Blakeney v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Blakeney v QBE Insurance (Australia) Limited [2022] NSWPIC 148
CLAIMANT:	Jordan Blakeney
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Elizabeth Medland
DATE OF DECISION:	5 April 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment matter; whether the insurer is entitled to reduce payments of weekly statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017; insured driver reversing from a driveway on King Georges Road, Hurstville NSW; driveway situated after a crest in the roadway; claimant was driver of a vehicle travelling over the crest causing a collision with the insured vehicle; claimant lost control of his vehicle and collided with the rear of a stationary truck; question as to whether the claimant was speeding; whether the claimant acted as a reasonable person ought to have in his situation, pursuant to section 5R of the Civil Liability Act 2002; found that the insurer had not discharged its onus to establish contributory negligence; Held- the insurer is not entitled to reduce payments of weekly statutory benefits; no finding of contributory negligence made
DETERMINATIONS MADE:	1. For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident. 2. Effective Date: this determination takes effect on 2 November 2020. 3. Legal Costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,710 inclusive of GST.

Reasons for Decision

Issued under section 7.365 (5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a dispute between the parties as to the reduction of statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017.

Mr Jordan Blakeney (the claimant) was injured in a motor vehicle accident occurring on 2 May 2020. He was the driver of a motor vehicle that was involved in a collision in Hurstville NSW.
The claimant subsequently lodged a claim for statutory benefits with the insurer of the vehicle deemed to be at fault.
It is apparent the claim was accepted and statutory benefits were paid, however, by way of notice dated 7 May 2022, the insurer denied liability for ongoing statutory benefits after 26 weeks. The insurer asserted that the claimant was wholly at fault. In the alternative, the insurer asserted that contributory negligence should be assessed at 70%, thereby making the claimant mostly at fault.
The claimant requested an internal review of that decision. The internal review concluded that the contributory negligence amounted to 50%. Presumably, payments of weekly statutory benefits have been reduced by 50% from 26 weeks post accident.
The claimant subsequently lodged an Application with the Personal Injury Commission (the Commission). The dispute has been allocated to me for determination. There was some delay as the matter was not initially set for a teleconference.
At the teleconference held on 23 February 2022 both parties agreed that the matter is appropriate to be assessed on the papers. The insurer’s representative indicated that some further material may be relied upon from the NSW Police which remained outstanding. However, subsequent communication confirmed the insurer wished the matter to be determined in the absence of same.

Documents considered

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

Legislative framework

There is some suggestion in the submissions for the insurer that the claimant had referred the dispute as a “claims” matter. However, I have reviewed the claimant’s application form and the dispute has been appropriately classified as a miscellaneous claims assessment matter. Specifically, a dispute as to the amount of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act). This is deemed a miscellaneous claims assessment matter by schedule 2, clause 3(g) of the MAI Act.
Section 3.38 of the MAI Act provides relevantly as follows:
“(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.
…
(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence –
a.If subsection (4) requires the statutory benefits be reduced by a fixed percentage – by that fixed percentage, or
b.By such percentage as the parties agree, or
c.In any other case – by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.”
In considering whether a finding of contributory negligence should be made, section 5R of the Civil Liability Act 2002 applies. It provides as follows:
“(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of harm.
(2) For that purpose –
a.The standard of care required for the person who suffered harm is that of a reasonable person in the position of that person, and
b.The matter is to be determined on the basis of what that person knew or ought to have known at the time.”

