purposive approach to the operation of s 5R.
On the facts of that case, the contributory negligence of the plaintiff was assessed by the majority to be 30%. However, those facts involved an industrial accident where the defendant company controlled the system of work at the premises and where there was evidence that there were additional precautions that the occupier could have deployed (including the use of a spotter). Accordingly, the 30% assessment would not necessarily follow, for example, in the event of a pedestrian and motorist coming into contact on the open road.
Returning to the facts of this matter and assessing the degree of culpability, I accept that as Mr Roberts submitted that for whatever reason the insured driver lost control of the vehicle. As a result, the vehicle struck a tree thereby occasioning serious injuries to the claimant. The driver must therefore bear by far the major responsibility for the accident and the injuries suffered by the complainant. However, as I have found the claimant exposed herself to a serious risk of injury by placing her feet on the dashboard of the vehicle such that she suffered significantly more extensive injuries than she would have if her feet had remained in the customary position on the floor of the vehicle. I note that unlike the wearing of a seat belt or a helmet, there is no regulation binding a passenger as to where he or she positions her feet in a motor vehicle.
Doing the best I can on the evidence before me, I determine that it is just and equitable to apportion responsibility for the injuries suffered by the claimant as 80% to the driver and 20% to the claimant.
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