Carulli v Allianz
[2021] NSWPIC 425
•29 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Carulli v Allianz [2021] NSWPIC 425 |
| CLAIMANT: | Anthony Carulli |
| INSURER: | Allianz |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 29 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Mostly at fault decision; Held - not caused mostly by the fault of the injured person; lane filtering; claimant travelling under 30 kph; dispute as to excessive speed; regulation 151A of the Road Rules 2014. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 or section 3.28(2) the motor accident was not caused mostly by the fault of the injured person; 2. Effective Date: This determination takes effect on 29 September 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 and the Personal Injury Commission Regulation 2020 is $1826.18 inclusive of 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
At about 6:05pm on 28 August 2020 Anthony Carulli (the Claimant) was riding a motorcycle, a white Harley Davidson V-Rod registration BXD6, travelling from his workplace to his home in conditions of good visibility on the M-1 motorway near River Road, Revesby, in conditions of heavy traffic at peak hour when his motorcycle came into collision with the insured vehicle, a white Ford Ranger Utility registration DXV23S driven by one David Norman Hickey.
As a result of the collision the Claimant sustained injuries which are agreed were not minor.
The issue in dispute is that the Insurer has determined the Claimant was wholly at fault which the Claimant disputes.
CHRONOLOGY
I briefly set out the chronology:
10 August 1978 Birth of Claimant 28 August 2020 at 6:05 pm Subject accident 31 August 2020 Claimant’s Application for personal injury benefits 27 January 2021 Certificate of Determination of the Insurer that the Claimant was wholly at fault for the accident 31 March 2021 Determination on Internal Review maintaining that the Claimant was wholly at fault.
EVIDENCE
Statement of the Claimant 1 October 2020
The Claimant provided a Statement to David O’Neill on 1 October 2020 which I briefly summarise by reference to paragraph numbers where relevant to my determination:
[20] At about 6:05pm 28 August 2020 – subject accident.
[21] Was riding a Harley Davidson motorcycle.
[26] Was travelling from workplace to home.
[28] His view was clear.
[31] Was not feeling tired.
[32] Conditions were fine. The road was dry.
[33] The visibility was good. The sun was setting but had not fully set.
[34] At the location of the accident the M-5 runs east-west, and the closest side street was River Road, Revesby. At the occasion of the collision the M5 has three lanes in each direction marked by single broken lines.
[37] The speed limit is 100 kph.
[38] The roadway where the collision occurred was bitumen sealed, straight and flat.
[39] Very familiar with the roadway where the collision occurred.
[40] Traffic was dense, stopping and starting due to the congestion. Peak hour. No parked cars.
[44] The traffic had been moving slowly at about 20 – 30 kph so he had been lane filtering for about 300 metres prior to first merging behind the insured vehicle.
[45] First recalls seeing the Ute about 50m before the accident. Followed behind it in the middle of lane two. Traffic was coasting at about 20-30 kph.
[46] Was coasting behind the Ute maintaining a safe distance of about 3-4 metres. Put his left indicator on, checked his blind spot and mirrors. Saw a truck on his left side of the Ute in lane one but doesn’t know if it was the front or the back of the truck. He was near the middle of the truck which was going a little faster than the Ute.
[47] It looked clear to merge left between the Ute and the truck and lane filter as it was open between the vehicles, and he had plenty of room. The truck and the Ute were in the centre of their lanes when he first attempted to lane filter between them.
[48] Ute started to slow down gradually as he began to lane filter. The Claimant was travelling at about 30 kph.
[49] He approached the Ute and was only about 1 metre or less from it at the time of the incident. There was a lot of space between the Ute and the truck immediately before the incident. The truck was on his left.
[50] The Ute immediately and unexpectedly moved to the left closing the gap between himself and the truck and the driver of the Ute applied its brakes suddenly.
[51] No time to take evasive action to avoid the impact.
[52] The Claimant’s right hand was holding the grip of his motorcycle when he applied the front brake after the Ute brake checked him. His right hand then collided with the passenger side rear brake light. His hand cracked the brake light casing and his pointer finger got sliced open. This caused him to lose balance and he felt something hit the left side of his body as he swerved left a bit after losing balance. He got hit on the left side of his body including his left shoulder and head.
[53] He was pulled up over the handlebars and over his bike landing on the road. He rolled on the road and then felt another impact on his head.
[61] After the accident he was unconscious for some time.
Statement of the insured driver 26 October 2020
David Norman Hickey, the insured driver, provided a Statement on 26 October 2020 which I briefly summarise by reference to the paragraph numbers so far as is relevant.
