Bentley v QBE Insurance (Australia) Limited
[2023] NSWPIC 85
•8 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Bentley v QBE Insurance (Australia) Limited [2023] NSWPIC 85 |
| Claimant: | Ermelinda Bentley |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 8 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment matter; dispute about wholly at fault, mostly at fault and contributory negligence; claimant driver of car turning right across path of insured vehicle; truck in front of claimant obstructing insured driver’s view of claimant; claimant alleged insured driver speeding, failed to slow down and failed to take precautions to avoid the accident; CCTV footage of crash from nearby premises available; parties obtained joint expert as to speed of insured driver as 50 – 60 km per hour based on that footage but could not be more precise; Held – claimant wholly at fault; cause of accident was her turning right in front of oncoming traffic; no finding that insured speeding could be made on basis of expert evidence; insured not required to slow down or take precautions on basis of presence of a truck on the other side of the road travelling in the other direction; not reasonable to expect a vehicle would undertake reckless right hand turn manoeuvre from behind the truck; costs agreed at $5,800 plus GST (three disputes at maximum regulated fee). |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $5,800 plus GST of $580. |
STATEMENT OF REASONS
Introduction
Ermelinda Bentley was involved in a motor accident on 20 September 2021. She was heading eastwards on Fairfield Street when she turned right into a driveway. As she did so she collided with a vehicle driven by Mr El-Arab[1] who was heading westwards.
[1] There are two spellings of Mr El-Arab’s surname in the documentation before me, one with the hyphen and the other without. As his driver’s license includes the hyphen I have adopted that spelling in these reasons.
On or about 27 November 2021, Ms Bentley made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE the third-party insurer of Mr El-Arab’s motor vehicle.
A dispute has arisen in connection with the claim about whether the accident was caused wholly or mostly by Ms Bentley’s fault. The claimant referred the dispute to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me and I have conduction three preliminary conferences. At the third preliminary conference, after having heard from the parties, I decided to determine the dispute on the papers.
Legislative Framework
Statutory benefits generally
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits paid pursuant to Division 3.3 and treatment and care benefits paid pursuant to Division 3.4.
Under s 3.1 of the MAI Act, benefits for the first 26 weeks are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11(1) and 3.28(2), an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if “the accident was caused wholly or mostly by the fault of the injured person”.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
There is no issue in this matter about “minor” injury. Ms Bentley sustained fractures which are not minor injuries.
If the motor accident was not caused “wholly or mostly” by the fault of the claimant then, under s 3.38, weekly benefits are reduced if there is contributory negligence on the part of the claimant where that contributory negligence is 61% or less.
Dispute resolution
The parties agree that Schedule 2 of the MAI Act provides the Commission with jurisdiction to determine whether Ms Bentley is wholly or mostly at fault in respect of her weekly benefits (cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (cl 3(e)).
Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefits should be reduced for the claimant’s contributory negligence.
Insurer’s Decision Making
Liability notices
The insurer’s submissions say at [3] that the insurer issued a first liability notice on
2 November 2021[2] and that the claimant has been paid some statutory benefits. Thish suggests that the insurer accepted the claim which would include an acceptance that QBE is the relevant insurer under s 3.2(2)(b) and in accordance with s 3.2(4)(b).
[2] Neither the claimant nor the insurer have provided a copy of the insurer’s first liability notice. Due to the nature of the issues in dispute between the parties, it is not necessary for me to delay the assessment in order to review it.
On 24 December 2021, QBE sent an email to the claimant with its second liability notice. While the insurer accepted the claimant had sustained injuries that were not “minor injuries”, the insurer alleged the claimant was “mostly at fault in the motor accident as you drove into the path of an oncoming vehicle when it was unsafe to do so”. The insurer relied on two Brooksight Investigation reports and the police report.
On 7 February 2022, the insurer conducted an internal review of that decision and QBE’s internal reviewer advised Ms Bentley that in the reviewer’s view, the claimant was “mostly at fault”.