Circumstances of accident and summary of evidence

The NSW Police report contains the following summary of the motor accident:
“About 11 35 on Saturday the 2^nd of May 2020 VEH1 was travelling in lane 1 of 2 in a south-easterly direction on King Georges Road, Hurtsville VEH2 was reversing out of 37 Hillcrest Avenue, Hurstville and positioned stationary in Lane 2 of 2 on King Georges Road
VEH1 has then noticed VEH2 completing his reverse and slammed on the brakes, however du to his speed, his brakes locked up and consequently collided with the front nearside of VEH2
VEH1 has then continued to loose control, slamming into VEH3 that was stationary at the traffic lights.”
The driver of VEH1 was the claimant and the driver of VEH2 was the insured driver.
The police report notes VEH1 (the claimant) to be the vehicle at fault.
Both drivers have a negative alcohol breath test recorded in the report.
The Application for Personal Injury Benefits (claim form) dated 2 May 2020 contains the following version of events from the claimant:
“I was driving up a hill at 60km on King Georges Rd. in the left lane heading to Sutherland Cemetery. When I reached the top of the hill there was a car making a turn out of Greenbank St. The car was hanging into my lane. I indicated, and tried to swerve around the car. I then lost control of my vehicle and slid down the hill into a parked truck at a red set of lights at the corner of Hillcrest & Kind Georges Rd.”
The insurer commissioned Brooksight Investigations to investigate the accident. Before me are two reports of Brooksight dated 25 June 2020 and 30 March 2021.
Brooksight interviewed the claimant via videoconference on 18 March 2021. The transcript of that conference is before me. The claimant relies on this transcript.
The investigators asked the claimant a number of questions regarding his driving history and criminal history. The claimant states he had lost his licence due to travelling 10 km over the speed limit and not displaying his “P” plates. He also refers to receiving penalties for running red lights a “couple of times” and “stuff like that”. The claimant also refers to criminal charges relating to supply of an illicit substance.
The investigators continued with this line of questioning and the claimant appears to be quite forthcoming with details. It is not clear whether there has been a conviction however he did spend some four months in Silverwater correctional facility. The claimant does go on to reveal a further criminal matter relating to cannabis being found in his vehicle after being pulled over by police. This occurred when he was around 20 years old.
The claimant then goes on to admit to being recently admitted into a rehabilitation facility and is currently suffering from poor mental health. After revealing this, the investigators enquired whether in such circumstances the claimant was alright to continue. The claimant states in reply: “I – I would like to think that I’m still sane enough to answer your questions. I’m trying to be as transparent as possible with you”.
In terms of previous accidents the claimant refers to a previous accident in 2016 when he was T-boned at an intersection when the other vehicle failed to stop at a stop sign. He states he was not injured in the accident and did not lodge a claim for benefits.
In relation to the subject accident the claimant explains that it was a traumatic experience for him and his partner. He describes the incident being cloudy to him but he believes he has a fairly solid recollection of what happened prior.
His partner and he were on their way to a memorial and he describes the accident relevantly as follows:
“…there’s a couple of really big slopes, big curvy hills. As I came up the top of one of these hills, as I came over the crest, I - look, I wouldn’t know if it was -
I know there was a small road on – on the left-hand side. I don’t know if it was a car coming out of the road or if it was a car coming out of a driveway. But as
I came up the – onto the crest of the hill, there was a car that had, I – I think, reversed out across my lane. I was on the – the inside lane.
I feel like it – they came out pretty abruptly. It was sort like I’d – as soon as I’d - as soon as it was too late, they – boom, in front of me. So, I – it – it wasn’t really too late, I – I guess. I – I slammed on my brakes. I indicated over to the right lane. I did not hit that car, thank God, because I think if I did, my partner probably would have been killed. So, after I’ve sort of swerved around, or I don’t even know how I got around this car, I lost control of my vehicle coming down the other side of the hill. It felt like I was sliding. I don’t really know, but I just –
I was – I had my foot on the brake, and it just didn’t feel like I was - it was doing anything. And, there was a truck parked at the bottom of the hill. And, I believe that was the Greenbank intersection. I think that’s what the street’s called. And, there was a red traffic light and a truck parked at the bottom of the hill. And,
I just collided straight into the back of the truck…”
When asked by investigators what speed he was travelling at the claimant states “50 or 60”.
The claimant also confirms that there was nothing obstructing his view when travelling towards the crest/hill. He also denies an allegation of a witness who describes the claimant as speeding.
In relation to damage to his vehicle the claimant describes that it “…felt like the hood was sort of just crushed in”. The claimant also does not recall seeing his vehicle again which was written off through insurance.
The claimant goes on to describing getting out of his car to check on his partner. He references laying on the ground next to the road and recalls being breath tested by police. There is then a description of injuries and his experience at the hospital after being transported via ambulance.
