Byishimo v NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Byishimo v NRMA [2021] NSWPIC 338
CLAIMANT:	Samson Byishimo
INSURER:	NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	25 August 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims; contributory negligence; whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Motor Accident Injuries Act 2017; pedestrian claimant crossed southbound lane and was hit by insured vehicle travelling at speed in northbound lane; CCTV footage; whether claimant kept a proper lookout; Held - contributory negligence assessed at 15%.
DETERMINATIONS MADE:	The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident. 2. Effective Date: this determination takes effect on 20 March 2021. 3. Legal Costs: the amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $900 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a miscellaneous claims assessment dispute under clause 3(g) of Schedule 2 of the Motor Accident Injuries Act 2017 (MAI Act) as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38.

The claimant was injured in a motor vehicle accident occurring on 19 September 2020. He lodged a claim for statutory benefits with the insurer on 20 September 2020.
The insurer accepted liability for statutory benefits for the first 26 weeks.
By way of notice dated 14 December 2020 the insurer advised that investigations were ongoing and continued payment of statutory benefits.
By way of notice dated 19 February 2021 the insurer advised the claimant that payments of weekly statutory benefits would be reduced by 30% from 20 March 2021, being the insurer’s assessment of contributory negligence.
The claimant thereafter applied for an internal review on 17 March 2021.
The internal review decision of 6 April 2021 maintained the original decision of 30% contributory negligence.
The claimant subsequently lodged an Application with the Personal Injury Commission (PIC). The dispute has been allocated to me for determination.
A teleconference was held on 30 June 2021. The representatives of both parties advised that no further evidence would be relied upon and it was appropriate for me to determine the dispute “on the papers”.
The claimant’s lawyers subsequently advised by way of letter dated 2 August 2021 that the insured driver had pled guilty to a number of offences in respect of the accident. The letter is concluded stating that “we confirm that we will be seeking written confirmation of the above, and will provide same upon receipt”.
On 25 August 2021 I requested the parties to indicate whether they wished for me to await the “written confirmation” referred to in the paragraph above before issuing my decision. Both parties indicated that I should proceed with the decision in the absence of same. The claimant’s solicitor indicated that the relevant information had been requested via a Government Information (Public Access) Act 2009 NSW and it will be some time before the information became available.
On the basis of the above, I have proceeded to make my decision in the absence of the material referred to above. I am satisfied that there is sufficient information before me to make a determination in accordance with the MAI Act.