Submissions
Claimant’s submissions[3]
[3] The claimant’s submissions are undated but are identified as document A6 in the Commission’s electronic file. The numbers in square brackets correspond with the numbered paragraphs in the submissions.
The claimant submits at [3.3] that the CCTV footage shows that QBE’s insured was traveling “at considerable speed” and confirms the point of impact on the roadway.
The claimant says at [3.4] that the insured says he was travelling at 30kmph at the time of impact however “the images illustrate otherwise noting the severity of the damages”. The claimant also argued the insured had said he had slammed on the brakes, but the footage does not indicate he did so.
The claimant says at [3.5] that the police report does not determine fault and provides little detail and only an interpretation of what happened. As a result, the claimant says her version of events should be given more weight.
Insurer’s submissions[4]
[4] The insurer’s submissions are dated 24 August 2022 and are document AD3. The numbers in square brackets are referable to the paragraph numbers in the submissions.
The insurer’s submissions at [12] alleged that the claimant was “wholly or mostly at fault for the subject accident”.
After summarising the evidence, the insurer says:
(a) the claimant admits she was attempting to turn right across oncoming traffic and therefore the insured had the right of way [22];
(b) the claimant had crossed over the centre of the road at the time of the collision [3];
(c) the CCTV footage appears to show the claimant stopping her car before the impact [25];
(d) the insured said his view was blocked by a large truck travelling in front of the claimant which was why he did not see the claimant until just before impact [24] and the insured had no time to avoid the collision [25];
(e) it is likely the claimant’s view was also obstructed by the large truck and a reasonable person would have waited for a clear view before turning right across traffic [27];
(f) road rules 38 and 72 provide that the insured had right of way and the claimant did not give way in breach of the rules;
(g) the claimant has made unsubstantiated claims that the insured vehicle was speeding and there is no evidence to support this [33];
(h) the police considered the claimant to be at fault [34], and
(i) the police evidence should be preferred over the version of events in the claim form because it is the “most contemporaneous document” [37].
The insurer’s primary submission is that the claimant is wholly at fault and that the insured did not contribute to the accident at all [40]. In the alternative at [41] the insurer says the culpability of the claimant is greater than that of the insured and her contributory negligence should be assessed at 80% which would result in a finding that she was mostly at fault.
First preliminary conference
The first preliminary telephone conference was held on 6 September 2022. In a report of the same date issued to the parties I noted at paragraph 12 that:
“Both parties rely on the CCTV footage. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 as to how photographs (which in my view would include CCTV footage) are to be used in the absence of expert evidence.”
I invited the parties to consider whether expert evidence was to be obtained and if so whether that expert might be a joint expert to provide an opinion as to matters such as the speed of the insured vehicle.
I was advised that the parties had agreed to obtain a joint expert and upon receipt of that expert’s report the parties provided final submissions.
Claimant’s final submissions[5]
[5] Document AD4 in the Commission’s file.
The claimant says the evidence supports findings that:
(a) she checked for oncoming traffic before turning into the driveway, did not see any cars coming and her view was not blocked [3.1];
(b) the speed limit was 50kmph [3.2];
(c) the insured said he was travelling at 30kmph, but the expert says he was “likely” to have been traveling at a speed of 50 – 60kmph [3.3] and [3.4];
(d) the CCTV footage shows the insured failed to brake which is inconsistent with his evidence that he slammed on the brakes [3.5], and
(e) the insured driver said there was a truck blocking the insured’s view of the claimant and he had no time to stop or avoid the accident [3.6] and thereore he should have slowed down or taken steps to avoid a collision.
The claimant notes at [3.8] that the insurer relies on the evidence of the police officer who did not witness the accident or speak with the claimant and provides an opinion based on what she was told which is ‘undesirable’ and her opinion should be given no weight.
The claimant says at [3.9] she cannot be wholly at fault because the insured breached his duty of care to the claimant by:
(a) failing to slow down when his view was obstructed, and
(b) failing to reduce his speed or not maintain a speed of 50 – 60kmph.