The claimant also describes his partner’s injuries which apparently may include some brain damage including memory loss.
Investigators obtained a statement of the insured driver, Mr Constintine Noanoa (the insured) dated 22 June 2020.
The insured describes having had his licence suspended on at least one occasion due to an accumulation of demerit points for speeding and proceeding through a red light camera.
The insured describes his vehicle being parked in the driveway of his home situated at the corner of Hillcrest Avenue and King Georges Road.   The vehicle was parked front in and describes entering the vehicle and beginning to reverse at an estimated speed of less than 5 km/h. He goes on to describe the accident relevantly as follows:
“25.   I checked my left side over my shoulder and the road was clear, so I started to reverse out slowly to the point where I the back of my ute was still in my driveway. [sic] I then checked my left side again and the road was clear.
26.    As I live on the corner of Hillcrest Avenue and King Georges Road, there are traffic lights at the intersection. As I was reversing I saw a large truck and a car stationary at the traffic lights.
27.    There were no cars on my left so I reversed onto King Georges Road Hurtsville and I would estimate I had passed lane one and I was into lane two when all of a sudden a BMW travelling from my left had approached the top of the crest and impacted with the front left headlight.
28.    I don’t know which lane the other vehicle was travelling in at the time of the accident because I did not see him coming.
29.    I believe the other driver was certainly speeding at the time of the impact and I say this because the other car came past me very quickly and looked like a flash of light.
30.    The other car continued on King Georges Road and impacted very heavily with the rear of the truck which was stationary at the red light on the intersection of King Georges Road and Hilcrest Avenue Hurtsville.
31.    I did not feel much of an impact from the collision and I would describe it as a little wobble.”
Later in the statement the insured describes his check of the road before entering the roadway as “comprehensive” to ensure everything was clear before reversing and the process takes approximately 30-60 seconds.
The insured also states that he only reverses from his driveway when the traffic signals are red at the intersection of Hillcrest Avenue and King Georges Road as it is too risky to reverse during any other time.
Investigators also conducted an interview with NSW Police Officer, Constable Alyse Egbers. The transcript of such interview of 19 June 2020 is before me.
Constable Egbers notes that the claimant states that he was travelling at the legal speed limit, however a witness suggested that the claimant was going “quite fast”. The Constable then states that of course they cannot determine speed and that,
“technically because the driver was reversing out of a driveway, he is technically at fault. For an incident that would happen, with a vehicle reversing out of a driveway, it’s his responsibility to make sure that it’s clear from oncoming traffic because this car here has the right of way.”
The Constable notes that they technically cannot determine speed and that is not a factor. She also states that the police determined that they could not deem anyone at fault, noting that the insured “technically couldn’t see what would be coming over that crest, so he’s got to make a determination whether he’s going to go or not”.
The Constable described the insured’s driveway being placed in a dangerous position where it is as “silly” noting that one could not determine whether a vehicle is coming over.
A version of events taken by police from the insured was read by the Constable. The insured describes reversing from his driveway onto King Georges Road when the claimant “flew over the hill from the righthand side”. He also goes onto to describe the claimant as speeding down the left lane and scrapping the front left hand side of his vehicle.
He also states to police that he was stationary and about to go into first gear and straighten up to go straight. He confirms that he did not see the other vehicle when he reversed his car.
The police also obtained a notebook statement from the insured. He describes to police coming over the hill and he thinks he saw a car reversing and he slammed on his brakes and they seemed not to work and he went straight into the back of a truck. When asked what speed he was travelling at the claimant stated that he believes he was doing the speed limit and that he thought the limit was 60 km “maybe”.
The claimant told police that he did not know what lane he was travelling in. It was noted by police that the statement was taken soon after the accident and the claimant was still in quite a lot of shock.
A version was also taken by police from the driver of the truck that the insured collided with. However, there is no detail provided by him that is helpful as he was not aware of the accident until he felt the impact with the back of his truck.
The police also obtained a notebook statement from a witness, Mr El Debel. His version is as follows:
“I was driving northbound on King Georges Road in Hurtsville after turning left from King Georges, umm, from Hillcrest Avenue. I heard a car ahead of me accelerating hard. I could hear it from far away so I thought to myself that it must be going quick. I then saw a white AMG with black rims fly over the crest. I saw the suspension on the vehicle lock, I mean lack, and it looked like got airborne.

