Brannigan v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Brannigan v AAI Limited t/as GIO [2023] NSWPIC 237
CLAIMANT:	Sean Brannigan
INSURER:	AAI Limited /as GIO
MEMBER:	Belinda Cassidy
DATE OF DECISION:	25 May 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; dispute about whether claimant mostly at fault; claimant pedestrian hit at about 4.00am on dark country highway; driver travelling at under 80 kms in a 100 kms zone with light on low not high beam; claimant walking in westerly direction on northern side of the highway; driver travelling in easterly direction in northern lane of two lanes; evidence from claimant, driver, independent witness, police officer and claimant’s family; issues of proper lookout (both claimant and driver), where claimant was standing and whether claimant had been taking drugs and his judgment impaired as a result; insurer conceded fault on part of driver; matter determined on the papers; Held – driver travelling below the speed limit but without headlights on high beam was not reasonable in the circumstances; claimant standing in middle of the lane attempting to wave down traffic; claimant saw approach of vehicle and saw it was not going to stop; reasonable person would have stood to the side of the road not in the middle of the road and would have moved further off the road on seeing the approaching vehicle; claimant contributorily negligent; no expert evidence; evidence as to drug taking and intoxication not tested due to assessment of the papers and therefore unreliable; no finding on impaired judgment; claimant’s contributory negligence assessed at 70%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 2. The claimant is for the purposes of s 8.10(3) of the Act permitted to recover from the insurer his reasonable and necessary legal costs incurred in connection with the dispute that has been referred to the Commission.

STATEMENT OF REASONS

INTRODUCTION

Sean Brannigan was involved in a motor accident in the early hours of the morning on 25 September 2020. The accident occurred on the Bruxner Highway near Duck Creek Mountain Road between Ballina and Lismore in Northern New South Wales.
Mr Brannigan was a pedestrian heading away from Ballina in an easterly direction standing or walking on the northern side of the Highway. Mr Missingham was driving a HiAce van in the northern (left) of two lanes of the Highway heading in a westerly direction towards Ballina.
It was just before 4.00am in the morning, dark and dry, when a collision occurred between Mr Missingham’s car and Mr Brannigan which left Mr Brannigan seriously injured.
Mr Brannigan made a claim for statutory benefits against GIO, the third-party insurer of the van Mr Missingham was driving. GIO accepts it is the relevant insurer and has paid benefits for Mr Brannigan’s treatment and care needs arising from his injuries.
A dispute has arisen in this claim as to whether there is any contributory negligence on the part of Mr Brannigan and if so the degree of that contributory negligence and therefore whether his statutory benefits should cease or continue. The insurer has said that Mr Brannigan’s contributory negligence should be assessed at 75% and as a result, GIO has stopped paying any statutory benefits.
On 31 August 2022, after GIO’s internal review of that decision, the claimant referred the dispute to the Personal Injury Commission (the Commission) for assessment and these proceedings have been allocated to me to conduct the assessment.

LEGISLATIVE FRAMEWORK

The claim that is before me is a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act2017 (the MAI Act).
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. Because Mr Brannigan was not an “earner” within the meaning of the legislation he has been paid no weekly benefits.
Under s 3.1 of the MAI Act statutory benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6)[1] or if the injured person was wholly or mostly at fault for causing the accident.[2]
[1] There is no issue in the claim concerning Mr Brannigan’s injuries. The insurer has accepted he has non-threshold injuries.
[2] The legislation has recently been amended to increase the 26 week not at fault period to 52 weeks, however that amendment only applies to accidents occurring on or after 1 April 2023.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.[3]
[3] Section 3.28(2).
The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Brannigan is mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).

INSURER’S DECISION MAKING

Mr Brannigan’s claim was accepted on 8 February 2021.[4] On 25 February 2021, GIO wrote to the claimant with its liability assessment.[5] Having considered the claim form, a factual report dated 1 February 2021 and a police report dated 21 January 2021, the insurer assessed Mr Brannigan’s contributory negligence at 75% and denied liability for ongoing statutory benefits on the basis he was mostly at fault.
[4] The first liability notice has not been provided. This detail was obtained from the second liability notice.
[5] Page 27 of the insurer’s bundle.
The insurer’s reasons for alleging contributory negligence at 75% were:
(a) the claimant contributed to the accident because he knew or ought to have known that standing in the middle of a road with a 100 kmph speed limit at 3.54 am “exposed you to a risk of serious injury”;
(b) Mr Brannigan departed from the standard of care of a reasonable person because:
(i)it was dark;
(ii)the accident occurred where drivers would not expect pedestrians to be about;
(iii)there had been an earlier “near miss” and the claimant would have been aware that it was difficult for drivers to see him, and
(iv)when confronted with the approaching vehicle, he ran further onto the roadway and into the path of the insured vehicle.
An internal review was sought and on 10 August 2022 and the insurer’s initial decision was affirmed, that is GIO maintained that the claimant was mostly at fault.[6]
[6] The internal review decision commences at page 110 of the claimant’s bundle.
The insurer acknowledged that the insured driver’s failure to apply brakes or have lights on high beam may have contributed to the accident, but that Mr Brannigan was more culpable and his contributory negligence should be assessed at 75%.

SUBMISSIONS

The claimant did not lodge any submissions with the application form. The following submissions have been received from the parties:
(a)    the insurer lodged submissions with the reply dated 21 September 2022;
(b)    the claimant filed submissions on 21 February 2023 (redated with a minor amendment on 4 May 2023 and lodged with the bundle);
(c)    the insurer lodged further submissions on 31 March 2023, and
(d)    final short submissions were lodged by the claimant on 21 April 2023.

Insurer’s submissions

First submissions filed with the reply[7]

[7] Page 13 of the insurer’s bundle.

After summarising the available evidence, the insurer submits the claimant was mostly at fault although GIO says it would be open to me to find the claimant was wholly at fault.
The insurer notes that provisions of the Civil Liability Act 2002 (CL Act) apply and that in order to determine whether there is any contributory negligence at all, s 5R of the CL Act requires consideration of “whether a reasonable person in the Claimant’s position, would have placed themselves in the middle of a lane of traffic on the Bruxner Highway … knowing what he did or ought to have known.” [22]
The insurer says that to assess the degree of the claimant’s contributory negligence requires consideration of Podrebersek v Australian Iron and Steel Pty Ltd[8] (Podrebersek) and a balancing of the relative culpability of the two parties.
[8] [1985] HCA 34.
The insurer says the evidence establishes that the accident occurred when it was dark, in an unlit section of roadway, that the insured was driving 22 km below the speed limit and that the claimant was standing in the roadway wearing dark clothing. The insurer also says the insured had his headlights on and saw the claimant two or three car lengths ahead of him and veered to the right to avoid the claimant but that at the same time the claimant ran towards the centre of the roadway.
The insurer says the claimant failed to have any regard for his own safety, that drivers would not expect pedestrians to be in the middle of the road and the insured could not have avoided the collision by just braking and had to take other action to avoid the collision.
The insurer says that the driver was not obliged to be driving with lights on high beam and that the claimant would have been on notice of the approach of the insured because of its headlights. The claimant’s culpability is further increased because there had been a near miss before the accident.