On the topic of contributory negligence, the claimant appears to be submitting that there is no contributory negligence on her part but if there is her contributory negligence should be less than 61%. The claimant’s submissions are focussed on the behaviour of the insured who she says was speeding and failed to brake or take action to avoid the collision when his vision was obscured by the truck [3.12]. The claimant does not address at all the issue of her actions in turning right into a driveway or undertaking a u-turn across oncoming traffic.
Insurer’s final submissions[6]
[6] Document AD5 in the Commission’s file.
The insurer submits:
(a) the insured was travelling straight when the claimant turned right across his path and he had the right of way [8] and [10];
(b) the claimant alleges the insured did not brake and the insured said he “slammed on his brake”. The expert says the CCTV footage supports a finding that an attempt to brake was made [11] – [14];
(c) the claimant alleges the insured was speeding however the expert was of the opinion that the insured was travelling at between 50 – 60kmph and whether this is excessive is a matter for the “court” to determine [15] – [18]. It is as likely for the insured to be driving at 50kmph as it was for him to be driving at 60kmph, and on that basis, I would not be satisfied that the insured was speeding [21] – [23];
(d) the damage to the vehicle is in evidence in photographs but there is no expert evidence to correlate the damage in the photographs to the likely speed of the vehicle [24] - [26], and
(e) the presence of a truck travelling in the opposite direction to that of the insured does not require him to reduce his speed. The truck was not impeding his path of travel [31] – [33].
The insurer says at [35] that the accident occurred due to the claimant’s negligence in conducting a right hand turn across the flow of traffic when it was not safe to do so.
In terms of contributory negligence, the insurer says at [44] that the most significant factor contributing to the collision was the claimant turning right across oncoming traffic. The insurer says at [47] the insured took action to avoid the collision in that he braked before the collision.
The insurer says if there is any negligence on the part of the insured, then the claimant’s contributory negligence should be assessed at two thirds to 80%.
Review of the Evidence
Claim form and claimant’s evidence
The claimant’s application for personal injury benefits (claim form) was signed and dated 27 September 2021.[7] It says:
(a) the accident occurred at 2.40pm on 20 September 2021;
(b) the location of the accident was Fairfield Street, Fairfield East;
(c) the claimant says:
33. “I pulled out in the street where I parked, then a little bit further and I turn on my right blinker going to the driveway then out of nowhere I saw this car coming to me very fast and hit my car left side of the front and bounced and hit my car again left side tire. This street is 50 km zone”;
(a) the claimant identified the insured driver, Mohammed El-Arab as the at fault driver;
(b) she says she sustained broken ribs, chest pain and had difficulty lifting things and sleeping due to pain, and
(c) she was taken to Fairfield Hospital but discharged the same day.
[7] Page 22 of the insurer’s bundle of documents.
The claimant did not provide a statement to the insurer’s investigator, but she did answer a number of questions by way of a letter dated 22 February 2022 from her solicitor to the investigator.[8] It appears from the answers given that:
(a) the claimant was parked in the kerb-side lane and she wanted to turn right into a driveway so she approached the middle of the road and turned her right indicator on;
(b) the other vehicle appeared suddenly and without warning collided with her car;
(c) the claimant worked on Fairfield Street;
(d) it was sunny and fine with light traffic and the view was good and clear. She was travelling at 10kmph;
(e) she approximates the speed of the other vehicle as 70kmph, and
(f) she stopped in the middle of the road before the collision.
[8] Page 34 in the insurer’s bundle of documents.
