BKV v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BKV v AAI Limited t/as GIO [2024] NSWPIC 325
CLAIMANT:	BKV
INSURER:	AAI Limited t/as GIO
MEMBER:	Terence O'Riain
DATE OF DECISION:	21 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002; negligence; breach of duty to road user; assessing witness evidence; excessive speed; failing to keep a proper lookout; contributory negligence; 2019 accident; damages agreed; claimant’s car turns across path of insured; “T-bone“ collision; claimant and insured driver’s different accounts; insurer submits claimant’s narrative is inconsistent and reconstruction; claimant perfect traffic record; claimant unconscious; claimant alleges road clear; insured alleges he could not avoid collision; claimant’s three versions before CCTV located shows position of cars before collision; driver and claimant inconsistent; CCTV treated with caution; claimant’s “practice” and “custom”; allowance made for claimant’s psychological condition effecting evidence; insured driver inconsistent on speed; insured consistent that he was too close to brake or avoid collision when claimant turns; claimant’s evidence unreliable; insured reliable apart from conceded points; appropriate speed; insured aware of traffic volume; rely on insured and objective evidence; insured driver’s speed probable contributor to accident; insured breached duty of care; high level of contributory negligence; Held – claimant is entitled to damages; breach of duty of care established; 50% deduction for contributory negligence; decision de-identified.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Damages assessment made in accordance with s 7.36 of the Motor Accident Injuries Act 2017 In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. On the issue of liability for the claim; the insured driver owed a duty of care to the claimant, and breached that duty of care, and the claimant’s contribution to the injury, loss, and damage was 50%. 2. The amount of damages assessed for the claim is $262,500. 3. The claimant’s costs in the matter are calculated inclusive of GST at $31,813.10 including GST. The disbursements are to be agreed between the parties. 4. Following rule 132 of the Personal Injury Commission Rules I direct that the decision will be de-identified. 5. The reasons are attached to this certificate.

REASONS
BACKGROUND

The background is based on agreed facts, unless stated otherwise.
At around 3:30pm on 19 October 2020 – outside 23 Stennett Road, Ingleburn NSW – BKV (the claimant), a sales representative, was injured in a motor vehicle accident.[1] Stennett Road is part of a light industry park.
[1] Summary based on Quantumcorp investigations report dated 15 August 2023 (R2).
The claimant commenced employment with the owner of the vehicle he was driving about five weeks before the accident.
He had existing health issues, which he was managing. These conditions did not affect his driving capacity.
The claimant was driving his employer’s car to the above premises for servicing. He was initially driving north along Stennett Road, then turning east into the driveway.
The sign posted speed limit was 60kmph.
The insured’s car was travelling south along Stennett Road.
The weather was clear and fine, with the road dry.
The claimant was alone, driving a late model SUV. It was grey, and heavily marked with company advertising.
The claimant told his employer the day after the accident that the road was clear when he proceeded to turn into the driveway. A white Holden Ute came around a blind corner at speed after the claimant had already started to turn into the driveway. The white Holden Ute “T–boned” the claimant’s car. The insurer disputes this version.
The claimant’s injuries consisted of a whiplash, concussion, and a soft tissue right shoulder injury. An ambulance transported him to Campbelltown Hospital.
Stennett Road has one full lane in each direction, with markings dividing the north and southbound lanes. There is room for parking on either side of the road.
The accident site consists of a bitumen road that rises slightly in a southerly direction towards the crash site and is in good condition.
The parties agree traffic was light at the time of the accident, but it was around the time that the commute out of the park was beginning.
The claimant has provided several statements about how the accident occurred. The insured car’s driver, Josh Rath has provided one early version and two later statements.
The claimant’s unchallenged evidence is that he was an experienced daily driver of more than 50 years, with an unblemished driving record, who was not taking any substance that could have impaired his ability to operate the vehicle. He does not need glasses for driving. He recollects there were no distractions in the car. He was wearing his seat belt with the headlights off.
The insurer says the claimant’s version about what happened is unreliable, due to inconsistencies in his written statements, and with the CCTV video, and the insured driver’s evidence.
A claim for damages was lodged on 10 April 2022 (A4).
The insurer issued four liability notices, denying liability, on the basis that investigations were ongoing (A6-9).
Subject to the findings on liability the parties have agreed on the damages, which are set out later in these reasons.
It is agreed the insured driver owed a duty of care to the claimant.
The agreed issues to be resolved are:
(a)    Did the insured driver breach his duty of care?
(b)    If he did, was the claimant guilty of contributory negligence?
(c)    If the claimant’s own negligence contributed to his damage, to what degree should damages be discounted?

I am to issue the insurer and claimant with a certificate under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) as to the assessment with a brief statement setting out the Personal Injury Commission’s (Commission) reasons for the assessment.
The rules of evidence do not apply to this assessment, and I may consider any matter relevant to the issues in dispute in such manner, subject to providing procedural fairness to the parties.
Pt 1A (Negligence) Divs 1 – 4 and 8 of the Civil Liability Act 2002 (NSW) (CL Act) governs assessing whether the insured driver was negligent.
The parties asked to make written submissions at the conclusion of the assessment, with the claimant making the final submissions on 19 April 2024.

Liability and contributory negligence

The claimant alleges the insured driver breached his duty of care owed to the claimant and caused damage because the insured driver:
(a)    failed to keep a proper lookout;
(b)    failed to apply the brakes on his vehicle when it appeared the claimant would turn right;
(c)    failed to use the brakes on his car soon enough to avoid the collision;
(d)    failed to warn the claimant of his approach, and
(e)    drove his car at an excessive speed in the circumstances.

The insurer denies negligence and damage and alleges contributory negligence on the following grounds.
The claimant:
(a)    failed to see the insured driver;
(b)    failed to give way to the insured driver;
(c)    turned across the path of the insured driver;
(d)    failed to keep a proper, or any proper lookout for his safety;
(e)    failed to take adequate, or any care for his own safety, and
(f)    breaching s 75(1)(c) of the NSW Road Rules; which relevantly provides a driver entering a road related area or adjacent land from a place on a road without traffic lights or a stop sign, stop line, give way sign, or give way line must give way to—if the driver is turning right from the road—any oncoming vehicle on the road that is going straight ahead or turning left.

The following issues arise in this matter:
(a)    what should each driver have done to avoid the accident;
(b)    The claimant’s evidence reliability, and
(c)    the insured driver’s evidence reliability.