Further submissions[9]

[9] The insurer’s submissions were lodged on 31 March 2023.

The insurer concedes fault on the part of its insured driver but alleges contributory negligence in the order of 75%.
The insurer says:
(a) the rules of evidence do not apply. Sections 43(2) and (3) of the Personal Injury Commission Act 2020 (the PIC Act) require me to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(b)    the Gold Coast Hospital notes support a history of the claimant’s heavy methamphetamine use and that the claimant was an active drug user attending regular counselling;
(c)    the claimant admitted to the clinical drug and alcohol nurse (at Gold Coast Hospital) that he had consumed a “bunch of pills” while evading police and that this history was confirmed from the claimant’s mother by a medical registrar at the hospital;
(d)    the claimant’s statement is unreliable having been made two years and four months after the accident and is self-serving omitting facts and confirming memory problems due to a brain injury;
(e)    he concedes involvement in the police pursuit in the hours before the accident;
(f)    the claimant admits he saw Mr Missingham approach him with his lights on low beam and had formed the view that Mr Missingham had not seen him and was not going to stop;
(g)    the claimant does not deny in his statement his drug history or his admissions to the clinical nurse that he had taken a “bunch of pills” in the hours before the accident;
(h)    Shannon Vanz does not know and only assumes the claimant was in bed and asleep and does not address in her statement the history she gave to the registrar at the Gold Coast Hospital;
(i)    Savannah Brannigan also assumed the claimant was asleep and she is inconsistent with the claimant and their mother who says the claimant left at midnight not 2.00am and she says he left home in his car not Hayley’s;
(j)    there is no evidence from Hayley and that I should draw an inference her evidence would not support the claimant;
(k)    the claimant says in his statement that he had no choice but to walk. The insurer says he did have a choice, in that he could have sought assistance at the 24 hour service station. He does not explain why he did not take refuge;
(l)    Mr Missingham’s evidence should be accepted about the speed of his car because he has given reasons and what other drivers did or do is irrelevant, and
(m)     the reason Mr Missingham had his lights on low beam is likely due to the presence of the other vehicles travelling on the road at the time.
The insurer relies on regulation 78 of the Road Transport (Vehicle Registration) Regulation 2017 which says that a low beam headlight must illuminate the road ahead for at least 25 metres and at high beam for at least 50 metres. The insurer says I can therefore assume that Mr Missingham would be able to see things at least 25 metres ahead of him.
The insurer cites Street CJ in Leishman v Thomas[10] as follows in support of an argument that Mr Missingham acted in the “agony of the moment”:
“This so called principle of acting in the ‘agony of the moment’ is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved. It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else. The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called ‘agony of the moment’, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise.”
[10] (1957) 75 WN(NSW) 173 at [175].
The insurer says there is no evidence Mr Missingham was not keeping a proper lookout. GIO submits that the claimant created the emergency situation as Mr Missingham was driving below the speed limit, keeping a proper lookout and took action in response by moving to the right into an unoccupied adjacent lane to avoid the collision with the claimant in his lane.
The insurer says that when first observed, Mr Missingham was travelling at 21.67 metres per second and, in the agony of the movement, he moved right. GIO says this is what Ms Lethorn had done however, unlike Ms Lethorn, Mr Missingham was unable to avoid a collision because while Ms Lethorn was able to drive around Mr Brannigan because he did not move when confronted with her vehicle, Mr Missingham was unable to avoid the collision because the claimant moved, running further into Mr Missingham’s pathway.
The insurer says it is reasonable to assume a reaction time of 1.5-2 seconds which would have meant Mr Missingham had to travel 32.5-43.34 metres after first seeing Mr Brannigan before he could have reasonably commenced braking.
The insurer says Mr Brannigan was not looking at traffic and was standing in the middle of the left lane. Ms Lethorn says she saw the claimant standing in her lane waving his arms. This supports a finding that Mr Brannigan was standing in the lane.
The insurer submits Mr Missingham said the claimant did not have a shirt on but according to Ms Lethorn, the claimant was wearing dark clothing. GIO says the claimant’s statement 2.5 years after the event that he was not wearing a shirt is improbable. GIO submits with or without a shirt, Mr Missingham had no better opportunity to see the claimant.
The insurer says Hayley is the best placed person to give evidence as to the claimant’s state of intoxication or not immediately before the accident and that Constable Reddan is sufficiently experienced at identifying persons that are likely to be affected by drugs.
The insurer urges me to accept the evidence from both the nurse and the registrar at Gold Coast Hospital that the claimant had taken pills and that the claimant’s judgment was impaired as a result.

Claimant’s submissions[11]

[11] The claimant’s first submissions were dated 21 February 2023 but were resubmitted with a minor amendment and redated 4 May 2023 and are included in the claimant’s bundle. To avoid duplication, the submission referred to here are the 4 May 2023 submissions.