The claimant has provided a statement to the Commission dated 28 September 2023.[9] In is Ms Bentley says:
(a) she had parked her car under a tree (and she has marked up a photograph to show where she had parked) and she started her car and indicated to pull out and checked her mirrors. She saw a truck coming out of the driveway ahead of her, so she waited [4];
(b) after the truck was in the traffic lane, she checked her mirrors again and pulled out from the kerb. She then drove a couple of meters forward before coming to a stop and indicated to turn right [5];
(c) she checked for oncoming traffic “to ensure it was safe before turning right into the driveway” and “I did not see any cars coming from the opposite direction” and her view was not blocked. “Suddenly, as I almost completed my turn, I saw an oncoming vehicle travelling towards me at considerable speed from the corner of my eyes”. She then panics and slammed on her brakes very hard but “before I could react, the oncoming vehicle had collided into my vehicle at considerable speed” [6];
(d) Mr El-Arab must have been speeding because she did not see him when she decided to turn and by the time she had almost completed her turn he was there. She thought he may have come out of a driveway [8];
(e) she spoke to Constable Corden who expressed the opinion to her that the insured driver was speeding [9];
(f) she was not dropping anyone off she was on her way home [26], and
(g) there were people around who came to help her after the accident.
[9] Document AD1 in the Commission’s file.
The marked up photograph shows that the claimant parked very close to the driveway from which the truck exited which is almost opposite the driveway she was turning into.
The insured’s evidence
The first report from Brooksight investigations is dated 15 December 2021.[10] This provided the CCTV footage and the statement from the insured.
[10] Page 44 in the insurer’s bundle of documents.
Mr El-Arab’s statement says:
(a) he was the only person in his car;
(b) there was a truck leaving a driveway entering Fairfield Road and heading in the opposite direction to his direction of travel;
(c) the claimant was parked behind the truck and he did not see her before “she suddenly turned tight from behind the truck and was doing a U-turn” [23];
(d) he had no time to stop but “slammed on” the brakes and hit her at 30kmph [24] and tried to swerve to the right to avoid a more serious impact [25];
(e) he thought the claimant was dropping off passengers because when he stopped (after the impact) there were people around [26];
(f) some witnesses spoke to him [33] and one of them gave him the CCTV footage [34];
(g) he had driven along the Hume Highway, turned into Woodville Road and then left onto Fairfield Street and drives a few hundred metres before the collision occurred [49];
(h) his airbags did not deploy [55];
(i) the road is two lanes in each direction with one lane each way devoted to parking [69];
(j) the road is very flat and level. His view was good [70] but he did not see her “because she was tucked behind a truck that was exiting a driveway” [71], and
(k) he could not have avoided the accident, however he tried to minimise the impact [72].
Police report and police evidence
The police report was created by Probationary Constable Mu.[11] She records the street was straight, the weather fine and the road dry. The report notes Mr El-Arab was proceeding straight, and the claimant was turning into a driveway. There is no narrative as to how the accident occurred and there is nothing in this report to suggest the police officer considered either party at fault.
[11] Page 38 of the insurer’s bundle of documents.
The second Brooksight investigation report is dated 23 December 2021[12] and includes the statement from the Constable Chloe Doogue. This is not the police officer who completed the police report. This statement suggests:
(a) officers attended after the claimant’s car had been towed away and the claimant was in the ambulance;
(b) Ms Bentley spoke to the leading officer, Senior Constable Corden only;
(c) Constable Doogue gave a version of what was said but that was “from memory” and appears to be second hand from the more Senior Officer, and
(d) it appears no further action was taken because the claimant never got back to the police about the nature of her injuries.
[12] Page 67 of the insurer’s bundle of documents.
There is no statement from any of the other police officers involved in particular from Senior Constable Corden who apparently took the claimant’s statement.
The CCTV footage
The CCTV footage is about a minute long. The collision occurs at a point in time 12 seconds into the film.
The footage comes from a property with a driveway fronting onto the northern side of Fairfield Street. The claimant was parked just before the driveway and is seen coming from the right, the insured is seen coming from the left. The footage is grainy and only shows a limited distance (which the expert identifies as about 8.5 to 8.75m).
It shows a truck coming out of the driveway and turning left (to the east) into Fairfield Street.