[15] Was involved in the collision at about 6:05pm 28 August 2020.
[16] Was driving his employers work vehicle a Ford Ranger Utility.
[20] Was travelling from his workplace to his home.
[26] The weather conditions were fine. The road was dry.
[27] Visibility was average. Sun had not fully set. It was almost fully dark, but the headlights were on. The area where the incident occurred is fairly well lit.
[28] The M5 runs in an east west direction. The accident happened on the M5 motorway where the exit ramp begins to River Road, Revesby.
[30] The speed limit is 100 kph.
[32] Was very familiar with the roadway.
[33] Traffic density was heavy. There were numerous vehicles in front, beside and behind.
[37] Was driving normally. Traffic was stop start up to about 80 kph then slowing again.
[38] The Incident occurred where the exit lane begins at River Road. Was flowing in traffic at about 80 kph and looking in front. Traffic in his lane came to a hard and sudden stop and suddenly to slow down.
[39] Looked in his mirrors when braking making sure the vehicle behind was going to stop. Saw it slowing down. He saw dual headlights of a car behind him and that is all he could see. He then heard and felt a big thud on his car when he was braking.
[40] His speed at the point of impact was about 30 kph. He does not know what the speed of the motorcycle was, and he does not know what part of the bike impacted on his vehicle.
[41] He does not know what lane the motorcycle rider had been in.
SUBMISSIONS
Claimant’s submissions of 9 March 2021
I briefly summarise by reference to paragraph numbers:
[5] Concedes he was lane filtering.
[6] Submits he was complying with the provisions of s 151A of the Australian Road Rules.
[7] Submits he was entitled to ride between vehicles travelling in the same direction in adjacent marked lanes of traffic and was not unlawfully lane filtering. He had been doing so for only about 300 metres.
[9] He was complying with Rule 151A of the Australian Road Rules insofar as he was not riding at a speed of more than 30 kph.
[10] The Internal Review Decision relies on the following determinations as to the speed of 60 – 90 kph: -
[11] The vehicles on either side were travelling 60-90 kph.
[12] The Insurer relies on the evidence of the Insured Driver and the driver of the prime mover that they were travelling between 60 and 90 kph immediately before the accident.
[13] The Insured Driver David Hickey states at the time the accident occurred he had slowed down from a previous speed 80 kph because the traffic had slowed down and his speed at the point of impact was about 30 kph. This evidence is inconsistent with the determination of travelling at 60 to 90 kph immediately before the accident.
[14] A file note from the investigator, David O’Neil of 12 November 2020 is a record of the conversation between himself and Mr Lewis that Mr Lewis did not witness the actual collision or the events before the collision.
[15] The account provided by Mr Lewis to Senior Constable Spears is also inconsistent with the likely speed of the traffic on the motorway.
[16] The clear evidence of the Claimant was that he was moving slowly between 20-30 kph.
[17] The alleged speed of the traffic is inconsistent with peak hours.
[18] Submits that it is incorrect that he failed to keep a safe distance from the insured vehicle and maintained he was lane filtering in a safe manner and slowing traffic that when he commenced the manoeuvre there was a lot of space.
[19] The actions of the Ute moving to the left without warning caused the collision.
[20] There are warning spots on all motorways reminding drivers to check their blind spots for motorbikes.
[21] Such a warning is consistent with the permission of the practice of lane filtering to assist with traffic flow at peak hour.
[22] Lane filtering involves vehicles travelling side by side in slow moving traffic and is inconsistent with the allegation of failing to keep a safe distance.
[23] Refers to the excerpt from the RMS driving test encouraging drivers to be aware of blind spots.
[24] The Insured Driver concedes he did not see the motorbike before the collision.
Insurer’s submissions of 31 March 2021
I briefly summarise the Insurer’s submissions of 31 March 2021 by reference to the paragraph numbers:
[4] The Claimant has been charged with “negligent driving” by NSW Police.
[5] The Claimant concedes he was lane filtering when the collision occurred.
[7] Submits that the traffic in lanes 2 and 3 was travelling at 60 to 90 kph
[8] The Claimant was not permitted to lane filter relying on the Motorcycle Riders’ Handbook which provides:
“Lane filtering is not allowed through moving traffic…”
[10] It was unlawful for the Claimant to lane filter through moving traffic and this was not permitted by Rule 151A of the Road Rules 2014 (NSW).
[11] Submits the Claimant failed to keep a proper lookout.