Evidence and submissions

CCTV video and photographic evidence

This closed-circuit television (CCTV) video was taken from the premises the claimant was entering. Both parties accept it was created from the day of the accident and shows the claimant and the insured’s vehicles colliding. It was produced to the parties in late 2023 after they had produced statements purporting to place their versions of what happened before the Commission.
I note photographs and videos are limited in replicating the parties’ perception of the events leading to the collision, and they should be treated with caution.
From the CCTV video[2] and photographs[3] of the premises and roads one can see this accident happened in a light industry park. The annotated aerial photo map provided in the joint bundle shows cars parked along the length of the roads.[4]
[2] R4 cctv BKV [sic] y089506002.
[3] Attachment 10 R2.
[4] J25 and J26 pages 295–296.
The CCTV video shows an elevated view from the rear of the premises. It overlooks the common driveway between businesses operating in that space out to the entrance and exit point onto Stennett Road. At 12:20:27 (not the correct time) on the CCTV digital clock it shows the claimant’s car turning and moving slowly to enter the premises from the left of the screen without stopping and turning right.
A car later identified as a white Suzuki Swift (the Swift) is seen moving out of the premises onto the driveway.
The video shows the insured’s car enters from the right of the CCTV view and strikes the claimant’s car in the cabin, between the bonnet and utility tray. I saw that the clock had moved to 12:20:32 at that point.
In that instance, the claimant’s car is pushed right and strikes the Swift on that car’s right front bonnet.
There are photos of the claimant and insured cars. Viewing photographs of the insured driver’s damaged vehicle at page 271 and 272 of the final joint bundle confirms that the force of the collision was applied on the left-hand side in the front cabin area.
Photos also shows large numbers of cars and trucks parked on the various properties joining the road. The parties agree that this was the normal state of the road during business hours.
There are further photographs in a bundle marked R1_R6. At page 78 of that bundle a photograph of the interior of the claimant’s vehicle shows the left-hand side airbag for the back seat of the twin cab had deployed.

Email dated 20 October 2020 from the claimant to his employer

The claimant’s earliest version of how the accident happened was expressed in this email [5]written the day after the accident, which says "The road was clear when I proceeded to turn into the driveway. The other driver in a white Holden Ute came speeding around a blind corner at speed after I had already proceeded into the driveway. He T-boned me".
[5] Quantumcorp Interim Factual Report dated 15 August 2023 attachment 9.
He refers to the insured driver admitting to the claimant that he “just did not see me in time and knew that he could not stop in time”.
He also expressed that he is ready to return to work. Based on the medical evidence this was not the case.
The police did not interview him to obtain his version, and despite the police attending soon after the crash, there is no police report. The police did not issue any traffic infringement notices.

Application for personal injury benefits dated 27 June 2022

The claimant applied for and received workers compensation benefits immediately after the accident. I have not been provided with a copy of the application for workers compensation so the next version of how the accident occurred is written in the application for personal injury benefits, which says:
"I negotiated a right-hand turn from Stennett Road into the driveway of 23 Stennett Road to drop off a work vehicle for service. As I was sitting in the driveway of 23 Stennett Road, my vehicle was hit on the left-hand side by speeding Holden utility rounding a blind corner on my left."

Claimant’s statement dated 22 February 2023

The claimant provided this statement to the insurer's investigator in an interview.
When the claimant provided this statement, he was living in his car.
He had held his license unconditionally since he was 18 years old and had never lost it for any reason. He is not required to wear glasses when he drives.
The claimant had started his employment with the vehicle's owner five weeks before the accident. His role required him to make regular visits to clients in a company vehicle. He estimates he was driving 200 to 300 km each day in this role.
On the day, the accident he was directed to take the company vehicle to the premises at Stennett Road and Ingleburn for service.
As he approached the premises, he recollects that the road ahead was clear of oncoming traffic. There were cars parked along both sides of the road before and after the driveway he was about to enter.
He thinks he had travelled this road two or three times before. He had visited the service centre before.
Before he states his recollection of the accident, he says the impact knocked him unconscious.
He describes the road as straight approaching the driveway, but after the driveway the road turns into a blind bend that is flat with one lane in each direction.
He says he slowed and stopped his car and looked ahead. When he saw that it was safe to turn right, he began to enter the driveway. He refers to another car coming out of the service centre. His attention was on that car. That car is the Swift seen in the CCTV.[6]
[6] Paragraph 34.
He recollects the rear wheels of his car were on the driveway, with some possible overhang onto the road. His recollection is that when the insured car hit him it struck the passenger side doors and rearguard.
The claimant also committed this recollection to a sketch that he provided on 15 March 2023 to the factual investigator.[7] The sketch shows that the insured car had turned left out of his lane to strike the claimant car, which had passed parked cars up into the driveway.
[7] Quantumcorp Interim Factual Report dated 15 August 2023 attachment 3.
The photographs of the damage to the claimant’s car show that he was struck squarely in the in the front passenger side door closer to the bonnet.[8]
[8] Page 194 joint bundle.
The claimant recollects he did not see the insured car, and that his next memory is awaking from unconsciousness on the ground, with someone he describes as a "witness".
He refers to being taken to hospital and not knowing the other driver was exchanging details with him at the accident.
He was discharged at 2:00am the following morning.
NRMA — property damage insurer for the insured driver's car — contacted the claimant later. He referred NRMA to his employer.
BKV's attempted to return to work the following day, but there were no suitable duties, so he could not return to that employment. His claim for workers compensation was accepted, but because he is over the retirement age weekly payments lasted only 12 months after the accident.

Claimant’s statement dated 20 September 2023

This statement deals mostly with the claimant's damages.
In respect of the accident details there are some variations with the earlier statement.
He adds to his recollection about the Swift exiting the premises he was entering. He says that he had stopped his car in the driveway to allow the Swift to manoeuvre its way out.
He says that as he was stopped in the driveway, the insured car "t–boned" his vehicle. He recalls the noise of the collision, and repeats the impact knocked him unconscious. He became conscious with strong pain in his right shoulder, and chest with a severe headache.
In respect of when he awoke, he says he felt dazed and was asking where he was and what happened.
He says that he was later told that the impact was strong enough to break his seat and that his right shoulder and head collided with the B pillar on the right side of the driver’s cabin.
Relevant to the claimant’s recollection of the accident he refers to seeing a psychologist, because he was suffering from flashbacks and severe anxiety related to the accident.
He was seeing the psychologist on a fortnightly basis, and he gave evidence at the assessment that he was still seeing her for treatment. Although he had not had problems with his mental health before the accident he has since suffered falls at home due to imbalance, vertigo, dizziness, anxiety, and flashbacks.
His healthcare providers were also prescribing strong pain medication. From the medical reports that pain and the elevated level of pain medication is continuing.

