Cheng v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cheng v Allianz Australia Insurance Limited [2023] NSWPIC 642
CLAIMANT:	Lucy Cheng
INSURER:	Allianz
MEMBER:	Shana Radnan
DATE OF DECISION:	28 November 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous dispute; whether for the purposes of section 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident; the injured person turning left at intersection with four lane road and the insured turning right from holding bay; both entering four lane road and some metres beyond the intersection collision between both vehicle; the insurer alleged injured person 50% negligent; Held – injured person changed lanes into path of insured; for the purposes of section 3.38, the insurer is entitled to reduce statutory benefits payable in respect of the accident by 50%
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and clause 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.38 of the Motor Accident Injuries Act 2017 the insurer is entitled to reduce statutory benefits in respect of the motor vehicle accident by 50%. 2. Effective Date: this determination takes effect on 27 November 2023. 3. Legal Costs: nil as the claimant was not represented.

STATEMENT OF REASONS

Background:

Lucy Cheng (the claimant and injured person) was involved in a motor vehicle accident which took place on 27 September 2022 at the location of Anzac Parade, Maroubra Junction near the intersection of Boyce road.
The insurer made a liability determination on 15 February 2023 and the claimant sought a review of the determination. An internal review was undertaken at the request of the claimant (17 February 2023) and the insurer affirmed their decision.
The claimant has referred the dispute to the Personal Injury Commission (Commission) for determination of the allegation of contributory negligence.

The insurer’s determination – dated 15 February 2023

The insurer admitted breach of duty of care and alleged the claimant’s conduct amounted to 50% contributory negligence.
The claimant sought a review of the determination.