[13] Traffic was travelling in a stop start manner requiring the Insured Driver to make a hard stop. The Claimant failed to take notice and collided with the Insured Driver’s vehicle as a result.
[14] A reasonable person in the position of the claimant would have observed that the traffic ahead was slowing abruptly and would have been in a position to stop or move to where they could safely lane filter.
[15] The Claimant failed to keep a safe distance with the Insured’s vehicle at the time of the accident.
[17] The Claimant conceded that he was travelling about 1 metre or less from the Ute when the incident occurred. The Claimant was required to keep a 3 second distance. Travelling at 30 kph this would be approximately 25 metres.
[19] The Claimant has breached Road Rule 126 requiring him to keep a safe distance.
[21] The Insured Driver could not have reasonably avoided a collision with the Claimant or acted differently in the circumstances.
[22] The Insured Driver was wholly within his lane at the point of impact and was not “lane checking” the Claimant as alleged.
[23] Insurer relies on Knight v Maclean [2002] NSWCA 314.
[24] Applying the logic of the case, the manner the Insured Driver was driving in was appropriate and reasonable in the circumstances and was that of a prudent driver. The Insured Driver was driving with the flow of traffic and within his lane and has responded appropriately to the traffic conditions.
[25] The Insurer does not accept that the Insured Driver has acted negligently by coming to a stop immediately before the collision occurred.
[26] Submits the Insured Driver was travelling within his lane and was not attempting to change lanes when the accident occurred.
[26.2] the driver of the Prime Mover gave evidence to the police that the Insured Driver stayed in his lane.
[26.3] The Claimant also gave evidence that the Insured Driver was within his lane.
[27] The Insured Driver did not “break check” the Claimant. The Insured Driver did not see the Claimant’s vehicle approached and only noticed the Claimant’s presence after the accident occurred.
[28] The Insurer submits that the Insured Driver could not have reasonably taken any evasive action to avoid the collision.
LEGAL FRAMEWORK
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (the MAI Act);
·Motor Accident Guidelines/Personal Injury Commission Rules 2021;
·Civil Liability Act 2002, and
·Road Rules 2014 (NSW).
Section 3.11 of the MAI Act states:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b)the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Section 5R of the Civil Liability Act 2002 provides:
‘5RStandard of contributory negligence
(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 that harm
(2) For that purpose:
(a)the standard of care required of 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’
Road Rules 2014 Regulation 151A provides:
“151A Lane filtering between vehicles on a motor bike
(1) A rider of a motor bike is "lane filtering" along a length of road if the rider rides the motor bike between 2 vehicles, each vehicle travelling in—
(a)the same direction as the motor bike; and
(b)separate, but adjacent, marked lanes or lines of traffic.
(2) The rider of a motor bike must not unlawfully lane filter along a length of road.
Offence provision.
(3) For subrule (2), it is unlawful for a rider to lane filter along a length of road if any of the following circumstances apply:
(a)the rider is edge filtering;
(b)the rider is riding at a speed of more than 30 km/h;
(c)the rider is riding in a school zone (unless the rider is permitted to lane filter in a school zone under another law of this jurisdiction);
(d)a no filtering sign applies to the length of road;
(e)it is not safe to lane filter.”
Case Law
The common law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:
‘……an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.’
At 34 His Honour referred to the judgment of the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man……and the relative importance of the acts of the parties in causing the damage…….it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’
In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
‘[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ……
[117] ,..the High Court held in Sibley v Kais [1967] HCA 43……that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 the court said:
‘The common law duty to act reasonably in all the circumstances if paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.’
His Honour continued:
‘[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander …..reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36] The driver is not required……to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event……the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] ….nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path…..
At [121] referring to the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182:
‘15. A driver is entitled to assume that others will observe the rules of the road. …….as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether, in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required……’
In Boral Bricks Pty Limited v Cosmidis (No 2) [2014] NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act at [99]–[100]:
“No distinction is made between the fact that from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, while from the perspective of the pedestrian, it was the likelihood of serious harm that was to be considered. If the plaintiff was aware, or ought to have been aware, of the presence of a large forklift operating in the area and the forklift driver ought to have been aware, or should have been aware, of the likely presence of pedestrians and, if each were careless, liability should be shared equally.
[100] A purposive approach to the operation of s 5R (s 5B) requires that this approach be adopted…”
McColl JA would have assessed contributory negligence at 10% (as against 30% from the majority) said [47]:
“The correct legal question in determining the issue of contributory negligence in accordance with s 5R is “whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had, or ought to have had, was negligent”...”