As the truck clears the camera and moves out of view, within one second, the film then shows the claimant heading in the same (easterly) direction before turning right at an angle into the driveway but not at 90 degrees to the driveway. When she has moved over the lines and is in the middle of the road, the claimant stops her car, moments before the impact and directly in the path of Mr El-Arab’s oncoming vehicle.
It shows the insured heading in a westerly direction, swerving a bit to the right and bouncing off the claimant’s stationary vehicle and then back again.
Joint expert evidence
Christopher Hall provided a report to the parties on 12 December 2022.[13]
[13] Document AD3 in the Commission’s file.
He appears to have been given all the relevant evidence as well as the CCTV footage and has assumed four things which are not in dispute between the parties:
(a) Mr El-Arab was driving a 2011 Hilux utility in a westerly direction;
(b) as he approached 30 – 32 Fairfield Street, the claimant driving a Camry sedan in an easterly direction and turned right across his path;
(c) the claimant applied her brakes and stopped in the westbound lane and a collision then occurred, and
(d) it was fine and dry at the time.
An aerial photograph of the scene provided at [6.1] shows the street to be straight with four lanes of traffic, two in each direction. The kerb side lanes in each have cars parked. The area appears to be a non-residential area and there are a number of driveways leading to commercial or industrial premises. There are cars parked within those premises.
Mr Hall sets out his methodology in determining the speed based on the frame rate of the CCTV footage and the distance travelled.
He notes the footage is of “relatively poor quality”. He identifies, in figure 4 on page 9 of his report the location of the security camera and the angle of vision it provided of the street.
He has analysed the images and formed the view:
(a) when first captured by the camera, the estimated speed of Mr El-Arab’s vehicle was 40 – 45kmph [6.12];
(b) Mr El-Arab was braking heavily over the final 0.7 - 0.75 seconds [6.14];
(c) at the time of impact, the speed of Mr El Arab’s vehicle was estimated at 30 – 36kmph;
(d) because there is no vision of Mr El Arab’s vehicle before it is seen in the CCTV footage, it is not possible to determine precisely when the braking started [6.20]. It is assumed to have started when the vehicle first came into view [6.18];
(e) while he estimated the approach speed of Mr El-Arab to be 50 – 58kmph he said it is possible the approach speed was greater than that [6.19] and [6.20] if he applies the brakes before he came into view of the camera;
(f) Mr El Arab’s statement that his vision of the claimant’s car was obscured by the truck is “consistent with the geometry of the roadway, the movement of the truck observed in the CCTV footage and the movement of the Camry from the westbound lane into the eastbound lane” [6.21];
(g) Mr Hall estimated that Mr El-Arab would have had about 1.9 – 2 seconds to recognise that the Camry was moving into his path and to take evasive action [6.22], and
(h) as he was braking for at least 0.7 to 0.75 seconds and his reaction time would have been in the order of 1 – 1.5 seconds it is therefore unlikely he was braking for a significant time before he came into view [6.23].
Mr Hall concludes therefore at [6.24] that the likely speed Mr El-Arab was travelling along Fairfield Street was 50 – 60kmph. However, he could not determine with any certainty whether Mr El-Arab was travelling at 50 – 51kmph or 59 – 60kmph [7.1].
Mr Hall then poses at [8.2] the question “At what speed could the collision have been avoided in the circumstances?” The collision avoidance speed is said to be based on the position of the vehicle on the roadway when the hazard (Ms Bentley’s vehicle) is first recognised, and an assumption that braking occurred to bring the vehicle to rest before reaching the hazard. The answer to the question of what speed Mr Hall would have needed to be driving to avoid the collision with Ms Bentley in all the circumstances would appear, in my view, to require only one answer and that is a certain speed in kmph. In other words, I was expecting Mr Hall’s answer to be “If Mr El-Arab had been driving at x kmph, and saw Ms Bentley’s car turning when the truck passed him, he would have been able to bring his vehicle to a halt and stop his vehicle and avoid the collision”.