The determination of the review dated 10 March 2023

Lauren Emerson Parker, the internal reviewer affirmed the earlier decision as follows:
“The effect of this decision is Allianz would pay a percentage of your pre-accident weekly earnings. A 50% reduction will apply to the calculated weekly benefits to account for the claimant’s contribution to the accident. Allianz would also continue to pay the claimant’s reasonable and necessary medical and care expenses required due to injuries sustained in the motor vehicle accident.”
A summary of the reasoning for the determination by Ms Parker is reproduced below:
“1. The above outcome is consistent with my findings and reasons set below. I have the power to make this internal review decision in accordance with Schedule 2, Clause 3(g) of the Motor Accident Injuries Act 2017 ('the Act’) whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 (Reduction of weekly statutory benefits after 6 months for contributory negligence).
2.     You have lodged a claim for statutory benefits due to injuries arising from a motor accident which occurred on 27 September 2022.
3.     You seek a review of a decision that you were 50% contributorily negligent in the accident. This decision was made on 15 February 2023.
Relevant facts and materials:
1.     I have reviewed the Application for Personal Injury Benefits dated 7 October 2022 and note the following excerpt:
‘I was driving on Boyce rd on the left lane (as seen in image 1). As I approached the intersection, once the traffic lights turned with a left green arrow I turned left on to Anzac parade into the middle lane (as seen in image 2) as I had right of way. Unexpectedly, a car had turned at the same time from Boyce Rd the opposite side onto the lane on Anzac parade. The car had turned right onto my lane. I didn't see the car as I hadn't expected any cars to be turning at the same time as me when mine was on a green arrow traffic light. Barry (0423391660) a pedestrian walking by checked whether I was ok and told me that he saw their car turn right from Boyce rd onto Anzac parade and not give me the right of way I was supposed to have. Please see sketch of the accident in attached "Sketch" pdf.’
2.     I have reviewed the Factual Report dated 24 January 2023 and note the following excerpt: (italics in original form)
Record of Interview with You
Q 57 Yeah. So, for how much time were you driving before the accident?
A It was literally just out of our apartment so um, it... our apartment was like um, a quarter away so ...
Q 60 Did you have any passengers in your vehicle? A No. It was just me.
Q 61 Me. Yep. Alright. Just in your own words and as much detail as you can, can you tell me what happened?
A Yeah. I've actually written it down for the insurance company so I can just read that. Urn, so I was driving on Boyce Road on the left lane so I came out of my home ...
Q62 Yeah.
A ... um, went onto, turn onto Boyce Road um, and had ... I sent you some images Paul as well and when I approached the intersection between Boyce Road and Anzac Parade ...
Q63 Yep.
A ... um, once the traffic lights turned with a left green arrow, I turned onto Anzac Parade into the middle lane um, as I had the right of way. Unexpectedly, a car had turned at the same time from Boyce Road on the opposite side onto the lane on Anzac Parade ...
Q64 Yeah.
A ... um, so perpendicular, she was turning and the car turned um, onto the same lane. I didn't see the car as I hadn't expected any cars to be turning at the same time as me when mine was um, on a green arrow traffic light. Um, I actually didn't expect a car so I didn't really know where we crashed or what happened um, and then once I came down from the car, I was in shock. I have a, a witness, Barry. Um, he was a lovely older man. He um, so instantly stopped the car on the side and he made sure I was okay. He was a pedestrian walking by. Checked I was okay and told me that he had ... saw um, other party's car
turn right from Boyce Road onto Anzac Parade and not give me the right of way I was supposed to have.
Q 65 So,just explain to me how ... so Anzac Parade is three lanes, is that right? A One, two, three, four lanes.
3.     I have reviewed the Factual Report of Photographs and accident diagrams dated 7 February 2023 and note that the damage to your vehicle was to the front right corner at the headlight assembly and our insured's vehicle was to the front left corner above the wheel. I note your diagram of the accident which you allege that the accident occurred as you were turning left into Anzac Parade at the traffic lights. Further, I note that the Insured has alleged that the accident occurred when you both had already completed the turn into Anzac Parade and that you had swerved from Lane 1 into Lane 3 in which she was travelling in order to avoid a collision with a parked car in Lane 1 and collided with her vehicle.
4.      I have reviewed your Application for Internal Review dated 17 February 2023 in which you state that the diagram of the accident was incorrect and that your witness was not properly followed up on for key evidence.
Reviewer’s findings:
5. The assessment of contributory negligence is to be conducted in accordance with the requirements of sections 3.38 of the Act which requires that:
‘The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits’.
6.     In assessing contributory negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them as envisaged in Podrebersek v Australian Iron & Steel (1985) 59 ALR 529. It was said in this case that:
“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 ..”
Contributory Negligence:
7.     Having considered the evidence as above, I have determined that you were 50% contributorily negligent in the subject motor vehicle accident. The following is relied on in this respect.
8.     I accept that the Insured driver turning right into Anzac Parade from Boyce Road and.
9.     I note that s75 of the Road Rules states: (italics in original form)
‘75 Giving way when entering a road related area or adjacent land from a road
(1)A driver entering a road related area or adjacent land from a place on a road without traffic lights or a stop sign, stop line, give way sign or give way line must give way to-
(a)      any pedestrian on the road, and
(b)      any vehicle or pedestrian on any road related area that the driver crosses or enters, and
(c)       if the driver is turning right from the road-any oncoming vehicle on the road that is going straight ahead or turning left, and
(d)      if the road the driver is leaving ends at a T-intersection opposite the road related area or adjacent land and the driver is crossing the continuing road any vehicle on the continuing road.”
10.   I accept that you had right of way and the Insured driver should have given way to you. Further, I note that your comprehensive insurer found our insured driver to be at fault.
11. I refer to Section 5B of the Civil Liability Act which states:
5B General principles (Italics in original form)
(1)A person is not negligent in failing to take precautions against a risk of harm unless-
(a)       the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)       the risk was not insignificant, and
(c)       in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)-
(a)       the probability that the harm would occur if care were not taken,
(b)       the likely seriousness of the harm,
(c)       the burden of taking precautions to avoid the risk of harm,
(d)       the social utility of the activity that creates the risk of harm
Other principles
In proceedings relating to liability for negligence-
(a)the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk’
12.   I note that at the intersection there are no arrows present and there are only standard traffic lights governing the intersection which allows for the possibility for you and the Insured to both have a green traffic light at the same time.
13. However, whilst you would have right of way in accordance with Section 75 of the Road Rules, you also have a duty to keep a proper lookout and in accordance with the Civil Liability Act Section 5B has the duty to take precautions to avoid the risk of harm.
14.   Furthermore, Sibley v. Kais [1967] HCA 43 held ‘The obligation is on every driver no matter from what quarter he enters or is about to enter an intersection, to condition his speed and the handling of his vehicle so as to be able to avoid collision with any other vehicle or vehicles entering.’(italics in original form)
15.   I am not satisfied that you took adequate precautions to avoid the risk of harm and that you kept a proper lookout as you stated in your record of interview with the Investigator you stated, ‘I didn't see the car as I hadn't expected any cars to be turning at the same time as me when mine was um, on a green arrow traffic light' (Italics in original form)
16.   Further, you note in your Application for Internal Review that the Investigator did not properly follow up the witness, however the witness was contacted, and a time arranged for an interview however they did not make themselves available at the agreed upon time and has not responded to further attempts at contact.
17.   Therefore, I accept that you were 50% contributorily negligent in the subject motor vehicle accident.”