Again at [48] her Honour referred to section 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) which provides:
“the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage.”
McHugh J Vairy v Wyong Shire Council 223 CLR 422 also held that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case:
“Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 at [11].”
In Manley v Alexander [2005] HCA 79 Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway... at 4.00 am is... remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
CONSIDERATION
The Claimant submits that while he concedes he was lane filtering he had only done so for about 300 metres prior to the accident occurring and submits that he was entitled to travel between those vehicles travelling in the same direction but in adjacent marked lanes and that his lane filtering was not illegal.
It seems likely that the Claimant was not in breach of Regulation 151A(3) as the evidence supports the proposition that the Claimant was not exceeding a speed of 30 kph at the time of, or in the period it took him to ride about 300 metres prior to the accident. This is consistent with both the Statement of the Claimant and of the insured driver.
There is no evidence that there was any “no filtering” sign applicable to the road nor is there any evidence that it was not safe for the Claimant to lane filter.
The Claimant was the holder of an unrestricted motor bike rider licence.
The driver of the Prime Mover adds nothing to the determination of the facts for the reason that he did not see the accident happen.
The insured driver has conceded that he did not see the Claimant before the accident and was only aware of the Claimant being on the road after the accident had happened.
On the balance of probabilities a significant contributing factor to the accident was that the insured driver was not keeping a proper lookout and in particular was not keeping a proper lookout for motorcycle riders, including the Claimant, who may have been in his blind spot.
The insured driver on the evidence was not keeping a sufficient distance from the vehicle in front as if he had been doing so, he would have had to brake suddenly.
It is not determinative that the Claimant was issued with a traffic infringement notice for negligent driving.
The Insurer relies upon the statement made by the driver of the Prime Mover, Mark Lewis recorded in the Police Notebook. However, on 12 November 2020 Mr Lewis said to the investigator David O’Neil that he did not witness the actual collision or the events before the collision (my emphasis).
He said it appeared that the Claimant had been trying to lane filter, but he was not sure where the insured vehicle was or if the insured vehicle had tried to block the motorcycle.
This attenuates the value of the statement in the Police Notebook.
In any event Mr Lewis is recorded as having said, in answer to the question “what speed were you doing prior to the collision?”, that he was “slowing down to about 70 kph in traffic”.
As the Claimant submits this evidence of Mr Lewis is inconsistent with what Mr Hickey said which was that at the time of the accident, he had slowed down from a previous speed of about 80 kph because the traffic had slowed down and that his speed at the point of impact was about 30 kph.
On the balance of probabilities the Claimant was not lane filtering at a speed of 60 to 90 kph leading up to the collision.
The Insurer refers to the NSW Court of Appeal decision of Knight v Maclean [2002] NSWCA 314.
There is no doubt that you cannot expect a driver to drive in such a way so as to anticipate everything (applying to a pedestrian in that particular case).
This case was very different because the insured driver was driving too close to the vehicle in front, and he had to brake suddenly, and he was not keeping a proper look out in that he did not see the Claimant at all.
I do not consider that the Claimant was wholly at fault, either in the factual sense or within the meaning of section 3.11(2) of the MAI Act.
In arriving at this conclusion I take into account s 5R of the Civil Liability Act 2002.
I do not consider that the Claimant failed to take precautions from the risk of the harm that eventuated, such that his share of the responsibility was that he was mostly at fault. He was not. The driver of the insured motor vehicle significantly contributed to the cause of the accident by driving too close to the vehicle in front and by failing to keep a proper lookout for the Claimant.
I am not required to determine the precise degree of fault of the Claimant, but I do not find that he was mostly at fault for causing the accident within the meaning of section 3.11 of the MAI Act but that he was at fault to a significantly lesser extent.
Documents Considered
In making my decision I considered the following documents:
· Statement of the Claimant 1 October 2020 ;
· Statement of the insured driver 26 October 2020;
· Submissions of the Claimant 9 March 2021;
· Submissions of the Claimant 3 September 2021;
· Submissions of the Insurer 31 March 2021;
· File Note of David O’Neill (the Investigator) regarding Mark Lewis 12 November 2020, and
· Police Notebook.
LEGAL COSTS
I am satisfied the Claimant is entitled to payment of legal costs. I allow the Claimant’s legal costs of $1,660.16 to which GST is to be added (under clause 35 of the Regulation).
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
Effective Date: This determination takes effect on 29 September 2021.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020, Motor Accidents and Workers Compensation Legislation Amendment Regulation 2020 is $1,826.18 inclusive of GST.
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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