Claimant's statement dated 18 October 2023

This statement refers to his living conditions and attempts to find suitable work.

Claimant's supplementary statement dated 5 February 2024

This statement was provided after the claimant was shown the CCTV and accepted that his earlier statements were not fully accurate.
He states he has been purposely pushing his memory of the accident to the back of his mind because of the stress and trauma. He believes this may have affected his recollection of the details.
He says he had been driving the Ute for approximately five weeks before the accident. He had driven similar vehicles before.
A month earlier the vehicle had been given a safety check at the premises. This time was for a routine service.
There is a lot of traffic, and cars are parked tightly along both sides of the road. He was travelling at low speed as he still felt unfamiliar with that area.
At the point where he was going to enter the premises, he says Stennett Road is relatively flat, with a slight downhill decline northwards with a sweeping right-hand bend commencing just after the driveway onto the premises.
The bend is such that vehicles travelling south on Stennett Road cannot observe the driveway into the premises until they have rounded the bend.
He says the road is relatively narrow with the cars parked tightly on each side. The road is separated by double white line, with only a single lane available for vehicles travelling in each direction.
He provided a series of photographs and videos, which were taken shortly before the assessment. These were served late without qualification. They purported to give what would have been his view as he approached the premises. Noting that it could not be guaranteed they were giving his perspective as he experienced in the accident, I could not give them any weight.
He says he now recalls there was a vehicle parked on Stennett Road, close to the southern end of the driveway entrance, almost on the driveway apron.
He says his right indicator was on. He was looking ahead, and the roadway and driveway were clear.
He emphasises that as he began to turn right, he was driving deliberately and slowly.
At that point he saw the Swift moving to exit the driveway to the left. He says he continued to look ahead into the right as he negotiated the turn. The path was still clear. He says his vehicle was travelling at walking pace. It was while he was managing the driveway that he felt his vehicle was struck with tremendous force and he was flung violently to his right hitting his head and upper body on the door frame. There was no warning.
He recalls a paramedic placing an oxygen mask on his face. He was confused, in shock and in pain. He says he did not know what is happening. He was aware of pain in his head, dizziness and strong right shoulder and chest pain. He could not stand. He does not believe he spoke to the insured driver. He recalls seeing "him" being there. He recalls that he took a photo of his license.
At the point he was getting up from the ground he says the insured driver spoke and said that he had not seen the claimant in time and could not stop.
He denies that he apologised to the insured driver. He says he was in no position to have a conversation with the insured.
The claimant – based on his viewing of the CCTV – concedes he had not stopped before he began his turn right but was moving at a low speed. He accepts that he was still on the roadway when collision occurred, and the front of his vehicle was just reaching the apron of the driveway. He submits the inconsistency is due to the accident trauma, which has affected his recall.

Although the hospital notes and the ambulance report state he did not lose consciousness, he does not agree because of his immediate headache, the time he lost from when the impact occurred and when he became aware he was lying on the ground outside of the car.

Claimant’s answers to insurer’s questioning in assessment

Before the insurer questioned the claimant, the claimant’s counsel asked the claimant about his current state of health, in particular his mental health.
He said he is currently seeing a psychologist fortnightly. His pain levels arising from the accident require him to take opioids 3 to 4 times a day.
Mr Nesbeth for the insurer questioned the claimant about his familiarity with the road at the accident site. The claimant had been there once before with his employer. The claimant started that employment five weeks before the accident. The claimant's role was titled New South Wales business development officer.
On 23 September 2020 before the accident the claimant had emailed one of the business directors about issues with his company vehicle and wheel alignment.[9] The claimant had noticed this issue when he had taken the vehicle out. The employer’s reply referred to the vehicle not being the typical high-performance vehicle which the claimant was used to driving.
[9] Quantumcorp Interim Factual Report dated 15 August 2023 attachment 8.
The claimant mentioned in questioning that he had been a racing driver and mechanic in the past. This was why he felt qualified to point out shortcomings with the car.
Mr Nesbeth suggested to the claimant that this email showed that the claimant was not able to manage this type of vehicle as well as he needed to in the circumstances of the accident. The claimant rejected that suggestion and said he was driving that vehicle every workday for at least 200km since that email. He was not having any trouble with operating that vehicle before the accident.
In answering questions about what happened in the accident the claimant referred to the presence of a lot of parked cars. His answers showed he relied on what he would normally do, rather than answering only from his recall. He recalled that he did not see the insured vehicle before it hit him.
Referring to the email sent the day after the accident to his employer, where he had claimed the insured driver was speeding, he admitted that was a hypothesis based on the damage his car suffered, and not because he could see the vehicle speeding.
There were questions about what position he was on the roadway when the collision occurred. He had given three statements where he claimed that he was already in the driveway of the premises when the accident happened.
He has since seen the video from the premises which show his front wheels were still on the road and conceded that in his fourth statement after he saw the CCTV video, which shows him still on the road when he collided. However, during Mr Nesbeth’s questioning he reverted to his view that he was already across the road and on the driveway of the premises when the insured driver collided with his car. The claimant spoke of the video giving "that impression (the car was crossing the oncoming lane when it was struck), yeah, but I maintain that I had made the turn"; that is, he was on the driveway’s apron.
The claimant said that he experienced being knocked out for "maybe 10, 15 may be longer". The questioning did not elicit whether that was seconds or minutes. I understood that he meant minutes rather than seconds, because it sounded as if he has no recall of what happened between the collision and being outside the car and on the road’s grass verge with the paramedics attending to him. This could have been unconsciousness, or amnesia stemming from the shock of the collision. The claimant was adamant that he could not remember what happened during that time.
He says he does not recall the conversation with the insured driver, but their statements express the other making an exculpatory admission.
The ambulance report and hospital notes record a Glasgow coma scale score (GCS), which do not support him being knocked unconscious, but his evidence is consistent he was not able to comprehend what was happening after the accident for some minutes. He recalls he was treated for striking his head in the accident.
There was some legal argument about the questioning at this stage. The claimant left the room. It was at this point Mr Nesbeth’s stated the claimant’s credit was in question because he had given varying versions of the accident.
Questioning resumed with Mr Nesbeth asking about the third vehicle mentioned in the email The claimant sent his employer on 20 October 2020. This refers to the Swift seen on the CCTV video.
In the email he said the Swift had bumped into him and was damaged. He was fixed in that version, because despite recently seeing the video showing his vehicle being pushed into the Swift, he could not concede that was what happened.
The claimant admitted his most pressing concern was that he would lose his job because of the car crash. Mr Nesbeth put it to the claimant that his version of the accident was self-serving to appease his employer. The claimant denied that.
The insurer asked the claimant about why his fourth statement included a reference to having his indicator on, three and half years after the accident. Mr Nesbeth also said this was self-serving. The claimant talked about following his usual practice and having the indicator on.
I took the insurer’s questioning as addressing the claimant actual recall compared with conforming to his usual practice. His evidence about his indicator does not carry much weight as the insured driver made no reference to it.
The insurer questioned whether he agreed with the ambulance report at page 743 of the bundle that he was able to get out of his vehicle without help. The claimant disagreed with that proposition because people had to help him out of the car.
He does not have recollection about ambulance staff speaking to him, although the ambulance notes state there was a conversation while the claimant was still sitting in his car.
The claimant’s barrister Mr Bowen asked follow-up questions about photographs in the insurer’s earlier bundle, which showed close-ups of the damage inside and outside the claimant car. The claimant said he had not seen those photos before.
I had seen them when I viewed the insurer’s bundle, although they were not included in the final joint bundle. These photos confirmed the vehicle was heavily damaged when it was struck in the cabin area of the SUV. One photo showed the deployed airbag on the left-hand side inside the cabin. The outside photos show heavy damage suggestive of the strong impact. There were no other relevant questions.