The claimant cites regulation 73 of the Personal Injury Commission Rules which requires a member to consider evidence that is logical and probative, relevant to the facts in issue and the issues in dispute, that evidence based on speculation or unsubstantiated assumptions is unacceptable.
The claimant submits:
(a)    there is no relevant or probative evidence that would cause me to be satisfied the claimant had consumed a large quantity of drugs before the accident. The police evidence is vague and inaccurate. The claimant has admitted to past drug use but that does not mean he was affected that the time;
(b)    the claimant was not obliged to give a statement to the police and the suggestion he was seeking to minimise his involvement in the police pursuit is without proper foundation;
(c)    the statements of Shannon and Savannah Vanz support the claimant’s activities between 9.00pm and 12.00am;
(d)    the claimant is not obliged to lead evidence from his ex-girlfriend, and he has not concealed her identity;
(e)    the claimant has explained why he decided to walk home rather than take refuge at the truck stop;
(f)    the suggestion that Mr Missingham had his lights on low beam due to the presence of other vehicles is speculation, and
(g)    the assertion that the claimant created the emergency should not be accepted because he has explained why he was at the scene which does not involve his fault. He acted reasonably in the unfortunate circumstances. The agony of the moment defence does not apply.
The claimant submits that the insured driver was mostly at fault and that, at most the claimant was 25% contributorily negligent. The claimant says the insurer bears the onus of establishing the claimant was wholly or mostly at fault and has failed to discharge the onus.
The claimant then says:
(a)    Mr Missingham was in a hired vehicle which he had been driving for only 10 days and he was not experienced with it;
(b)    he was not using his high beam, it was dark, there were no streetlights, and he was on a highway;
(c)    other drivers saw the claimant “on the side of the roadway” and were able to avoid a collision, and
(d)    Mr Missingham did not apply his brakes as there were no visible skid marks.
The claimant also says the only direct evidence of what occurred is from the insured and his evidence is not reliable because:
(a)    the statements are “obviously and deliberately self-serving”;
(b)    the insured driver’s evidence that he was travelling 20 kms below the speed limit is not believable when other drivers were driving at or near the speed limit, and
(c)    there are inconsistencies in the statement to the police and the statement to the investigator.
The claimant says the opinions of Senior Constable Redden should be disregarded because he did not interview the claimant, there is no credible or tangible evidence that the claimant was under the influence of drugs or alcohol at the time and there is no evidence of the qualifications, training or experience of the officer.
The claimant says his actions of walking on the roadway were reasonable because he had no other alternative and there was no departure from the standard of care of a reasonable person in the claimant’s position.
The claimant says the accident was caused mostly by Mr Missingham’s failure to activate his high beam headlights. If he had, he would have had a far better opportunity to have seen the claimant and he would have had a far better opportunity to properly assess the situation and take evasive action such as braking and stopping or swerving to avoid a collision like the other drivers had. The claimant also submits that there is no plausible explanation for the driver’s failure to use high beam and this was a grave departure from the standard of care of a reasonable person in the defendant’s position.

The claimant relies on a number of cases in support of the argument that the insured driver was at fault for not having his lights on high beam and was failing to keep a proper lookout as well as cases where the contributory negligence of pedestrians was discussed and assessed.

Insurer’s final submissions

The insurer lodged short final submissions stating:
(a)    I should accept evidence that is relevant to the issues to be determined;
(b)    the claimant submits he has made open and honest admissions about his drug use however his drug use was not in his statement but was contained in conversations with staff at the Gold Coast Hospital and that I would accept those statements made as open and honest admissions, and
(c)    Mr Missingham’s culpability “if any” was less than the claimant’s because he was travelling well below the speed limit and that there was insufficient time or space to avoid a collision. The insurer’s concession of some culpability “is a pragmatic one that acknowledges, without the cost adducing medical evidence that the extent of the Claimant’s injuries may have been less had Mr Missingham braked earlier than he did.”

Procedural matters

The first teleconference in this matter was held on 24 October 2022. The parties sought directions addressed to the police and the owner of the car (Hertz) and directions were made and a further teleconference set.
A second teleconference was held on 17 January 2023. Both parties requested an assessment on the papers, and I considered that was appropriate noting this was a statutory benefits dispute and any decision was not binding on any common law claim. Directions were made for final submissions and a date set for the delivery of the reasons. A variation was later made to the timetable.
A third teleconference was held on 28 April 2023 to ensure the matter was ready to proceed and to ensure I had all the documents. Final directions were made, and a date set for the reasons.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The application for personal injury benefits (claim form)[12] is signed by the claimant but not dated. Mr Brannigan gives no description of the accident and does not include a diagram of the accident. He provides no particulars of his injuries, or the details of the driver involved or the vehicle other than its registration number.
[12] Page 21 of the insurer’s final bundle.
The insurer’s second liability notice provides a list of the injuries sustained in the accident. In summary the claimant sustained a number of fractures and significant internal injuries:
(a)    right open tibial fracture;
(b)    left midshaft radius and ulna fractures;
(c)    right hand 2-5 CMCJ dislocations;
(d)    grade III thoracic aorta trauma;
(e)    grade III Liver lacerations;
(f)    grade V splenic laceration;
(g)    bilateral renal lacerations;
(h)    small anterior pericardial effusions/haematoma;
(i)    large caecal pole haematoma, and
(j)    distal small bowel and sigmoid serosal tears.

Insurer’s documents

Factual investigation

GIO retained the services of Brooksight Investigations whose investigator completed a report on 1 February 2021.[13]
[13] Page 35 of the insurer’s final bundle.
The author of the report visited the scene recording the following observations:
(a)    the accident took place about 200-250 metres west of Duck Creek Mountain Road;
(b)    there were two lanes heading east (towards Ballina) and two lanes for westbound traffic (heading towards Alstonville, Goonellabah and Lismore);
(c)    the roadway was bitumen;
(d)    the speed limit was 100 kmph;
(e)    there were no homes or buildings near the incident (although there appears to be a farm building of some sort on a hill and a driveway relatively close to the scene);
(f)    where the accident occurred the Highway has a gentle slope to the east (towards Ballina) and steeper grade to the west (towards Alstonville where Mr Brannigan was heading);
(g)    there is one metre of bitumen past the “fog line” on the northern side of the roadway then land extending to bushland (the photographs suggest the bushland may be on the southern side of the roadway);
(h)    there is no overhead lighting;
(i)    each lane was about three and a half metres wide, and
(j)    there are two unbroken centre lines prohibiting overtaking.

Other documents

The insurer has obtained information from the internet[14] that suggests on 25 September 2020, sunrise in the area occurred at 5.32am and that astronomical twilight began at 4.13am, nautical twilight at 4.41am and civil twilight at 5.08am. This suggests that before 4.00am it would have been dark.
[14] Page 85 of the insurer’s bundle.
The insurer has also obtained details from the internet of the operating hours of the BP Ballina Travel Centre at 41 Bruxner Highway suggesting it is open 24 hours a day.[15]
[15] Page 88 of the insurer’s bundle.
The insurer has included in its bundle an article about Benzodiazepines which are:
(a)    minor tranquilisers;
(b)    can only be taken if prescribed;
(c)    if taken it is not legal to drive a car;
(d)    they are widely prescribed in Australia but can be used illegally ground to a powder, mixed with water and injected, and
(e)    they have a relaxing effect, but can cause dizziness, euphoria, confusion, visual distortions, moodiness and short-term memory loss.

First responders and hospital notes

Police report 20 January 2021[16]

[16] Page 21 claimant’s bundle.