I saw a reddish car in the second lane and then heard a loud bang which I thought was the AMG coming back to the ground. I then saw the AMG in the left lane travel at speed into the back of the truck. I then called my dad and returned to the accident, but the police and ambulance were already there. I was very surprised when I returned that there was no skid marks on the road which makes me believe the driver of the AMG did not apply his brakes until after he hit the first car.”
After the Constable read out the above version, she then confirms that the police still cannot determine the speed of the claimant’s car. She notes that the claimant’s vehicle was badly damaged and that he was probably going at speed but they cannot determine what speed that was. However, it is then stated that the speed limit is 60km/h and even at that speed there would be quite a lot of damage.
When police spoke to the claimant’s partner she confirmed that she cannot remember anything from the accident.
The first investigation report of Brooksight includes a number of photographs of the subject roadway. There are a series of photographs taken of King Georges Road from a south easterly direction (the direction of the claimant’s vehicle). The photographs are taken from just off the side of the road approximately every 10 m from 100 m back from the point of impact. The photographs also depict the insured driver’s driveway.

Submissions

Claimant’s submissions

The submissions of the claimant’s counsel, Mr Morgan firstly point out various quotes from the interview with Constable Egbers that call out the dangerous layout of the insured’s driveway in the context of the crest. It is highlighted that the police considered the position of the driveway as dangerous and that a driver would not be able to see a vehicle is coming over the crest.

The submissions also highlight the fact that police confirm that because the insured was reversing out of his driveway it was his responsibility to ensure the roadway was clear from oncoming traffic.
It is submitted on behalf of the claimant that the above is consistent with Rule 71 of the Road Rules NSW, which requires a vehicle entering a road from a road related area to give way to any vehicle on the roadway.
The claimant submits that the insurer has the onus in establishing contributory negligence, and the allegation rests upon it being established that the claimant was speeding. It is submitted that it cannot be found the claimant was speeding. It is noted that the claimant denies he was speeding, and the insured did not see the claimant coming.

In respect of the version of events of the witness, it is submitted that no weight should be attached to same as it is “third-hand hearsay”. It is submitted that such evidence would be inadmissible in any court and in any event procedural fairness principles are that it should not be relied upon as a reliable or probative basis for fact finding to a dispute as to the speed of the claimant’s vehicle.
With reference to section 5R of the Civil Liability Act 2002, which sets out the test for a finding of contributory negligence, a reasonable person in the position of the claimant:
was entitled to abide by the sign posted speed limit on a major road like King Georges Road;
did not know and ought not to have known of the configuration of driveways up and down that stretch of main road;
did not know and ought not to have known that the insured’s driveway was in a “silly” or “dangerous” location as described by Constable Egbers;
was entitled to think that someone in the insured’s position would exercise extreme caution and care to quickly and safely perform this manoeuvre, if he was to use this driveway at all given its precarious position, and
was entitled to think he would have the right of way dictated by the road laws.
On the basis of the above it is submitted that the insurer has not discharged its onus, and the claimant ought not be found in all the circumstances guilty of contributory negligence.
In the alternative, if there is to be found that contributory negligence is established, it is submitted that a “just and equitable” percentage would be 10%. In this regard, the case of Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (Set out the submissions made by the insurer).