Insured driver’s statement dated 19 April 2023[10]

[10] Quantumcorp Interim Factual Report dated 15 August 2023 attachment 5.

The insured driver had just turned 20 years old before the accident.
The car he was driving that day was a 2016 model white Commodore Ute with his lights illuminated.
The car was in good condition. There were no conditions on the insured driver’s provisional license.
He was alone in the car and there were no distractions. He says he was travelling at a constant speed before the accident with his foot off the accelerator and over the brake.
He had been using Stennett Road to go to and from work for about three months on the date of the accident. He recollects driving on Stennett Road and could see that it was clear except for an approaching four-wheel-drive car about 40 to 50m away.
His recollection is he saw that the car was stopped and waiting to make it turn across the insured driver’s path.
He does not say whether that car’s indicator was on, but he says the other car’s wheels were straight and then turned.
The insured driver thought it was going to wait, but it turned in front of him when he says he was between 10 and 15m away.
He says he hit his brakes.
His car contacted the four-wheel-drive clipping the back rear wheel and back tray area of the four-wheel-drive.
He only refers to the claimant as someone who apologised to him after the accident. He does not refer to his medical state or whether he was inside or outside the car.
The insured driver says he provided a version about what happened to the police when they arrived.
There is also an entry dated 26 June 2021 in the NRMA property damage file at page 203 of the final joint bundle submitted for the assessment. It reads as the insured driver’s version of how the accident happened. The note differed from his statement because he says he was driving at 50kmph before the accident happened, and struck the vehicle at 50kmph. It does not refer to any conversation with the claimant or to him braking or attempting to avoid the collision.

Insured driver’s statement dated 13 November 2023[11]

[11] Quantumcorp supplementary Factual Report dated 6 December 2023 attachment 1.

This statement only adds that when the insured driver turned the corner, he decelerated by lifting his foot off the brakes.

Insured driver’s answers to claimant’s questioning

Mr Bowen, the claimant’s barrister questioned the insured driver about the engine in his vehicle. His proposition was that it was a powerful motor, which was an upgrade from the motor normally provided with the type of vehicle he was driving. He also questioned the insured driver about his car tyres.
The insured driver was questioned on his report to NRMA property damages and his two statements. He confirmed that the white Ute was his regular work vehicle at the time. He is an electrician apprentice. He now drives a Toyota HiAce, which is a small commercial van
This was in respect of the accident car’s elevation and its field of vision.
The barrister also questioned the insured driver about his car in the accident having good handling and speed around corners. He was trying to set a comparison between the insured’s accident car and his current van.
The insured driver agreed that the version provided to the property damage insurer NRMA given the day after the accident would have been based on a stronger recollection than his statement in April 2023.
He told NRMA that the claimant’s Ute had stopped in the incoming traffic lane waiting to turn across his lane into the driveway.
He also maintained the claimant’s Ute was stopped in his April 2023 statement. However, during the questioning he changed that to stopped or moving very slowly.
The claimant’s submissions drew my attention to page 91 of the transcript, which reads:
“MR BOWEN: Yes now, you say at (paragraph) 25:
The four-wheel drive was stopped and waiting to make a turn across my path.”
I think we now accept that that’s not accurate you’ve told us that, in fact you didn’t stop that’s right?
MR RATH: Correct.”
Reviewing that, it appears in the transcript as “you didn’t stop” when it ought to have been transcribed as “it” or “he didn’t stop.”
He conceded that was because he had watched the CCTV. That altered the earlier perception of the insured driver’s evidence that the claimant began to turn when the insured driver was only 5 to 10 m away from him.
The Stennett Road approach travelling south is a left-hand bend with the road rising slightly towards the accident site.
The insured driver, who worked at the industrial estate for three months before the accident confirmed that when the factories and other businesses are operating the sides of the road are packed and it is hard to find a park.
The insured driver accepted during the claimant's questioning that from where he rounded the corner and could have seen the claimant’s car was about 78 m, based on the claimant's measurements and the Google Earth photographs with the investigator reports.
He agreed that cars parked closely on the left-hand side restricted his view as he approached the site. The insured driver said that when he came around the corner that his attention was on the movement of cars and trucks emerging from driveways and from their parking spaces on either side of the road. That was why he did not see the claimant’s Ute until he was about 40 to 50m away.
He also gave a version of the accident in his statement that he hit his brakes and clipped the back rear wheel tub area of the claimant car.
The insured driver agreed the CCTV showed a T-bone impact into the middle of the vehicle with force. He agreed the CCTV also contradicted his version that he veered left and applied his brakes.
Based on the lack of evasive action the claimant’s lawyer put it to the insured driver that he was probably travelling above the speed limit of 60 kmph, because he was travelling too fast to take action to avoid the collision.
I noted the insured driver agreed with the proposition that the speed he was travelling gave him insufficient time to react, but not that he was travelling above the speed limit.