The report was completed by Senior Constable Redden of Ballina.
The accident was said to have occurred on 25 September 2020 at 3.50am, on the Bruxner Highway, 300m east of Alstonville. The roadway was straight and sealed. The weather was fine, and it was said to be “dawn” with a speed limit in the area of 100km. The claimant’s residence was said to be Goonellabah (on the outskirts of Lismore).
The crash summary details from the report says:
“… the pedestrian was walking West on the Bruxner Highway, Alstonville. Vehicle 2 was travelling approximately 80 kmph in lane 1 of 2. The driver observed the pedestrian walking in the middle of lane 1. Driver of vehicle 2 merged into lane 2, the pedestrian also entered lane 2 where he was struck by the vehicle.”

Ambulance Report[17]

[17] Page 29 of the claimant’s bundle although a much clearer version is found at AD5 in the Commission’s file. Abbreviations have been converted to text in order to enhance understanding of it.

The report refers to a “vehicle related trauma pedestrian” and includes this case description:
“Call to car versus pedestrian. On attendance male lying on road, combative, police on scene. Per police patient hit by van at approximately 100 km, major deformity to front right driver’s side [of the vehicle]. On examination GCS 13 pupils sluggish, combative, head injury with multiple lacerations to face and parietal region of skull, fractured teeth, fracture to left forearm / right hand, compound fracture right tib/fib large abrasion lower back and buttocks, left sided chest sounds diminished …abdomen soft nil distention, ?pelvic fracture, torn scrotum … patient responded well to treatment, retrieval arrived on site and continued further care.”

Gold Coast Hospital

Also available are the claimant’s Gold Coast Hospital notes.[18] A large volume of notes were produced however the insurer has extracted a number of relevant pages. The claimant has not taken issue with that or sought to add other pages. The information from these is summarised as follows:
[18] Page 97 of the insurer’s bundle.
(a)    the claimant was transported from the scene by helicopter, he was intubated and ventilated. Social workers made efforts to trace family members [p 9];
(b)    in a history given to a physiotherapist in the hospital on 26 October 2020 the claimant is recorded as having had a past history of “heavy methamphetamine use”, he lived with his mother, he was an active drug user who attended drug and alcohol counselling on a weekly basis;
(c)    there is a record of “unable to recall event surrounding accident” although he said he recalled events leading up to the accident. His admitted past and recent heavy drug and alcohol use was said to be likely to affect his post traumatic amnesia (PTA) assessment [p 19];
(d)    the claimant was said to be taking suboxone (a drug prescribed to control cravings and withdrawal symptoms) [p 71];
(e)
the psychiatric addiction registrar has a history of the claimant’s illicit drug use

[p 95] and his consumption of Buvidal (another drug used to treat addiction) [p 96]. At [p 97] there is a lengthy note of a joint review conducted by an alcohol and drug service nurse at the hospital and the psychiatric addiction registrar. It appears the nurse took a history from the claimant and the registrar spoke with the claimant’s mother;
(f)    the claimant’s mother reported [p 106] that before the accident, “he had been taking Benzodiazepines (thinks Xanax) and was intoxicated as had taken ‘lots of tablets of them’ and subsequently ended up in a police chase … subsequently left the vehicle he was chased in and was so intoxicated that he walked out into traffic”. Concerns were expressed about whether the claimant was attempting suicide but his mother was adamant he was not;
(g)    the registrar was of the view the claimant was displaying features of opioid withdrawal;
(h)    the note of this conference from the nurse [p 97] says that his last injection of Buvidal was six weeks ago before the accident, he denied other substance use but she records:
“Benzodiazepines last used day of accident reports that he consume ‘a bunch of pills’ in a car whilst evading police. Denies this to be a normal occurrence. Recent release from prison earlier this year. Was on QOTP [Queensland Opioid Treatment Program] whilst incarcerated. [History] of Methamphetamine use whilst in jail.”
(i)    the nurse expresses the opinion the claimant was in acute opiate withdrawal, and that he wanted to get off drugs for good. He was at that time having suicidal thoughts it appears at least partly due to his physical state.

Statements

Mr Missingham

The insured driver was interviewed by GIO’s investigator on 23 January 2021:[19]
[19] The statement commences at page 76 of the insurer’s bundle. The numbers in brackets refer to the paragraphs of the statement.
(a)    Mr Missingham lived in Goonellabah;
(b)    he was 64 years of age at the time of the accident and had held a license for 35 years [10];
(c)    he is a courier driver and drives 70,000km a year and is “very familiar” with the Bruxner Highway [10];
(d)    he was driving a hired van because his vehicle was at the smash repairers due to an accident (for which he was not at fault) [1] and [12];
(e)    he drove the van every day from 15-25 September 2020 [13];
(f)    the van was in good condition with excellent brakes and good quality tyres [14];
(g)    he left home 3.35am to drive to the Gold Coast as part of his courier business. The weather was fine and the roads were dry [15];
(h)    he had reached the Bruxner Highway heading east and was intending to turn left at the Pacific Highway and drive to the Queensland border [16];
(i)    he had his lights on low beam and “both lights were working … and could illuminate the road ahead of me” [17];
(j) he had just passed Alstonville and was in a 100km speed zone but “I was travelling close to 80 kilometres per hour … I was not in any hurry” [19]. He said, “this section of the road is very dark and there is no street lighting.” He said that animals can stray onto the road so he “always takes it easy along this section.” [19], and
(k)    he was driving in the left lane of two but was aware that up ahead the road would narrow to only one lane.
His description of the collision with Mr Brannigan is as follows:
“[21] It was about 3.50am to 3.55am as I was getting close to Duck Creek Mountain Road. I could see the road ahead with the illumination of the headlights from my van. Extremely suddenly directly in front of me in the left-hand lane I saw an object that at first I thought was some type of animal. This happened extremely suddenly. A split second later I realised that the object right in front of me was a human being. I could see it was a male person who had no shirt on and was only wearing shorts. I would estimate when I first saw this person he was about 10 metres away from me. There was no way I had time to apply brakes on the van. The male was right in the middle of the left-hand lane I was driving.
[22] When I realised it was a male person, I was only a couple of metres away from this person who was in the middle of the left lane. All I had time to do was to swerve by pulling the steering down to move to the right to try to avoid the person. Very unfortunately but as I swerved to my right, he simultaneously moved to his left towards the second lane.
[23] Within another split second the van I was driving impacted very heavily with this male person. At the time of impact, the van I was driving was partly in the right hand lane and partly in the left hand lane.”
Mr Missingham goes on to say:
(a)    he almost stopped completely after the impact and pulled up not far from Mr Brannigan [23];
(b) he was shocked and his body felt jarred [24]. He later says he took four days off work to recover from the shock;
(c)    he expected the claimant to be dead but he was breathing and making noises and he called emergency services who arrived 10 minutes later [25] an [26];
(d)    he was interviewed by police and a blood sample was taken. He recalls the claimant swearing when ambulance and police were talking to him [28];
(e)    his vehicle was towed and written off [29];
(f)    he does not know what the claimant was on the road and says, “it happened so quickly. He just suddenly appeared in front of me and then he moved towards the centre when I tried to swerve to my right” [33], and
(g) after the accident he found a mobile phone sitting on the windscreen ledge of the van and he pointed it out to police who took possession of it [36].