Insurer’s submissions

In respect of the issue of speed, the insurer submits that the Commission is not bound by the rules of evidence and accordingly the evidence of a witness suggesting the claimant was speeding should be taken into account.
The insurer submits in response to the claimant’s submission that a reasonable person would not be expected to know the configuration of the driveways after the crest in the road, that a large sign warning of traffic lights ought to have placed the claimant on notice of potential hazards. It is submitted that a reasonable driver in the claimant’s position ought to have slowed, and been on notice of the possibility of banked up traffic.
The insurer goes on to make submissions as to the distance. In this regard, a google image is included, purportedly depicting the approximate distance from the crest of the hill, until the insured’s driveway. It is said that the distance is approximately 67 m.
The submissions then include a photograph from Google Street View at a point where it is submitted the crest flattens. It is submitted that the claimant would have had a clear view at this point down the roadway and towards the traffic lights. The image includes a vehicle in the lane closest to the kerb. It is submitted that it appears there was no vehicle in front of the claimant at the relevant time and therefore the view would have been clear.
A further google image is included and it is submitted that on the basis of such image with a distance measurement “confirms” that the distance between Greenback Street (where it is submitted the crest flattens out) and the set of traffic lights at the intersection of King Georges Road and Hillcrest Avenue, is 102 m.
The insurer notes the claimant collided with a truck stationary at the lights. It is submitted that the claimant not only collided with the insured vehicle but continued forward and collided with the truck. It is submitted that this suggests the claimant was travelling at speed and failed to adapt his control of the vehicle in the face of possible hazards ahead.
The insurer submits that the insured vehicle was well onto the roadway when the claimant was first able to sight the vehicle. In support of this submission the insurer refers to the claim form where the claimant notes that when he reached the top of the crest there was a car “hanging into” the lane.
The insurer also notes that police state that the insured reversed out of his driveway “and then” the claimant’s vehicle came over the hill. It is also noted the insured states he had manoeuvred onto the roadway and was correcting his turn when the collision occurred.
The insurer notes the claimant’s submissions that the insured was in contravention of rule 74 of the Road Rules. The insurer submits that such Rule is applicable only up to the insured vehicle having entered the roadway. It is then submitted that the claimant was in contravention of Road Rule 126 requiring a driver to keep a safe distance behind a vehicle travelling in front of the driver.
In respect of the claimant’s vehicle the insurer notes that it is a Mercedes A250 Sport AMG, which is a high performance vehicle fitted with anti-lock braking system. It is then submitted that,
“on balance, it is not unreasonable to conclude that had the claimant been travelling at the speed limit, with a clear 67m of roadway in front of him, and engaged this braking system when the insured’s vehicle came into view, his vehicle would not have collided with the insured’s vehicle.”
It is submitted that the claimant describing his brakes having locked up “strongly suggests” that the claimant was travelling at speed.
In support of its position, the insurer relies upon the case of O’Neill v Liddle [2012] NSWCA 267. The Court of Appeal upheld a trial Judge’s finding of 55% contributory negligence. In that case the injured claimant drove contrary to a traffic control signal, into an intersection and collided with the defendant who had right of way. It was determined that even though the defendant had right of way, he nevertheless had time and space to avoid the collision.
On the above basis, it is submitted that a finding of 50% contributory negligence could be made, however, it would be open for the Commission to award a higher deduction.
There is also a submission as to the claimant’s credit on the basis that the claimant is currently facing charges relating to supply of illicit substances. The insurer submits that the claimant “appears to have attempted to downplay the severity of those charges, notwithstanding the fact that he has already spent 4 months in goal in the post-accident period, whilst awaiting sentencing”.
It is also submitted that there are inconsistencies in the claimant’s evidence. In this regard, it is noted that the claimant states there was no collision with the insured vehicle when the evidence suggests otherwise.
The insurer therefore submits that the claimant’s evidence should be treated with caution given the inconsistencies in his statement and the fact that he declined to be formally interviewed by police at a later stage.
It is submitted that the claimant has failed to provide independent statement in support of the application. Instead there is a reliance on the transcript of interview conducted by the insurer’s investigator. The insurer suggests this is in contravention of Procedural Direction PIC9.