Documents considered

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

Circumstances of the accident and evidence considered

The claimant was a pedestrian walking across Lake Avenue, Cringila in the westerly direction. The insured was travelling in a northerly direction along such road when a collision occurred between the insured vehicle and the claimant.
Lake Avenue is a sealed bitumen road travelling in a north/south direction. There is one lane in each direction divided by a double unbroken line.
The speed limit is 50 km/h.
The information before me suggests there is a marked pedestrian crossing located approximately 100 metres north from the accident site.
The NSW Police report includes the following description of the accident:
About 10:05pm on Saturday the 19thh of September 2020 the pedestrian was walking west across Lake Avenue, Cringila. The pedestrian was walking to his vehicle that was parked on the western side of the road.
As the pedestrian was half way through the northbound lane the front portion of vehicle one collided heavily into him. The pedestrian was ejected over the vehicle and impacted heavily with the road.
Vehicle one failed to stop after the impact and left the scene.
The NSW Health St George Hospital Clinical Notes following the accident record that the claimant was suffering retrograde amnesia, and could not remember any events past 6pm. The notes also indicate that the claimant had consumed alcohol. I do not appear to have before me, however, any evidence as to the level of the claimant’s blood alcohol at the relevant time.
The Application for Personal Injury Benefits dated 20 September 2020, states: “Pt unable to recall what happened”. This form was clearly completed whilst the claimant was an inpatient in hospital and I have presumed was completed by someone other than the claimant, and likely a hospital staff member.
The insurer obtained an investigation report of Quantumcorp dated 17 December 2020 and a supplementary report dated 4 February 2021. The investigators were not able to obtain a statement of the insured. They did, however, obtain a statement of the claimant.
The statement indicates that the claimant was very familiar with the accident location, having resided in the area for around 10 years. He states that he was intending to retrieve something from my vehicle and then go back to my cousins who were standing in front of the Cellars on the corner.
Paragraph 36 of the statement is particularly relevant as to the circumstances of the accident:
At the time of the collision, I was standing at the corner of Lake Ave and Bethlehem Street, Cringila NSW. I commenced crossing Lake Ave from the eastern kerb to reach the western kerb where my vehicle was parked. I conducted head checks to my left and right prior to proceeding to cross the roadway. From here, I was struck by the unknown vehicle however, I do not recall being struck.
It is then stated that the claimant’s next recollection was waking up at hospital.
In a very much helpful development, the claimant’s cousin apparently obtained CCTV footage from the Cringila Cellars which depicts the accident. That evidence is before me and I have viewed the footage carefully. I have discussed this further below.
I do not have before me any expert evidence from a traffic engineer or similar. The investigation report of Quantumcorp does however include several photographs of the accident location, including photographs taken a various locations in the direction of travel of the insured from 50, 30 and 10 metres. All have a clear view of the identified accident location (confirmed on the CCTV footage).
Measurements have been detailed in the investigation report of the width of the lanes at the accident location. On the southern side is side lane for parked vehicles (where the claimant stepped from the kerb) which measures 3.2 metres. There is then a
3 metre lane travelling south and a 3 metre lane travelling north (the direction of the insured) and an additional 3 metre wide lane where the claimant’s vehicle was apparently parked.
Whilst the claimant mentions in his statement that his cousins were witnesses to the accident, there are no statements from witnesses included in the Quantumcorp reports. It is stated in the supplementary report of 4 February 2021 that witness; John-Paul Rabibi, was to be subject of an interview the investigators were not successful in obtaining a statement. A time was scheduled, however, the witness was busy at the time and advised he would phone back. Apparently this did not occur.
I do have before me, however, a statement of witness; Stiven Sitnikoski dated 17 March 2021. It is stated that he is friends with a cousin of the claimant.
The witness indicates that he was standing outside the home of Innocent Rabibi (the cousin of the claimant) around 50 metres from the relevant intersection. He states that the claimant was standing at the relevant corner with some friends.
He states that he saw the claimant cross the road but did not see him step on to the road. He goes on to state:
After Samson stepped on to the road, I saw a flash go through the road right past where Samson had been standing.
My back was facing the houses, but my head was turned toward the road so I could see Samson be struck
The statement confirms the insured appeared to flee from the scene, not stopping to render assistance.
The witness states that the insured appeared to be going well in excess of the speed limit of 50 km/h.
The claimant has also included a screenshot of google maps view of Lake Avenue denoting the hill. The screenshot includes the measurement of 116 metres from the crest of a hill from where the insured travelled from to the accident location. I accept from the photographs provided by both parties and the google maps screenshot that the insured had a line of sight from at least the top of the crest to the accident location including the point where the claimant stepped onto the roadway. Similarly, I am satisfied that the claimant, from the accident location and from the point where he stepped onto the roadway, was also able to view vehicles travelling in a northerly direction from at least the crest of the hill (116metres). This is confirmed by a photograph relied upon by the claimant that is taken from where the claimant began his journey across the roadway looking up to the crest of the hill.
There is no statement from the insured driver. The investigators did make attempts to obtain same, however, have been unsuccessful to date. Similarly, attempts to date to conduct an interview with the investigating NSW Police officer had not been successful.
There is a letter provided by the claimant’s solicitors dated 2 August 2021. It advises that the insured had pled guilty to criminal charges arising from the subject accident. It advises that on 23 July 2021 he was sentenced to an aggregate term of imprisonment for 18 months to be served by way of intensive corrections order from 23 July 2021 to 22 January 2023. He is said to have also received conditions that dictate that he must complete community service and is disqualified from holding a driver licence.
The letter also states that the solicitors would be seeking written confirmation of the information which would be provided to the Commission. Due to this I sought confirmation from the parties as to whether they wished for me to await same before I issued a determination. Both parties agreed that it was preferable for me to issue the Determination rather than await any further information.