Police officer’s statement

The insurer’s investigator interviewed Senior Constable Reddan at Ballina Police Station on 20 January 2021. A transcript of the interview has been provided[20] which includes the following:
[20] Page 51 of the insurer’s bundle. The interview was in the format of 235 questions and answers referred to as [Q] or [A] with the relevant number.
(a)    Senior Constable Reddan had 13 years’ general duties experience with the police [Q9];
(b)    the station received two calls at 3.54 and 3.57am about a male on the roadway walking in a westerly direction on the northern side of the road on the fog line in the same direction as traffic [Q18-20];
(c)    he thinks there were “another couple of calls” after the collision [Q25];
(d)    a police officer from the station in Ballina was returning to Alstonville and was close by and was the first to arrive, Senior Constable Reddan was in the second vehicle to arrive [Q26-28];
(e)    he arrived at 4.09am [Q34];
(f)    the accident was 200-250 from the Duck Creek Mountain Road, it was dry and dark and there was no street lighting [Q35-43];
(g)    there were two lanes heading east (towards Ballina) and one heading west (in the direction of Alstonville and Lismore) [Q47-50];
(h)    when he arrived, the clamant was being attended to by who he thinks was an off duty nurse and the other police officer and the claimant was on or very close to the double white lines more in the westbound lanes [Q52-56];
(i)    the van was stopped about 40 metres from impact, and he thought that the claimant had hit the front of this vehicle, been caried for a period and when the van stopped, the claimant had been flung off [Q61];
(j)    the police officer thought the claimant was wearing shirt and shorts and one of the claimant’s shoes had been thrown off [Q69-71];
(k)    the police officer expressed the opinion that in his experience the claimant was probably affected by drugs likely amphetamines. He was agitated at the scene [Q80] and [Q82];
(l)    the police officer asked whether a version of events was taken from the claimant, and he responded, “From what … I can gather from other police he’s apparently got no other – no recollection. Other police have spoken to family members. He can’t recall anything before the incident as well.” [85];
(m)     the police officer interviewed Mr Missingham at the scene by body worn camera and he was given a breath test at the scene (negative) and a blood and urine test at Ballina Hospital (no results yet) [Q110 and Q112],
(n)    Mr Brannigan’s phone was between the windscreen and the wiper on the driver’s side of Mr Missingham’s van, and
(o)    Mr Missingham said he was driving 80 kmph, the driver said it took him 40 metres to stop and the pedestrian was 30 metres further down the roadway [Q129 to 132].
Mr Missingham’s statement appears at [A141]:
(a)    the police officer had his phone and he made a 000 call at 3.51;
(b)    he was on his own heading towards Ballina on his way to the Gold Coast depot;
(c)    “I saw a bloke in the middle of the road …He just sort of emerged from nowhere. I didn’t see him in the distance or anything. When I saw him, he was probably two or three car lengths in front of me. I was travelling 78K an hour. I had no chance to – I didn’t, sort of, worry ‘cause I didn’t think I was going to hit him. I didn’t even hit my anchors. I veered to the right to avoid him and then he darted to the right like a kangaroo. And then I hit him. I stopped. Got out. Checked to see if he was still breathing.”
(d)    Mr Missingham was in the left of two lanes and when he saw the claimant. He says Mr Brannigan was in the middle of the left hand lane, and
(e)    “At first I thought, ‘Is this guy waving me down?’ But, he didn’t look at me. And then – and then he sort of noticed me and I veered into the right hand lane, thinking that I’d avoid him and then he just darted in front of … like a kangaroo.”
Senior Constable Reddan says that he obtained a statement from a woman who had seen the claimant on the fog line almost near the Gap Road and she had to cross onto the incorrect side of the road [Q153] to avoid him. He acknowledges that the claimant was not tested for the presence of drugs or alcohol [Q160] and he had made a number of efforts to take a statement from the claimant [Q165].
Constable Reddan read the statement of Veronica Lethorn who had been travelling down the hill past the Duck Creek Mountain Road turnoff. She says [Q186]:
“My headlights shone on a male person with a white face and dark clothing. I could see that he was standing in the single travel lane and he had both hands in the air waving them around. I was travelling at 100 kms an hour at the time. I thought I was going to hit the man, so I swerved to the centre of the road and slowed my car to avoid hitting him I passed the man by a metre or a metre and a half. He was on my left side. After I passed him, I proceeded downhill towards Ballina. I looked in my rear vision mirror and I could see another car that was coming down the road and assumed they would stop. I saw their headlights in the rear view mirror move right to left quickly. I think they tried to miss the man too.”
Constable Reddan says there were no skid marks on the roadway [Q195]. He says there was a thought that the claimant would be charged with being a pedestrian on a roadway and obstructing traffic, but in the light of his injuries the Highway Patrol was considering not pursing this. But he expresses the view that “Mr Brannigan is definitely at fault for causing the collision.” [Q208].
Senior Constable Reddan also expressed a view that the claimant had possibly been involved in a previous incident with a partner or ex-partner in a police pursuit in the Goonellabah area [Q227], that he had left that vehicle and was walking home to Goonellabah [Q232].

Mr Brannigan’s statement

The claimant provided a statement dated 22 January 2023.[21] He says at [5] that his recollection is vague but he can remember some details.
[21] Page 73 of the claimant’s bundle.