Insurer’s evidence on negligence

The insurer notified the claimant of the insured driver’s evidence complying with rule 34(1)(a) of the Personal Injury Commission Rules (PIC Rules).
The insurer’s factual investigation assists me because it includes photographs of the vehicles, the accident site at various angles and overhead diagrams that show the layout of the accident site, and the direction of travel.
The claimant sketched and marked the accident site.
There is a note in the NRMA property damage file[12], which refers to an outbound call to a witness named Jacob. The note records that person’s observations about the corner and fault. I will not give that record any weight.
[12] Page 218 joint bundle.

Documents considered

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

Submissions

Insurer's summary

The claimant was an unreliable witness, and the insurer submits the claimant attempted to head that off by introducing evidence about his mental state.
The insurer contends the claimant either genuinely does not recall the incident or is adhering to an incorrect and self-serving contemporaneous account, despite video footage contradicting him.
The claimant's earliest account is more focused on keeping his job rather than a truthful account.
The claimant was not familiar with his company vehicle, and this contributed to the accident.
The insurer emphasised that the claimant was not recalling what happened but was basing his version on his experience as a driver and his "good situational awareness." Rather than recalling what happened he relied on his habits and past practice as proving he could not have turned unless he was satisfied the road ahead was clear.
Despite the video, and briefly conceding the video was a true picture, The claimant still insisted that he was partially into the driveway when the insured driver's car hit his car.
The footage demonstrates the claimant moving straight ahead before he turns right. It is a distinct phase before the turn.
Although the insured driver conceded he was not looking ahead the whole time this was because he was scanning the road being aware of other vehicles pulling out. This was prudent and reasonable in the circumstances. The insured driver was unshaken that he saw the claimant's vehicle about 40 to 50m away. He was paying attention and the reason he could not avoid the collision was because the claimant's action was sudden.
His being uncertain about whether he could have braked or veered to the left does not undermine his evidence.
The insured driver is a reliable and consistent witness and there is no reason he should not be accepted.

Breach of duty of care

The claimant did not establish the insured driver was driving at an excessive speed or established what would have been the appropriate speed in the circumstances that would have permitted him to react and slow when the claimant encroached into his path. He has not established that the insured driver failed to keep a proper lookout.
While caution needs to be exercised when interpreting footage, it is apparent that:
(a) the claimant has been grossly inaccurate; he commenced his turn within a second of the insured driver's vehicle coming into the shot, and
(b) the Swift leaving the premises stops at the end of the driveway waiting to make the left turn.
The insurer says it could be inferred that was because the Swift was not satisfied it was safe to proceed, because its driver could see the insured driver's vehicle was approaching.

Contributory negligence

The insurer submits if I find the insured driver breached his duty of care to the claimant, then the claimant is also guilty of considerable contributory negligence. He made a right turn across the insured driver's path when it was unsafe to do so. The insurer says that the claimant could have turned his vehicle "around somewhere safe in order to approach the driveway on the opposite side of the road".
The insured driver was driving below the speed limit, when the claimant encroached into his path, which gave him little opportunity to avoid the collision.
The insurer contends that the claimant contributory negligence would be 100%.

Claimant’s submissions

The claimant provided voluminous submissions. The following are the essential elements.
The evidence established that the insured’s documented evidence is either untrue or inaccurate and cannot be accepted. However, the insured accepted the following:
(a)    the baseline speed he was travelling, on his own evidence, was at least 55 kilometres per hour;
(b)    he accepted that the claimant’s vehicle was observable from a point at least 78 metres away from the impact zone;
(c)    the insured agreed that whilst travelling along Stennett Road, in circumstances where the claimant’s vehicle was visible to him, for a significant period, he was not looking ahead towards it, but looking to the left or otherwise distracted;
(d)    the insured agreed that he did not have time to react when he first observed the vehicle, as he stated both at hearing and to NRMA when making the claim;
(e)    the insured does not dispute that the claimant engaged his car’s indicator, and
(f)    the insured does not deny that the conversation said to have occurred by the claimant immediately following the accident took place, whereby the insured acknowledged that “he just didn’t see him in time and knew that he couldn’t stop in time.”
The evidence at hearing demonstrates two important factors. The first is that the insured’s evidence is unreliable and cannot be accepted, and the claimant’s evidence should be preferred.
The second is that the accident’s circumstances and the claimant’s unshaken recollection, that the road was clear when he commenced the turn, are borne out in the evidence. the insured was travelling, seated low to the road in his vehicle, along an uphill gradient, with a left-hand bend, with the line of sight ahead restricted, not only due to the bend, but the presence of parked cars. If the insured were travelling at high speed (i.e., higher than 55kmph), as he came around the corner, his vehicle would not have been within the line of sight of the claimant as he commenced his turn into 23 Stennett Road.
Regarding contributory negligence the claimant submits that I cannot rely on the insured driver’s evidence.

REASONS

Reliability of the parties’ evidence

The claimant

The insurer submits that the claimant genuinely does not recall the accident or has rigidly adhered to an incorrect and self-serving contemporaneous account of the accident given to his employer. The claimant conceded in cross-examination that he was concerned about his job continuing when he gave that version.
The claimant’s counsel submits the claimant is a dependable witness, whose recall may be woolly due to the impact the accident had on him, resulting in cognitive impairment. The medical material cited, the mentions in the statements, the harsh conditions he was living under after the accident as well as what he said at the hearing support the claimant being under severe psychological distress and in physical pain since the accident.

Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit, then a tribunal may – where the claimant’s mental injury or other relevant factors are part of the facts – consider whether these could impact on how that claimant gives evidence.
Accordingly, based on the evidence I am satisfied that it is possible in this case to allow that a lack of reliability or inconsistency could have been the product of the claimant’s psychological and physical conditions rather than an attempt to mislead.[13]
[13] See also Richelmann v McCabe [2024] NSWCA 37 [134]-[141].
The claimant said he had been an elite experienced driver, who had raced cars as a younger man and qualified as a mechanic. He had already been driving the vehicle at least 200km every workday since he joined his employer five weeks earlier.
This was his first accident, and he told me he had not committed even a traffic offence since he began driving in his youth. I have read his treating psychologist reports and other medicolegal evidence stating that his mental health struggles since the accident stemmed partly from his inability to deal with losing that spotless record. He lost his confidence, and some of his evidence about the accident relied on his conviction that he would not have departed from his usual practice on making the turn.
The insurer’s assertion that the email showed the claimant was inexperienced in managing an SUV has no weight, because I accepted him when he said he was experienced in driving SUVs, and he already had operated the particular vehicle for five weeks without incident.
However, I am not confident the claimant has a personal recollection of the accident. The examples provided in the insurer’s submissions at paragraphs 3.5 and 3.6 were typical when the insurer’s barrister questioned the claimant. He mixed assertive recollection with reconstruction. He would assert he had had an actual memory, but when he was questioned, he spoke each time spoken of his customary approach to driving:
“MR NESBETH: You said that the – you would not have made the turn into the driveway unless the road was clear. Just in terms of your language, are you assuming the road was clear, or do you remember the road was clear?
THE CLAIMANT: No, I remember the road was clear.
MR NESBETH: Why did you say I would not have turned unless the road was clear?
THE CLAIMANT: That’s my speak. I have good situational awareness. I’m an experienced driver. Unless the road was clear I would not have made the right-hand turn into the driveway.”
When Mr Nesbeth asked the claimant whether he had indicated before he started the turn, he responded; “As is my practice I give plenty of warning.…Because I would not have made a turn without indicating, that is not my custom” [pages 40 – 41].
When he was questioned how he could judge whether the insured’s car was speeding, he admitted that was not possible because he was not in a position to see but had based his assumption on the damage to his car (see email to employer on 20 October 2019). He spoke of working out the mechanism of the accident by where the damage was located on his car [page 26].
In his evidence he said, "In terms of being unclear the road was occupied by a lot of parked cars, but I would not have taken the negotiation of a right-hand turn in the driveway unless the road in front of me was clear." [page 24].
The claimant disagreed with the ambulance and hospital notes, which recorded he did not lose consciousness. He described a significant period where he lost recollection of the time from immediately after the accident until he was on the grass outside the car. I accept that he became unconscious, because the temporary amnesia and headaches after were consistent with that state. This may also be a factor in his recall being flawed.
The CCTV footage must be approached with caution. For a non-expert tribunal of fact, the best use is to “explicate the evidence or to determine which of the explanations given by witnesses appears to be most worthy of acceptance.”[14] This view cannot replicate the driver’s experience of the accident. This also applies to the video and photos the claimant uploaded to the portal shortly before this hearing.
[14] Port Macquarie Hastings Council v Mooney [2014] NSWCA 156, Beazley JA [47].
The CCTV footage shows the claimant’s car was still across the oncoming lane when the insured car struck the claimant’s car squarely in its middle. This is why it was described as a “T-bone” collision.
The CCTV video shows the claimant's car is across the oncoming lane when the insured driver is seen driving into the middle of the claimant's car. It shows the insured driver's car squarely in that lane without veering.
The photos of damage shown on the claimant’s vehicle also contradicted anything but a square hit on the side of the claimant’s car while it was across the oncoming lane, not on the driveway.
The claimant told the hearing he had seen the CCTV video, and he refers to it in his latest statement, but it was not played to him during this questioning. This was out of deference to the distress he still felt about recalling the accident.
While the claimant said he had seen the CCTV and hearing the questions about where the CCTV shows where his car was located when he was hit, he would still not concede that he could have been wrong about the position of his car on the road when it was struck.
He insisted that his car had moved onto the driveway apron when the insured hit him. During the insurer’s questioning he spoke of the CCTV as giving an “impression” he was still on the road, rather than conceding he was wrong.
His sketch for the factual investigator (on page 140 of the joint bundle) shows the collision point as being at an improbable position, considering the CCTV video. It shows a letter X marked as the collision point on "my vehicle", with the claimant car out of the oncoming traffic lane, past the parked cars either side of the driveway. Based on that version, the insured driver would have had to do a sharp left hand turn out of his lane to hit the claimant's car and could only have struck it on the right-hand side tray at an angle.
The question is – does the claimant’s evidence of his position at that point, being an "inconsistency with an incontrovertible fact"[15] – also mean I must discount his claim that he has an independent recollection that he was looking ahead to ensure the road is clear and saw it was clear before he made the turn.
[15] Fox v Percy [2003] HCA 22.
The claimant submits that where the claimant’s vehicle was placed is a minor point to the key issues in the proceedings. I do not accept that, because the accident could not have happened if the claimant had already reached the driveway because he would have been out of the insured driver’s way.
Although relying on a witness’s usual practice as evidence of how an incident happened should be treated with caution, it could be a part of the evidence matrix.
However, although the claimant is positive that he would never have turned if there was a car on the road in front of him, his inability to accept the CCTV evidence showing otherwise makes it difficult to accept that. He relies on his usual practice, and his “situational awareness” to support what he alleges happens, when the CCTV shows differently. His status as a normally careful driver with a spotless record does not offset how wrong his accident reconstruction and recollection is.
Even allowing for how the claimant’s mental suffering impacted how he gave evidence; it is hard to accept the claimant’s version as otherwise accurate.
I am not satisfied he consciously fabricated a self-serving version of the event, but he has come to a view and cannot concede that he is wrong.
However, although the claimant’s demeanour in the assessment was courteous, firm, and forthright, I find the claimant’s evidence is unreliable without corroboration because it appears he is reconstructing what happened. I prefer the view given in the CCTV view, the maps, and overhead views of the accident site, as well as the insured driver’s version ultimate version about what happened.