Issues in dispute at assessment
Where did the collision occur?

The parties were in dispute as to the exact location of the collision. Was it in the intersection itself or somewhere near it? Or some metres further along Anzac Parade?

The claimant’s version in summary:

The claimant contended that she was in lane 2 on Anzac Parade approximately 20 to 50 metres from the intersection within her lane when the insured’s driver collided with her vehicle.

The insurer’s version in summary:

The claimant had turned left from Boyce Road onto Anzac Parade and was in the process of entering lane three of four lanes of Anzac Parade when a collision occurred with the insured driver.
The front right hand corner panel of the claimant’s vehicle collided with the passenger side of the insured vehicle just above the passenger side wheel arch. The claimant’s car ran into the insured’s car when she moved to avoid running into parked cars in lane one.

The claimant’s statements

In her Application for Personal Injury Benefits – the claimant provided a description of the incident as follows:
“I was driving on Boyce Road on the left lane. As I approached the intersection, once the traffic lights turned green with a left green arrow, I turned left onto Anzac Parade into the middle lane as I had right of way. Unexpectedly a car had turned at the same time from Boyce Road onto the lane onto Anzac Parade. The car had turned right onto my lane. I didn’t see the car as I hadn’t expected any cars to be turning at the same time as me when mine was on a green arrow traffic light.” (emphasis Added)
The transcript of interview between Lee Kelly & Associates investigators retained by the insurer and the claimant in report dated 23 January 2023 (R2) was as follows:
“Q61 ..Just in your own words and as much detail as you can, can you tell me what happened..
A Yeah. I’ve actually written down for the insurance company that. Um so I was driving on Boyce Road on the left lane so I came out of my home…
Q62: Yeah
A um went onto, turn onto Boyce Road um, and had…I sent you some images Paul as well and when I approached the intersection between Boyce Road and Anzac Parade…
Q63: yep
A…once the traffic lights turned with a green arrow, I turned onto Anzac Parade into the middle lane…as I had the right of way. Unexpectedly, a car turned at the same time from Boyce Road onto the opposite side onto the lane of Anzac Parade.
Q64: …um, so perpendicular, she was turning and the car turned um, onto the same lane.I didn’t see the car as I hadn’t expected any cars to be turning at the same time as me when mine was on a green arrow traffic light. Um, I actually didn’t expect a car so I don’t really know where we crashed or what happened um, and then once I came down from the car, I was in shock.i have a, a witness, Barry. Um he was a lovely older man. He um, so instantly stopped the car on the side and he made sure I was okay. He was a [edestrian walking by. Checked I was okay and told me he had ..saw, um, other party’s car turn right from Boyce Road onto Anzac Parade and not give me the right of way I was supposed to have.”
When questioned as to which lane she was in when she turned onto Anzac Parade, her response to:
“Q68 ..were you in?
A Um, I was in lane two
Q69..Lane two
A…I think
Q70 Yep.
A Yeah. Turning onto lane two or like three. I can’t exactly remember but from my photo..
Q71 Yeah
A .. That I gave the insurance company, I seem to have ??? (mumbling) lane two.
Q72 And so how did the actual accident happen? What occurred there?
A Ah, so I was turning into that lane…
Q73 Yeah,
A .. um, and what Barry said because I didn’t really see the exact accident..
….
….
Q78: Yeah
A So, um I was just turning left onto um, kind of the middle lane…
Q79 Yep
A kind of between lane and two and three and um then, just heard or felt um, another car,,
Q80 yep.
A.. crash onto me on the driver seat.
Q81 Yeah So where was the impact on your car?
A ..On the right front side so
Q82 Yeah.
A..um, the driver side basically. On the right hand side.
Q83. Yeah and what damage was sustained to your vehicle?
A Um so it was ah, just damage on the right side, on the right side near the driver seat.
Q84 Yeah
A um, and the front a bit
Q85 And how fast do you estimate you were travelling at the time of the accident?
A Oh, very slow, so from zero turning a corner so I don’t actually know, probably like ten like less than twenty…
Q86: yeah
A … twenty, thirty I..yeah
Q185: yeah
A I was just making a small turn so that’s why I kind of didn’t really notice that she was coming.”