He says at [6] that on the night of September he was at Goonellabah where he was living the other people however, he leaves the details of those people blank.
He says at [7] that he was in a relationship with a person called Hayley and her surname is left blank.
He says he had dinner and went to bed at 9.00pm and was woken up at about midnight by Hayley who had come to the home and entered his bedroom. She woke him up and they had an argument [8] and [9]. His mother asked them to leave [10] so he and Hayley left the house and he was not wearing a shirt because he had just woken up [11].
As they drove, he says Hayley was speeding. They were intercepted by the police who activated their lights and sirens but Hayley would not stop [12] and [13]. The police gave up the chase and she lost control of the vehicle hitting a tree near the BP truck stop in West Ballina [14].
Hayley got out of the car and ran away eventually making her way back to her home in the Gold Coast [15]. Mr Brannigan says he began to walk home to Goonellabah [16]. He said he had to walk because he was in a remote area with no public transport, and he could not afford a taxi [17].
Mr Brannigan said [18] he had to walk through some thick sugar cane fields before reaching the Bruxner Highway. He was heading for Alstonville because he had family there who he hoped could assist him [19].
He said he was walking on the northern side of the road [20] for about three or four kms and he was getting colder as he had no shirt on. He was trying to flag down a car [21]. He says he was on the right-hand side of the unbroken white line.
He said he had to walk on the road because he could not walk along the embankment [23] and he remembers a few cars passing him. He tried to flag them down, but no one stopped [24]. He then says at [25]:
“Shortly after that, I recall seeing another vehicle approaching me in the left hand-lane with only the low beam lights on. Initially I tried to flag the vehicle down but as it approached, it appeared that the driver had not seen me and was not going to stop.”
While he says he has no further recollection “I do believe that in the final seconds before the accident, I would have tried to avoid being struck by the vehicle by trying to jump / move out of the way” [26].
He says at [29] that he had no drugs or alcohol in his system that evening.
He marks up a photograph and explains where the accident happens. He confirms he was walking from right to left (east to west) in the second photograph and that the insured driver was driving from right to left (west to east).

Statements from the claimant’s family

Savannah Brannigan has provided a statement dated 17 January 2023.[22] She says:
(a)    her brother went to bed at 9.30pm;
(b)    he had not taken any alcohol or drugs before bed;
(c)    his ex-girlfriend arrived and went into his room and they had an argument at about 2.00am;
(d)    they were told to leave the house and they both left in the claimant’s vehicle but that Hayley drove, and
(e)    she does not recall if her brother was wearing a shirt or not.
[22] Page 77 of the claimant’s bundle.
Shannon Vahz, the claimant’s mother has also given a statement dated 17 January 2023.[23] She says the claimant went to bed at 9.30pm and was not on drugs at the time nor had he been drinking. She says Hayley had arrived sometime after midnight and there was an altercation and she asked them to leave. They left and then the accident occurred.

EVALUATION OF THE EVIDENCE

[23] Page 78 of the claimant’s bundle.

General observations

Both parties have made submissions about the rules of evidence in the context of whose evidence should be accepted and what evidence should not be given weight.
I note that s 43 of the PIC Act provides that proceedings “are to be conducted with as little formality and technicality as the proper consideration of the matter permits” and that I am “not bound by the rules of evidence” and should act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. While I am not bound by the rules of evidence, I cannot disregard them completely and giving due regard to the rules of evidence ensures an assessment that is procedurally fair.
Both parties requested I conduct this assessment on the papers. I determined that was appropriate because this is a matter involving treatment and care expenses only in a statutory benefits claim where the claimant is likely to have access to Medicare benefits and, subject to the severity of his injuries, Lifetime Care and Support or National Disability and Insurance Scheme benefits.
Mr Brannigan may wish to pursue a common law action and any decision I make in terms of fault or contributory negligence is not binding in respect of that claim.[24] Should additional information be forthcoming during the investigation of the damages claim or a different decision be made in respect of liability in that claim, then the insurer is able to make a fresh liability decision in the statutory benefits claim in accordance with s 6.19(5) of the MAI Act.
[24] See s 3.44 of the MAI Act.
Applying the rules of evidence to a paper-based assessment is more challenging that in an assessment conference hearing. One of the features of an assessment on the papers is that none of the written evidence, and witness statements in particular, can be tested by examination and cross-examination of witnesses. For example, in this case, there is a dispute about the speed Mr Missingham was driving and whether it is plausible he was travelling well below the speed limit and if so why. At an assessment conference hearing with oral evidence being given by Mr Missingham, the contents of Mr Missingham’s statement could have been further explained by him during examination in chief and then tested by way of cross-examination. Similarly Mr Brannigan says he was walking in a westerly direction towards Alstonville to seek assistance from relatives. His ultimate destination was Goonellabah further west. What is unclear from his statement is why, if he was heading west, he was trying to flag down motor vehicles (such as Ms Lethorn’s and Mr Missingham’s) which were heading east. In an oral hearing with the benefit of examination and cross-examination that discrepancy in his evidence could have been explored and possibly resolved.

The claimant’s evidence

While I note the claim form contained no details of the accident, and the hospital records state that the claimant had no recollection of the accident, the hospital records do suggest the claimant remembered the events leading up to the accident.
The claimant’s statement was made at the claimant’s counsel’s request after Mr Brannigan had considered the available evidence. While an earlier statement would have been preferable, I accept the claimant’s evidence of the events immediately leading up to the accident as contained in his statement.

The insured’s evidence

I do not accept the claimant’s suggestion that Mr Missingham’s statements are self-serving.
I accept the evidence of Mr Missingham in particular the statement that he gave to the police at the scene of the accident. He says he was in shock but appears to have cooperated fully with the police and given the best evidence he could at that time.
The statement he gave to the investigator is consistent with his police statement. There are minor changes to some of the words used which is, in my experience, natural with the passage of time. In both statements Mr Missingham has said the claimant was in the middle of the road and moved into his pathway after he swerved.
Mr Missingham’s statement is also consistent with the statement of Ms Lethorn (in terms of where the claimant was likely to be on the roadway), the police (in terms of what happened after the accident and where Mr Brannigan was found), and Mr Brannigan’s own statement (of the driver using low beam headlights and him trying to attract the attention of drivers to give him a lift).

Other evidence

I accept the evidence on Ms Lethorn about what she saw in the early hours of the morning before Mr Brannigan’s accident. She is an independent witness connected with neither the claimant nor the insured but was concerned for the safety of the person she saw on the road and other motorists and rang the police when she had the opportunity to do so after arriving at work.
I accept the evidence of Senior Constable Reddan in so far as factual matters concerning the scene of the crime are concerned. His opinion evidence as to fault and the intoxication of Mr Brannigan I do not accept as the claimant has been given no opportunity to test his experience and expertise on these matters. I note for example the Senior Constable suggested amphetamine use (speed or uppers) when Mr Brannigan was said to have consumed and been a regular user of benzodiazepines (such as Xanax or downers).
I note there is no expert evidence adduced by either party in this matter. In a contested hearing on fault in a damages claim it might be expected there would be expert evidence as to speed, stopping distances, reaction times and the effect of high beam versus low beam in the particular vehicle Mr Missingham was driving. It might also be expected there would be accident reconstruction evidence about where the claimant was standing, where he was hit, where he was found and what that suggests about speed and lookout. Finally, there might also have been expert evidence as to the drugs Mr Brannigan was alleged to have taken and the likely effect of them on Mr Brannigan.
No criticism is levelled at either of the parties about the absence of expert evidence. The issue of proportionality for a Member of the Commission as required by s 42(4) of the PIC Act is an issue that would also be relevant to the parties (in terms of costs) as they prepared these proceedings for assessment.