The insured driver

The claimant’s submissions is that I cannot accept the insured driver due to inconsistent and disordered accounts, and the insurer says he is reliable.
I agreed with the claimant’s proposition that the CCTV footage demonstrated the insured’s evidence contained numerous inconsistencies that needed correcting, including:
(a)    that when he first saw the claimant’s vehicle it was stationary and waiting to make a turn across the road;
(b)    that the turn happened when the insured was 10 to 15m away from the claimant;
(c)    that the insured veered to the left and hit his brakes, and
(d)    that the insured’s vehicle “clipped the back rear wheel and tub area of the claimant’s vehicle”.
On point (a) the CCTV shows that BKV approached the driveway slowly but was moving at all times it was in the screenshot.
Point (b) follows point (a). The vehicle began turning without stopping when it reached level with the driveway. However, the insured driver said he was 5 to 10m away from the claimant when that happened.
On point (c) there is enough of the CCTV to show the front of the insured car did not dip, which could indicate there was attempt at braking. It hit the car squarely midway between the bonnet and ute tray. the insured driver conceded in questioning that after viewing the CCTV he accepts he did not apply his brake or attempt to veer.
Point (d) is contradicted by the CCTV and photos of the damage to the claimant’s car, and the insured driver conceded that.
I did not agree with Mr Nesbeth’s proposition that the insured driver could have seen the claimant’s car in a stationary position before he arrived at the CCTV view area. It is unlikely the insured driver could see the car based on the photos of the site and maps provided. These showed the cars heavily parked on both sides on the approach, the left turn the insured driver was approaching just outside the premises, and the CCTV view.
The insured driver gave evidence that he frequently travelled on this road at that time of the day, because he had been working in premises on the industrial estate for three months before the accident. This was the beginning of his commute home, so he appreciated that it was usual to have cars parked closely on either side as he approached the accident site. It was also a time when other vehicles were commencing their commute.
He was also conscious that the approach to the site required him to negotiate a left turn and a gradual rise up to the crash site.
He says in his 2023 statement he was travelling at 55 kmph, but the day after the accident he also told NRMA that he did not have enough time to react or brake and T-boned the vehicle at “50km/h”.
He agreed in questioning that 78m away (based on the claimant’s investigations) was the approximate point where he could have been visible to a driver in the claimant’s position.
The insured driver admitted in questioning he did not take evasive action, despite what he told NRMA and put in his 2023 statements.
The insured driver spoke though as if he was recollecting what he experienced and what he did. The willingness to concede he could be incorrect was realistic, and he was consistent about what he says he saw the claimant’s car do as he approached that car.
His demeanour was courteous and open.
Uncertainty over where the insured car hit the claimant’s car occurs with other witnesses too, because the insured driver's and another witnesses’ recollection recorded in the investigation notes about the collision point on the vehicle differed from what is shown on the CCTV.
I accept find the insured driver's evidence is only unreliable in some respects but is generally able to recall the events of the day.

Conversations between the parties

The claimant says that the insured driver said to him immediately after the accident that he did not have time to take any action because he did not see him soon enough. He conceded as much in questioning.
The insured driver says the claimant apologised to him. The claimant denies having a conversation with the insured driver.
I do not intend to give these conversations any weight to resolve the question of fault.

Speeding

The claimant alleges that the insured driver was driving too fast for the conditions’ and that he may have been driving above the speed limit. In respect of speed, the parties have provided me with calculations, which are set out in the table in the claimant’s submissions.
By the insured driver driving too fast for the conditions, I understood the claimant alleges that he checked the road ahead, saw the road was clear and commenced his turn, and the reason he did not see any approaching vehicle, and the insured driver collided with his car at a right angle–was because the insured driver was driving so quickly that he rounded the corner and covered the 78m, which the insured driver accepted as the distance he would have been visible, as soon as the claimant shifted his attention to entering the driveway.
The insured driver’s explanation is he was driving at either 50 kmph or 55 kmph, under the speed limit. He describes the claimant turning across his path when he was so close that no matter what the speed was, he could not have braked or avoided the collision.
The insured driver accepted under the claimant's counsel’s questioning that the point from where he rounded the corner and could have seen the claimant’s car was about 78m away, based on the claimant's measurements and the Google Earth photographs with the investigator reports. He said in his statements that he did not see the claimant's car until he was about 40 to 50m away.
The table in the claimant’s submissions show that the insured driver travelling at 50 km an hour would have had approximately another two seconds to react to the claimant’s presence as soon as he rounded the corner.
On watching the CCTV, and the insured's evidence that he did not have time to brake or take evasive action raises the probability he had not noticed the claimant's vehicle until it was too late to take any measures. This was a function of moving too fast to pay attention to what was ahead of him as well as watching for movement around parked cars and from driveways in that area, which is what he said he was doing up to that point. His time to become aware and react was reduced.
However, the claimant’s exposition about the insured driving above the speed limit is speculative.
The insured driver has explained that the claimant turned in front of him when he was a short distance away and that was too close to allow him to avoid the collision.
It is axiomatic that the insured driver is not required, to know or predict every event which happens in his vicinity to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) stated in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be able to know what is happening or might happen in the vicinity of the vehicle.
However, the insured driver was familiar with the area, and both witnesses and the photos I have seen supports a scene where every work day vehicles are closely parked, with cars and trucks frequently moving into and out of premises and on the roads.
The parties have provided authorities from running down accidents around schools, and at the conclusion of the work day the area would be analogous to the roads outside a school in terms of movement. The insured driver had been experiencing that for three months.
A reasonable driver having experienced those conditions would adjust his driving to allow for those conditions. Around schools the mandated speed limit during the morning and late afternoon commute is 40 kmph. Driving between 50 kmph and 40 kmph would have added another second to the insured driver’s reaction time.
While the insured driver was not required to drive so slowly that he could avoid any vehicle which might turn in front of him when he was only 10 to 15m away from passing that vehicle, he was expected to drive slowly enough to allow him to appreciate what was happening on the road in front of him as far as he could see.
The insured driver was not shaken in his assertion that he was travelling below the speed limit. In the circumstances though, he was still travelling too fast for the conditions, because it was at a speed where he did not have enough time to perceive the claimant’s car, anticipate that it may turn and take any action.
I find that the insured’s speed was a factor in causing the accident, because it was a factor in not being able to keep a proper lookout towards the claimant.

Manner of driving

The claimant alleges the insured driver was driving unsafely in the circumstances.
This relates to claimant’s allegation the insured driver failed to apply the brakes on his vehicle when it appeared the claimant would turn right and failed to use the brakes on his car soon enough to avoid the collision;
He says that he could not brake when it looked like the claimant was going to turn because the claimant began his turn when the insured driver was already too close for him to begin using his brakes.
He was driving a conspicuous car, so he was doing as much as he could to alert other drivers of his presence.
Apart from his speed, which reduced his ability to see what was in front of him at least for 20m past the corner there is no other evidence about the insured driver’s manner of driving.