Reasons

Section 3.38 of the MAI Act is a disentitling provision. It is the insurer’s onus to satisfy me that the insurer is entitled to reduce payments of weekly stationary benefits on the basis of contributory negligence.
I am not satisfied by the evidence before me, that the insurer has discharged that onus. I make no finding of contributory negligence.
Dealing with the insurer’s submissions I outline my reasons below dealing with each point raised by the insurer.

Claimant’s statement

I do not accept the insurer’s submission that Procedural Direction PIC9 has not been complied with. This is due to a signed statement not being provided, but instead a transcript of an interview between the claimant and the insurer’s investigator.
I assume that the insurer relies on point 44 of such Direction. It states as follows:
“A party proposing to rely on oral evidence of a witness must lodge and serve a signed statement or expert report from the witness at the commencement of proceedings or in a late document (see rules 34(1) and 35(1). The rules provide for limited circumstances in which oral evidence may be tendered form a witness who has not provided a signed statement (rule 34(3)).”
There has been no proposal to rely upon the oral evidence of the claimant. The Practice Direction therefore does not apply, and nor does the corresponding Rules of the Personal Injury Rules 2021.
I find the transcript of interview to be sufficient to set out the claimant’s version of events. Indeed, the candid nature of a transcript is likely to have been more of assistance than a prepared and edited statement.

Credit issues

I do not accept the insurer’s submission that the evidence of the claimant ought to be considered with caution. Whilst not directly submitted that criminal charges deem the claimant unreliable as a witness, the insurer has taken the time to set out in detail the claimant’s charges relating to illicit substances. From the material before me, charges have been laid. I have no evidence of any conviction.
Furthermore, I found the transcript of interview to suggest a very frank and honest account of the claimant’s recollection. He was very forthcoming regarding the above issue and his driving record.
I do not accept that there is sufficient evidence for me to consider the claimant an unreliable witness.
The insurer also submits that the claimant’s evidence is inconsistent. Specifically, the insurer notes that the claimant alleges he did not collide with the insured vehicle. However, the evidence suggests that a collision did in fact occur and the NSW Police Report records such a collision.
Whilst the evidence is inconsistent in this regard, I do not consider that it is so due to dishonesty on the claimant’s part. He has stated in the interview with the investigator that it was a traumatic experience and his account suggests that the precise happenings once he slammed on his brakes are not clear to him. I therefore consider the claimant’s belief that he did not collide with the insured vehicle is a simple, and understandable mistake.
It is also worth noting that whilst the insurer has included in their submissions mention of the claimant’s driving infringement history and criminal issues, the insurer has failed to mention the not dissimilar history of the insured driver.

Overhead signage

The overhead signage, according to the photographs before me, warns vehicles approaching the crest of traffic lights ahead. The insurer submits that this should have put the claimant on notice of potential hazards. The sign is to warn of traffic lights, not of vehicles reversing out of driveways. I accept the claimant’s submission that a reasonable person would not be expected to be aware of the layout of driveways on the stretch of road.
Whilst the insurer refers to the fact that the claimant went on to collide with the truck stationary at the lights, there is insufficient information to suggest to me that the claimant would have collided with the rear of the truck regardless of the insured vehicle being on the roadway. Instead, the evidence suggests that the collision with the truck was a consequence of the claimant’s vehicle losing control.

The claimant’s line of sight

The insurer provides google maps images with pinned distances to submit that the claimant had at least 67 m of unobstructed view of the insured vehicle once reaching the crest. I do not accept this conclusion to be based on reliable evidence. I do not accept the google maps image to be sufficiently accurate for me to base a finding in respect of the claimant’s line of sight. I cannot verify the assumption that the crest flattens out at the point it is alleged. I also cannot verify that the pinned point for the insured vehicle is accurate.
Such submission could only be reliable if based upon an expert reconstruction of the accident site.