FINDINGS OF FACT

What speed was the insured driving?

Mr Missingham told the police at the scene of the accident, while he was in shock, that he was travelling at 78kmph. I accept the insured’s evidence that he was driving at about 80km at the time of the accident. There is no lay or expert evidence to suggest otherwise.
The claimant submits Mr Missingham may have been driving at 100kmph based on the information in the ambulance records. The ambulance personnel say the police provided that information however Mr Missingham says he was not interviewed until after the ambulance officers had begun treating the claimant. This evidence is untested and of course the ambulance personnel did not witness the actual accident.
Mr Missingham has explained in his statement why he was driving at that speed. He was familiar with the highway. He lives in Goonellabah and works on the Gold Coast and drives the Bruxner Highway to work and back. He says there is bush around and animals can move onto the road. There is also no dispute that the accident occurred only 300 metres from Alstonville, a town where it is likely the speed limit was less than 100kmph.
While the speed limit was 100kmph and other drivers may drive at 100kmph and Ms Lethorn has said on the day she was driving at that speed, I am satisfied that at the time of this accident Mr Missingham was travelling at or around 80kmph.
I note the claimant has also argued that Mr Missingham would have been unfamiliar with the van as he had only been driving it for 10 days at the time of the accident. While I do not have the distance between Mr Missingham’s home and his Gold Coast depot and how many days per week he was working at the time, he has given evidence about the state of the vehicle he had been driving and how it was operating. I accept this evidence and do not accept the claimant’s suggestion he was unfamiliar with the vehicle and that this had something to do with the cause of the accident.

Were his lights on high or low beam?

There is no dispute that Mr Missingham was driving with his lights on low beam. He offers no explanation in his statement why that is so.
I accept the claimant’s submission that it would be speculation for me to find this was because Mr Missingham was behind Ms Lethorn. Her evidence is that she had left her home in Alstonville to travel (east) towards Ballina. Her written statement was read out by the police officer to the insurer’s investigator and has been transcribed. I do not have a copy of her signed statement before me. The transcript of her statement says she left home at 3.15am. If that time is correct, as the accident occurred 300 metres from Alstonville at 3.54am and it is highly unlikely she took over 30 minutes to drive 300 metres, it is not at all clear to me that Mr Missingham and Ms Lethorn were that close in time for his to be the vehicle that was behind Ms Lethorn’s.[25] I also note the claimant’s evidence that there were “a few” cars passing him and one of those cars was the vehicle Ms Lethorn saw.
[25] I have doubts as to the accuracy of the times that have been transcribed in this statement – for example Ms Lethorn is said to have arrived at work at 3.59am and that I was after she had arrived that she rang the police. The time transcribed of her call to the police was said to be 3.45am.

Where was Mr Brannigan on the roadway?

I have earlier accepted the evidence of Ms Lethorn about what she saw. Ms Lethorn’s evidence is that a person was standing in the middle of the road waving his hands in the air. I accept that the male person Ms Lethorn saw was the claimant. Ms Lethorn’s evidence as to what the claimant was doing is consistent with the claimant’s own evidence. Mr Brannigan has said in his statement there were cars passing him and I accept that one of those cars was Ms Lethorn’s. While Ms Lethorn saw a person with a shirt on and Mr Missingham and Mr Brannigan say he did not have a shirt in the light of the dark and the period of time involved, I do not see this as a significant discrepancy.
I accept the claimant was walking on the roadway. This is permitted by the NSW Road Rules 2014 when there is no footpath.[26] Mr Brannigan was walking facing traffic which is also a requirement of the Road Rules.[27] This is appropriate, particularly in the dark, because it gives the pedestrian the opportunity of seeing oncoming vehicles before the driver may have the opportunity of seeing the pedestrian.
[26] Rule 238(1).
[27] Rule 238(2)(ab).
Mr Brannigan says in his statement he had been walking on the road and on the “right-hand side of the unbroken white line.” This unbroken white line is what others have called the “fog line”. He admits he was trying to flag down cars and that some cars had passed him.
Ms Lethorn has said in her statement that she saw in her rear view mirror a car coming down the hill (out of Alstonville) after she had come across Mr Brannigan in the roadway. She saw this car’s headlights move from right to left suggesting another successful near miss by a car faced with the same person in the same place. Mr Brannigan does not at any stage in his staement mention moving into the lane to the left of the fog lane in association with any of the near misses.
I accept Mr Missingham’s evidence that the claimant was in the roadway when he was first seen. The statement to the police at the scene of the accident says, “I saw a bloke in the middle of the road”. His subsequent evidence is consistent with that and is consistent with the evidence of Ms Lethorn and the police officer’s statement about other reports of a person on the road. While Mr Brannigan may have been walking to the right of the fog-line and off the road at times during the course of his journey, I am satisfied that, in the moments before the collision, he had either remained in the traffic lane or moved into the traffic lane in an attempt to flag down Mr Missingham and request assistance.
Mr Brannigan has said in his statement he would have tried to avoid being hit and in my view it is reasonable to assume he would have done something to avoid Mr Missingham once he perceived he was coming towards him.
I accept the evidence of Mr Missingham that as he took evasive action to avoid the claimant, the claimant perceived the threat to his safety and moved away from it, towards the centre of the roadway.

CONSIDERATION OF THE ISSSUES

Should there be a finding of contributory negligence?

The insurer has consistently conceded fault on the part of Mr Missingham saying at different times this was because his lights were on low beam or because he did not brake soon enough.
While the insurer says it is open to me to find that Mr Brannigan was wholly at fault, I do not propose to do so. The insurer has filed three sets of submissions and had time to consider its position and amend its liability notice but has not done so. I note the insurer’s final submissions suggested the admission of fault on the part of Mr Missingham was a pragmatic approach to avoid further cost in particular costs associated with obtaining medical evidence. Having decided on the application of both parties to determine this matter on the papers and therefore not having had the opportunity to test the evidence presented by both parties, I do not consider it fair to Mr Brannigan to consider whether he is wholly at fault.
The claimant’s final submissions appear to acknowledge that there should be a finding of contributory negligence although at a degree below 61% but they stop short in conceding that there must be a finding of contributory negligence.
In the light of the evidence from all witnesses being untested by examination and cross-examination, in my view a finding of contributory negligence is inevitable in the light of the findings I have made above. The claimant was standing in the middle of a lane of a country highway in the dark trying to flag down a passing car. A reasonable person in the position of the claimant, having been involved in at least one near miss would have known of the risk of continuing to stand in the road. A reasonable person in the claimant’s position would have stood to the side of the road and attempted to flag down a passing car from the safety of a position outside the fog line.