Findings on negligence

It is not a matter of finding one party is dishonest or wilfully misleading, but I must be satisfied one case is more likely than the other case. Both drivers have provided versions with inconsistencies about how this accident could have happened.
A reasonable driver in the insured driver's circumstances would have done the following:
(a)    ensured his car was visible to warn other road users;
(b)    remained on the left-hand side of the road;
(c)    being familiar with the traffic conditions at the industrial park driven at a speed that would have allowed him to see the claimant's car ahead of him when he cleared the corner, as well as well as check movement around the parked cars and driveways.
The insured driver had his headlights on in his white car, which made the car conspicuous. In the circumstances I find that was sufficient to warn a reasonable driver checking the road ahead and approaching from the opposite direction.
The insured driver remained on the left-hand side of the road.
The insured driver had driven daily in that area for three months and was aware that cars and trucks were closely parked, entering, and leaving driveways and passing each other on that road.
Based on the insured driver's evidence, I accept he did not see the claimant's car until he was already at least 20m past the point where the claimant's car would have been visible if he had been looking ahead.
The insured driver told the hearing he did not see the claimant's car until that point, because he was also paying attention to movements around the cars parked on either side of the road and from driveways entering the road.
It is agreed that the insured driver would have a little under three seconds to react when he says he was able to see the claimant's car travelling at the speed, he says he was driving at, being either 50 to 55 kmph.
At that speed he did not have sufficient time to see the claimant's car, assess the scene and anticipate the claimant was about to turn. He did not have enough time to attempt to apply his brakes or steer his car around the claimant.
As the CCTV shows the claimant moving slowly straight ahead before turning, it is reasonable to infer that if the insured driver had been driving at a speed that allowed him time to see the claimant and appreciate other hazards, he would have been able to anticipate the claimant was about to stop or turn.

In those circumstances, the insured driver was not keeping a proper lookout. I find that this was a breach of duty of care to other road users, which resulted in injury to the claimant.

Findings on contributory negligence

A reasonable driver in the claimant's circumstances would have done the following:
(a)    approached the anticipated turning point slowly;
(b)    stopped to ensure the road ahead was clear;
(c)    stayed on the left-hand side of the road until he could see the road was clear; and
(d)    avoided turning and given way to any oncoming car before turning.
Based on the CCTV, I find the claimant approached the turning point slowly.
He did not stop. I find that the claimant failing to stop before he checked the road ahead was unsafe, because it did not allow him time to sufficiently check the road ahead to see if it was clear. If he had stopped, he could have seen the insured driver approaching.
Although, the insured driver recanted in part from his previous statements and conceded the claimant's car had not stopped before it turned, he consistently held that the claimant's car was facing towards him as he approached.
The claimant says that he would have checked the road ahead was clear, but he relies on reconstruction and his habits, rather than a recollection of what he did that day.
The insured driver was driving a conspicuous car that would have been visible to a normally sighted person looking ahead.
I am satisfied the claimant did not see the insured driver and failed in this circumstance to keep a proper lookout.
The CCTV video showed the claimant's car turning slowly and pausing when the Swift emerged.
Based on the insured driver's evidence, I am satisfied that the claimant's car turned across the insured driver's path when he was only 10 to 15m away.
This was too close to allow the insured driver to react and avoid the collision and was unsafe for the claimant and any oncoming road user.
He did not give way to the insured driver, as a reasonable driver in the circumstances would have done, and in breach of the NSW Road Rules.
I find that the insurer has satisfied the onus of proof to establish contributory negligence.
Although, I am satisfied that the insured driver’s negligence from driving too fast to keep a proper lookout has injured the claimant I find the claimant’s contributory negligence has contributed to his own damages. Part 1A Division 8 of the CL Act and s4.17(3) of the MAI Act are the applicable Acts.
The insurer has urged me to apply a 100% discount, as allowed under section 5S of that Act if it is just and equitable to do so.
The leading Australian case addressing the principles of contributory negligence continues to be Podrebersek v Australian Iron & Steel (1985) 59 ALR 529.
That authority requires me to assess the relative culpability and causal potency of the parties’ acts and omissions.
As this was a driver/driver accident there is a balance in causal potency, rather than disparity in elements of control as in a passenger claim.
The claimant’s relative culpability in the accident, particularly as an experienced driver, is considerable, but it is not total, as the insured driver was familiar with the road and surrounds. This enabled him to have a higher appreciation of possible hazards and the need to look ahead as he rounded corners in the industrial park.
50% for contributory negligence is the appropriate amount in those circumstances.

Assessment of damages summary

I have found that the claimant has proved that the insured driver breached his duty of care under sub-section 7.36 (1) (b) of the MAI Act. I am required to assess the amount of damages that a court would be likely to award if the claimant had proved the insured driver’s negligence.
In this case I adopt the agreed damages in this claim, which in my estimation would satisfy s 6.23 of the MAI Act, as follows:

Economic losses
Non-economic loss Past loss of earnings	$320,000 $127,270
Past superannuation	$14,000
Fox v Wood	$3,730
Future economic loss	$52,747
Future superannuation	$7,253
Total damages	$525,000 discounted by 50% to $262,500.

Costs and disbursements

The insurer has made no costs submissions. I will allow costs for stages 1 to 3 under the regulation. Disbursements may be agreed between the parties.
I allow four hours for conferences for the assessment conference.
Accordingly, subject to the parties making further submissions regarding errors in calculation, I assess the claimant’s legal costs in accordance with Part 8 of the MAI Act and the Motor Accident Injuries Regulation 2017 at $31,813.10 including GST.

Publication

Section 58 of the Personal Injury Commission Act 2020 (PIC Act) requires the Commission to publish its decisions.
Rule 132 of the PIC Rules though allows for directions to de-identify the decisions to preserve claimant’s privacy.
I noted that the claimant is a vulnerable person because the accident has impacted adversely on his mental health. To reduce stress and unqualified people discussing the claimant’s outcome I direct that this decision be de-identified.
The parties have agreed to this direction.

CONCLUSION

In accordance with Division 7.6 of the MAI Act, the Commission’s assessment is:
(a)    on the issue of liability for the claim; the insured driver owed a duty of care to
the claimant, and breached that duty of care, and the claimant’s contribution to the injury, loss, and damage was 50%;
(b)    the amount of damages assessed for the claim is $262,500, and
(c)    the claimant’s costs in the matter are calculated inclusive of GST at $31,813.10 including GST.

[2024] NSWPIC 325

21 June 2024