Submissions

The submissions included with the application for internal review dated 17 March 2021 state as follows:
Mr Byishimo’s contributory negligence should be reduced to 0%. Mr Byishimo looked at the road at 21.43.13pm as he began to cross the road and he was struck 6 seconds later at 21.43.19pm. There is a hill on this road 116 metres from where Mr Byishimo was struck, and if a car were travelling at 50km/h (the speed limit) it would take that car approximately 8.35 seconds to travel from the first visible point at the crest of the hill to where Mr Byishimo was struck. The car was speeding, well in excess of 50km/h, and it would not have been possible for Mr Byishimo to see the car before he was struck and to move out of the way in time due to the speed of the car.
There are supplementary submissions from the claimant’s representatives. They do not, however, deal with the substantive issues and deal with provision of documents and the scope of the dispute. It is stated that there is no dispute as to an entitlement to ongoing statutory benefits, and the dispute is only as to the assessment of contributory negligence. It is true that the insurer’s submissions refer to sections 3.11 and 3.28 of the MAI Act which deal with the cessation of statutory benefits after 26 weeks. All available information before me, including the balance of the insurer’s submissions are such that I have limited my determination to the issue of contributory negligence, and specifically section 3.38 which provides for the reduction of statutory benefits after 26 weeks by the percentage of contributory negligence.
In submissions dated 18 May 2021, the insurer refers to the CCTV footage and submits that the claimant did not check left or right before crossing the roadway, during crossing or prior to entering the north bound lane. It is further submitted:
“the CCTV footage confirms that Mr Byishimo did not appear to look towards the approaching vehicle, did not change his pace, equally he did not wait for the car to pass nor did he acknowledge the presence of the approaching vehicle and he did not appear to take any evasive action to avoid the collision, rather he simply appears to continue his path toward his parked vehicles.”
The submissions prudently acknowledge that the insured was travelling at speed, took no evasive action to avoid the collision and did not slow down and did not stop after the collision.
It is submitted that the accident location was well lit and neither party had an obstructed view. Based on the CCTV footage it is stated that the claimant was hit at high speed when in the middle of the northbound lane.
It is submitted by the insurer that the claimant chose not to avail himself to the traffic light controlled pedestrian crossing located approximately 100 metres from the accident location. It is submitted that the claimant placed himself in a dangerous situation by choosing to ignore a reasonably available and safe pedestrian crossing.
It also submitted that the claimant had consumed alcohol and his “judgement, attention and vision could have been impaired by the effects of the alcohol”.
The insurer refers to the case of Mobbs & Anor v Kain (2009) 54 MVR 179, where it was found:
“to find breach for failing to take precautions against a risk of harm, not only must the risk be foreseeable and not insignificant, it must also be such as, in the circumstances, a reasonable person in the person’s position would have taken those precautions.”
Also referred to by the insurer, is the case of T & X Company Pty Ltd v Chivas [2014] NSWCA 235 where the court found that the seriousness of harm caused by a vehicle does not diminish the pedestrian plaintiff’s responsibility for the accident. Further, the finding of Basten JA in such case is referred to where it was found that section 5R of the Civil Liability Act 2002 was such that people are to take responsibility for their own lives and safety.
Finally, the insurer noted the Court’s finding that the conduct of both a driver and pedestrian should be equally conscious of the fact that a motor vehicle can cause far greater damage, when compared to the capacity of a pedestrian to cause damage.
The insurer also refers to the case of Taheer v Australian Associated Motor Insurers Ltd [2010] NSWCA 191 where the court found 30% contributory negligence against a pedestrian plaintiff, where Giles J found:
“a reasonable person in the position of the appellant, taking care for his or her own safety, should keep a proper lookout for cars on the road before crossing, whatever the time of day and however that person is dressed. Dusk or darkness and wearing dark clothing can enhance the car required of the reasonable person, because he or she will be harder to see.”
The insurer also submits, pursuant to Gordon v Truong; Truong v Gordon [2014] NSWCA 97 that once it be shown that a pedestrian has not kept a proper lookout for oncoming motor vehicles, it follows that there should be a finding of contributory negligence. In that case, it was assessed at 30%.
The insurer’s submissions conclude by stating that the claimant failed to keep a proper lookout and exhibited disregard for his own safety.