What is the relative culpability of the two protagonists?

In Podrebersek, the High Court confirmed that the way in which the degree of contributory negligence is to be assessed is to consider the culpability of the two parties including the relative importance of the acts of each party in causing the damage and a comparative consideration of their whole conduct.
Before proceeding to the consideration of Mr Missingham’s and the claimant’s conduct I need to consider an issue which has loomed large in the submissions of both parties.

Was Mr Brannigan under the influence of drugs?

Mr Brannigan’s is reported in the hospital notes as having taken “a bunch of pills” during the police chase before the accident. His mother said he had taken Xanax “lots of tablets of them” and then he was involved in the police chase. Neither Mr Brannigan, or his mother have addressed this in their statements. The Gold Coast Hospital material was attached to the insurer’s bundle file in March 2023 and the claimant and his mother’s statements were signed and dated in January 2023. As this assessment is being undertaken on the papers, they have not had an opportunity to provide oral evidence and respond.
The hospital records reveal that Mr Brannigan’s Glasgow Coma Scale at the scene of the accident was not normal (13 out of 15) and that he had a significant period of time in intensive care and later there is evidence of post traumatic amnesia. The claimant sustained a head injury and multiple internal injuries. There is no expert evidence as to how those conditions might have affected the claimant at the scene of the accident or his ability to recall details and give an accurate history to those who were examining him in the days and weeks after his accident. I also note that after the accident (and not before it) the claimant was expressing suicidal thoughts because of the extent of his injuries which suggests to me a level of impaired thinking.

The current evidence about his drug taking on the night before or day of the accident is untested and therefore in my view unreliable.
Even if I accepted the record in the hospital notes and was satisfied that Mr Brannigan had consumed drugs in the hours before the accident, I would not be prepared to make a finding that Mr Brannigan was under the influence of those drugs. There is no precise quantification of the amount of drugs he is alleged to have taken, the time he is alleged to have taken them and the effect of them on Mr Brannigan, an alleged heavy user of them.
I am not therefore satisfied that Mr Brannigan was under the influence of drugs or that his judgment on the morning of the accident was impaired as a result.

What is the relative conduct of the parties?

In Mr Missingham’s case, I have found he was travelling below the speed limit. One of the reasons for this cautious approach he says is because this is a “very dark stretch of road” and that animals can “stray out from the side of the road”. On the basis of that evidence, it is therefore troubling why Mr Missingham was not using his lights on high beam. There may of course be an explanation, such as a vehicle ahead or approaching, but there is no evidence from Mr Missingham about the presence of any other vehicles.
While there is no expert evidence, the extract from the Road Rules provided by the insurer and common knowledge is that headlights on high beam throw light further than headlights on low beam. Mr Missingham has said that animals can stray onto the road and, while he may not have been expecting human activity on the road, in my view a reasonable person in his position would have had their lights on high beam to avoid the risk of colliding with or swerving to avoid an unexpected object or animal on the roadway.
Mr Missingham’s fault or negligence is however in my view slight. He had his lights on, it was dark, and Mr Brannigan would have been able to (and did) see Mr Missingham for a much greater distance that the 25 metres Mr Missingham had to see Mr Brannigan, react and take action.
There is no dispute that there was no day light or twilight and there was no lighting in the area. It was an unlit, dark country highway where pedestrians would not be expected. Mr Brannigan had been walking, facing oncoming traffic, giving him the opportunity to see approaching vehicles before they could see him. But I have found that, at the time of the accident Mr Brannigan was standing in the roadway on Bruxner Highway while trying to flag down a motorist shortly before impact.
Mr Brannigan said he remembered cars passing him with high-beam headlights or spotlights on and that he tried to flag them down, but no one stopped. One of those drivers must have been Ms Lethorn and she says he was standing on the roadway. The claimant then says he recalled seeing another vehicle approaching with its low beam lights on and he tried to flag that down too. This vehicle must be Mr Missingham’s. Mr Brannigan says it appeared the driver had not seen him and was not going to stop. Having seen the approach of this vehicle, and appreciating it was not going to stop, Mr Brannigan who was standing in the roadway moved not to the fog line and away from the traffic lanes, but further onto the Highway towards the centre of the road. Whether this was a deliberate conscious choice, or an agony of the moment instinctive movement has not been tested but the substantial cause of the accident in my view is Mr Brannigan continuing to stand in the roadway when he could see Mr Missingham’s vehicle approaching.

What is the degree of Mr Brannigan’s contributory negligence?

Both parties have provided a number of cases concerning duty of care, breach and contributory negligence. While each matter is decided on their own facts, previous cases involving similar facts and circumstances are useful in calibrating the assessment of the degree of contributory negligence. Many of the cases referred to by the claimant involve pedestrians crossing the road at night in suburban settings.
Accepting Mr Brannigan’s version of events and considering the other evidence and factual findings made as outlined above, I am of the view Mr Brannigan was more culpable than Mr Missingham and I assess his contributory negligence at 70%.
At the scene of the accident, shortly after the collision, Mr Missingham told the police that the claimant was not looking at him, then the claimant noticed him and as Mr Missingham veered to the right to avoid Mr Brannigan, Mr Brannigan moved to Mr Missingham’s right and the collision occurred.
If that evidence was adduced at a hearing, tested and accepted, that would suggest an even greater culpability on the part of Mr Brannigan than Mr Missingham. It is dangerous to stand in a lane of a dark country highway and even more dangerous to stand in a lane of a dark country highway not watching for approaching traffic. I would have found the claimant’s contributory negligence to be at least 80% in such circumstances. If it was established that Mr Brannigan was intoxicated and his judgment impaired, I would have found his contributory negligence to be greater than 80%.

CONCLUSION

Having assessed Mr Brannigan’s contributory negligence at 70%, it therefore follows that he is mostly at fault for causing his accident.
I note the insurer agrees that Mr Brannigan should be awarded costs outside the regulates fees in accordance with s 8.10(4) because there are exceptional circumstances that justify the awarding of costs on that basis. In my view this is appropriate. Both parties have provided lengthy submissions. There were several statements to be considered from the insurer and to be obtained by the claimant.
I do not propose to determine the quantum of costs. In the absence of agreement as to the amount of costs, the parties can refer the matter to the Commission for assessment noting the provisions of Schedule 2(1)(aa) of the MAI Act.

[2023] NSWPIC 237

25 May 2023