Brakes locking up

The submission that the claimant’s vehicle was not travelling at a safe speed due to the ABS brake system locking up is not supported by reliable evidence. The claimant’s description of the accident to the investigators, indicates that he is unsure exactly what occurred at the time of the collision. He describes it being a traumatic experience. He states that it felt like the car was “sliding” and goes on to state “I don’t really know, but I just – I was _ I had my foot on the brake, and it just didn’t feel like
I was – It was doing anything”.
The above is consistent with the version given to police as set out in the transcript of interview with Constable Egbers. The claimant told police that he slammed on the brakes but they seemed to not work.
The suggestion that the brakes locked up seems to originate from the police report.
I do not consider this sufficient to establish that the brakes actually did lock up and that if they did, that it was due to unsafe speed. Such a conclusion would need to be established by expert opinion.
The police description of the accident comes from the accounts of the witnesses. I do not consider the police conclusion regarding the brakes is reliable based upon the primary evidence relied upon.

Claimant’s speed

It is submitted by the insurer that I should accept the suggestion the claimant was speeding. It is also submitted that whilst the evidence relied upon for reaching this conclusion would not be admitted under rules of evidence, such rules do not apply to the Commission. Whilst the rules of evidence do not apply, I do consider the evidence in the form of a police statement of a witness to not be sufficiently reliable for me to make a finding that the claimant was speeding. Again, such a conclusion would need to be based on expert evidence.
Indeed, the police themselves state they cannot determine the speed of the claimant’s vehicle.
I am not sufficiently persuaded on the evidence before me that the claimant was speeding at the relevant time.

Road Rules

The insurer acknowledges the insured was bound by Rule 74, requiring a vehicle to give way when entering a roadway. However, the insurer submits that at the relevant time such Rule no longer applies and instead Rule 126 applies which requires a driver to keep a safe distance behind a vehicle travelling in front.
Firstly, my determination is not bound by whether the claimant was adhering to Road Rules. Of course, however, it is persuasive evidence if it is found to be the case. However, I do not accept that the claimant was in contravention of such rule. I do not accept that the evidence demonstrates that the insured was “travelling in front” of the claimant as required by the Rule. Instead, on the insured’s own evidence he was still in the middle of his manoeuvre from exiting his driveway and proceeding forward. Accordingly, I consider that Rule 74 still applied at the time as the insured was still in the process of entering the roadway.

Conclusion

There is no dispute that the insured breached his duty of care.
The insured was entering the roadway, and as noted by police it was his responsibility to ensure that the roadway was clear of vehicles in order to make such manoeuvre safe. There appears to be an issue with the configuration of the driveway position in the context of the configuration of the roadway. Nonetheless, the insured still must ensure that it is safe to enter the roadway.
I do not consider that the evidence and submissions before me establishes that the claimant’s actions do not represent that of a reasonable person in his position.
For the reasons set out above, I do not consider that the insurer has discharged its obligation in alleging contributory negligence.
Accordingly, on the evidence before me I make a finding that the claimant was not contributorily negligent.

Costs

Neither party have provided submissions as to costs.
Schedule 2 Clause 3(2)(g) of the Motor Accident Injuries Regulation 2017 (the Regulation) deems this dispute to be a regulated miscellaneous claims assessment matter.
Schedule 2 Clause 3(1) of the Regulation provides that the maximum costs for legal services provided to claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. The current value of a monetary unit is $106.89.
Having regard to the material before me submitted on behalf of the claimant, I award the maximum costs allowable under the Regulation. This amounts to $1,710 plus GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·        MAI Act
·        The Regulation
·        Civil Liability Act 2002
· Personal Injury Commission Rules 2021
· Road Rules 2014

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 148

5 April 2022