Reasons

As mentioned above, I have carefully reviewed the CCTV footage of the accident. I agree with the insurer’s submission that the claimant does not appear to look in either direction when entering the northbound lane, or the earlier southbound lane. I also accept that the claimant did not change his pace or take any action that would indicate that he was aware of the presence of the insured vehicle approaching. I have therefore concluded that the claimant did fail to keep a proper lookout before entering the roadway and before entering the northbound lane.
The footage confirms that the area was well lit and there was very light traffic.
Most pertinently, the footage confirms that the insured driver did not slow down at all on approach, took no evasive action and continued to drive post collision. Whilst I do not have before me expert evidence to confirm the speed of the insured vehicle, it does appear that the vehicle was at speed (a conclusion that is conceded by the insurer). It would be presumably possible for an expert to calculate the speed of the vehicle accurately with the benefit of the CCTV footage. However, no such evidence is before me.
However, it is possible to make some calculations as to the possible times available for both the insured and the claimant to observe each other.
It is submitted on behalf of the claimant (in the internal review application) that based on the 116 metres from the crest of the hill the claimant would not have had the opportunity to observe the insured. The submissions otherwise state that if the insured was travelling at the speed limit he would have had 8.35 seconds to observe the claimant. Whilst such calculation may be correct, that is not to say that even travelling at speed that both the insured and the claimant would not have had the opportunity to observe each other prior to the collision occurring.
Upon viewing the CCTV footage it is evidence that the claimant entered the southbound lane at the recorded time of 21.43.14 and had stepped into the northbound lane at 21.43.18. Therefore, it was between 3 to 4 seconds from when the claimant began to traverse from the southbound lane until he reached the northbound lane. The collision occurs in the approximate middle of the northbound lane at 21.43.20.
Whilst I do not have expert evidence before me as to the sight times available to the claimant and the insured, even based upon a speed of 100km/h (double the speed limit), from the point of the crest of the hill at 116 metres away, the claimant would have had approximately 4 seconds to observe the approach of the insured vehicle. That is from approximately the time he commenced his journey from the start of the southbound lane the insured vehicle would have been visible. Of course, similarly, as the insured was approaching the accident location the claimant would have been visible the entire time he was walking across the roadway.
Based upon the above, and the CCTV footage of the accident which I have found demonstrates the claimant did not take a proper lookout, I am satisfied that the claimant did not take reasonable care for his own safety.
I do not accept the claimant’s evidence that he looked both ways, given the contents of the CCTV footage together with the fact the hospital records confirm amnesia for the entire relevant period.

However, I do not accept that a person in the position of the claimant would have reasonably taken steps to use the pedestrian crossing approximately 100 metres away. In this regard, the traffic was light, the area was well lit and the claimant’s vehicle (intended destination) was directly opposite. I consider a reasonable person in the position of the claimant would have decided to traverse across the roadway at the point chosen by the claimant.
Whilst submissions are made by the insurer as to the claimant’s judgment was affected by alcohol, I have no evidence before that satisfies me that the level of alcohol in the claimant’s blood would have done so. I therefore have not taken this factor into consideration.
However, I find that a reasonable person in the position of the claimant would have taken steps to keep a proper lookout for oncoming vehicles before entering the roadway and again before entering the northbound lane. In this regard I have found above that the claimant failed to keep a proper lookout. As such, pursuant to section 5R of the Civil Liability Act 1999, I find there is contributory negligence.
In terms of the percentage of contributory negligence, it is very clear from the material before me that the insured was particularly culpable given the clear lack of any evasive action taken to avoid the collision. It also is abundantly clear that he failed to keep a proper lookout and was travelling at speed. Whilst a calculation of speed by an expert is not available to me, the contention that the insured was speeding is conceded by the insurer who notes he was travelling “at speed.”

I have found above that the claimant did not keep a proper lookout and a reasonable person in his position would have taken steps to look for oncoming vehicles before entering the roadway, and before entering the northbound lane. Therefore, I conclude that I must make a finding of contributory negligence. I am satisfied that the culpability of the insured as to the accident far outweighs that of the claimant. On account of the findings set out in the paragraph above as to the conduct of the insured, I make a finding of 15% contributory negligence.

Costs and disbursements

63. The material before me does not include an application or submissions as to costs from either party.

64. Under Schedule 2(3)(g) of the MAI Act, this dispute is declared to be a miscellaneous claims assesement matter for the purposes of Part of the MAI Act.

65. Under Schedule 1(3)(1) of the Mortor Accident Injuries Regulation 2017 (the Regulation), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regualted miscellaneous claims assesemnt mater is 16 monetary units.

66. Having regard to the dispute, and that I have made a finding in favour of the claimant as compared to the position of the insurer, I am satisfied that the claimant ought to be awarded an amount for costs.

67. However, the application lodged on behalf of the claimant does not include submissions as to the substantive issue for me to determine. There were some short submissions included in the internal review application with photographs, a screenshot of google maps and the statement of Mr Sitnikoski. However, legal costs are not recoverable in respect of internal review.

68. In terms of these proceedings the claimant's representatives lodged the application, participated in a teleconference, prepared short submissions in response to the insurer's submissions (however not to the substantive issue of contributory negligence), and prepared a letter as to the insured's criminal proceedings. Overall, the legal work in the current proceedings was minimal.

69. Applying my discretion and experience, I allow costs in the sum of $900 plus GST.

Conclusion

70. My determination of the Miscellaneous Claim is as follows:

(a) for the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident;
(b) I have determined contributory neglience to be 15%;
(c) effective date: this determination takes effect on 20 March 2021, and
(d) legal costs: the amount of the Claimant’s costs assessed in accordance with the Regulation, is $900 plus GST.

Legislation

71. In making my decision I have considered the following legislation and guidelines:

MAI Act
the Regulation

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 338

25 August 2021