Mr Hall however provides three estimates 45, 49 and 53kmph based on the speed
Mr El-Arab may have been travelling on the day of the incident (50, 55 or 60 kmph). As this part of his report is not clear, and neither of the parties have provided submissions in respect of it, I do not propose to rely on Part 8 of the report any further.
Consideration of the issues
An approach to wholly or mostly at fault disputes
In the report issued to the parties after the third preliminary conference I suggested that in a two-vehicle accident the approach to the issue of whether the claimant is wholly or mostly at fault is to:
(a) look first at the actions of the insured to see if the insured driver was at fault by asking whether he was negligent or breached a duty of care to the claimant – if he is then, the claimant cannot be wholly at fault;
(b) if the insured is found to have been at fault, the issue is then to determine whether there should be a finding of contributory negligence against the claimant;
(c) if I find there to be contributory negligence on the part of the claimant then I must assess the degree of that contributory negligence. If it is greater than 61% the claimant must be mostly at fault, and
(d) if I find the degree of the claimant’s negligence is a percentage less than 61% then the claimant weekly benefits will continue but they will be reduced accordingly.
Findings of fact
It is not disputed that the speed limit on Fairfield Street was 50kmph, that the street was straight and that it was daylight and dry.
It is also not disputed that Ms Bentley turned right from one of the eastbound lanes of Fairfield Street intending either to head into a driveway or make a u-turn to head westbound. It is also not disputed that she stopped moments before the impact, and this is clearly shown in the CCTV footage.
I am satisfied, on the basis of the marked up photograph, that Ms Bentley was parked just before the driveway from which the truck exited almost opposite the beginning of the driveway where she was intending to turn into. I am also satisfied, on the basis of her statement, that Ms Bentley was not dropping anyone off at the time of her accident, as suggested by the insured, but had finished work and was in her car intending to head home.
I am satisfied, based on his statement that Mr El-Arab had not come out of a driveway, as suggested by Ms Bentley, but had driven for a few hundred metres down Fairfield Street before this accident.
While it is not disputed that Mr El-Arab was heading westbound down Fairfield Street, his speed is in dispute. I am satisfied based on the report that Mr El-Arab was travelling at between 50 and 60kmph. As the expert is unable to make a more precise estimate of speed than that, I cannot make a more precise finding as to his speed of travel.
I am satisfied based on my own viewing of the footage and the expert’s opinion that
Mr El-Arab braked before the collision.
Both Ms Bentley and Mr El-Arab agree that there was a truck on the road at the time and the CCTV footage shows this truck coming out of the driveway before turning left a few moments before the collision.
Was GIO’s insured at fault?
There is no doubt that as the driver of a motor vehicle on the road, Mr El-Arab owed a duty of care to all other road users, including other drivers such as Ms Bentley.
Ms Bentley said Mr El-Arab breached his duty of care to her by not reducing his speed generally and by failing to slow down when his view was obstructed by the truck.
I am not satisfied that Mr El-Arab breached his duty of care to the claimant for the following reasons:
(a) I cannot be satisfied, on the basis of the expert’s report, that Mr El-Arab was speeding in excess of the speed limit;
(b) a duty of care can be breached even if a car is travelling at or below the speed limit,[14] but as Stein and Fitzgerald JJA said in Derrick v Cheung[15] at [7]:
“Nevertheless, travelling within the designated speed limit and in conformity with the traffic flow is ordinarily reasonable. Indeed, to do otherwise would often create risks”;
(c) I do not accept that it was negligent for Mr El-Arab to be driving in a non-residential street at a speed less than the speed limit. While there is evidence of there being people in the vicinity, there is no evidence that they were posing a risk. There is evidence form the claimant that the traffic was light and there is no evidence of drivers, other than the claimant, posing a risk to the movement of traffic. It was reasonable in my view for Mr El-Arab to be driving at the speed limit;
(d) Mr El-Arab says a truck blocked his view of what was ahead and on the other side of the road including Ms Bentley and I am satisfied that this is a plausible explanation for Mr El Arab not seeing Ms Bentley, and as Justice McColl said at [60] of Mamo v Surace:[16]
“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 …) 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”, and
(e) it is not, as submitted by the claimant, negligent or an indication of fault for Mr El-Arab to maintain his speed and not slow down due to the presence of this truck. The truck was on the opposite side of the road travelling in the opposite direction. It would not be reasonably foreseeable in my view that the driver of a car behind that truck with an impeded view would undertake a reckless right turn manoeuvre in those circumstances. Mr El-Arab was, in my view, entitled to expect that other drivers such as Ms Bentley would take reasonable care for her own safety. Therefore, a reasonable person in the position of Mr El-Arab would not have taken precautions (such as slowing his speed) against the risk of another vehicle appearing from behind the truck undertaking a right hand turn against the traffic.
[14] For example, take the driver of a car travelling at the speed limit outside a park on a Saturday morning where many children are visible playing football. That driver may be found to be negligent in a situation where one of those children runs out onto the road to collect a stray ball.
[15] [1999] NSWCA 341.
[16] [2014] NSWCA58.
Was Ms Bentley at fault?
I do not accept Ms Bentley’s evidence in her statement that she waited for the truck to move out and away before checking her mirrors and pulling out from the kerb, driving a couple of metres then stopping and indicating to turn right before moving on. It is not plausible in my view for all of that to have happened in the distance she travelled and the very short time frame from the departure of the truck shown on the CCTV footage.
I do not accept Ms Bentley’s evidence in her statement that she stopped and checked for oncoming traffic before she started her turn. The CCTV footage does not show her driving up to the driveway and stopping before executing a 90 degree turn into the driveway. She appears on the footage to be driving at a wider and looser angle without stopping until she was on the opposite side of the road and the crash was imminent.
I do not accept that Ms Bentley checked for oncoming traffic before turning right and that she did not see any cars coming before she turned. If Mr El-Arab could not see
Ms Bentley, because the truck was impeding his line of vision, then I do not accept that Ms Bentley could see Mr El-Arab because the truck was ahead of her and on the roadway blocking her view.
In my view the cause of this accident was Ms Bentley executing a right hand turn from the eastbound lane across the westbound lane of Fairfield Street. I do not accept that she did not see any oncoming cars because Mr El-Arab was there to be seen. I do not accept Ms Bentley’s evidence that Mr El-Arab came out of a driveway or appeared “out of nowhere” at a considerable speed. Ms Bentley did not see Mr El-Arab until she had almost completed her turn and then she saw him out of the corner of her eye. This, in my view, suggest it was the claimant who was not keeping a proper lookout. If she had waited for the truck to pull further away and for her view up Fairfield Street to clear, she would have seen the approach of Mr El-Arab at whatever speed he was travelling and taken action to avoid a collision by stopping and not turning.
If Mr El-Arab was driving over the speed limit at say 60kmph, thereby not giving himself the opportunity to react in a timely fashion to a sudden emergency (Ms Bentley appearing and turning right in front of him) then that would suggest fault on his part. However, in my view a finding of contributory negligence would have to be made against Ms Bentley for her failure to execute a right hand turn with safety and for her failure to keep a proper lookout. In assessing the degree of her contributory negligence in that case, I would have found her at least 75% contributorily negligent. Mr El-Arab’s culpability would lie with the speed he was driving which, on the expert’s evidence was not greater than 60kmph, and not any deficit in his lookout which was blocked by the truck. Ms Bentley’s culpability would be greater because she is moving across oncoming traffic with limited vision of that oncoming traffic.
Conclusion and COSTS
Because I have found Mr El-Arab was not at fault, and there was no one else at fault, it follows therefore that Ms Bentley was wholly at fault.
The parties agree that there were three disputes referred to the Commission for determination and that the claimant is entitled to the maximum sum of $1,800 for each of them in accordance with the Motor Accident Injuries Regulation 2017. That makes a total of $5,400 in costs to which GST must be added in the sum of $540.
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