Statement of Barry Livingston

Mr Livingston provided a statement in support of the claimant’s version of event. His statement dated 29 May 2023 reads as follows:
“On the 27 September 2022 I was stopped in Boyce Road waiting to turn right into Anzac Parade. The car in front of me turned right into the outside lane with oncoming traffic turning left. I thought this dangerous. A car that I now know was driven by Miss Lucy Cheng turned left from Boyce Rd into Anzac Parade and stopped in the left lane. The car in front of me turned left into the outside lane and then swerved left into Miss Cheng’s car that had remained in the left hand lane. The car in front of me was in the wrong. I parked my car and spoke to Miss Cheng whose car was stopped still in the left lane. She was very shaken by what had happened, I gave her my details as I was sure she was in the right”

Statement of insured’s driver

The insured’s driver provided her version of events:
a.       On 27 September 2022 I was the driver of a Toyota Corolla registered YZL-70-F which was involved in a collision with a vehicle driven by Lucy Cheng on Anzac Parade Maroubra.
b.       Prior to the accident, I had travelled along Boyce Road, Maroubra. At the intersection of Boyce Road and Anzac Parade, I brought my vehicle to a halt as I was confronted with a red traffic light. After the lights turned green, I checked the intersection to ensure it was safe to proceed and performed a right hand turn into Anzac Parade.
c.       Anzac Parade has four lanes. Lane 1 and lane 4 permit parking and accordingly, I entered lane 3 of 4 with the intention of travelling straight ahead to travel to Coogee Beach.
d.       After the impact, I moved my vehicle out of lane 3 and parked behind the first of the parked vehicles in lane 4 of Anzac Parade. I estimate I travelled approximately two car lengths from the point of impact to the point where I parked my vehicle.
e.       Up until immediately prior to the impact, I had not observed the presence of the claimant's vehicle. My impression from the damage profile is that she made a sharp turn from lane 1 or lane 2, into lane 3 and that her vehicle was on an acute angle as it was the front right hand corner of her vehicle which collided with the passenger side of my vehicle.
f.        Following the collision, the claimant drove her vehicle over to lane 1 and parked in front of the stationary vehicle depicted in the diagram I prepared for the property damage claim which is annexed hereto and marked with the letter "A".
g.       After turning right onto Anzac Parade, I remained in lane 3 and was travelling at approximately 40 to 50 km/h when the vehicle driven by Lucy Chang impacted the front left hand side panel of my vehicle.
h.       The impact occurred approximately twenty five metres along Anzac Parade and not within the intersection.

The transcript of Interview between Lee Kelly Investigators on 13 January 2023 and Victoria Richards (‘the insured’) provided the following responses to questions asked of her: (italics in original form)
“…
Q42: yeah. Alright. Just in your own words and in as much detail as you can, can you tell me what happened?
A Yes.So, um I had turned right from Boyce Road onto Anzac Parade.
Q43 Yeah
A.. and I turned into the third from the left lane and about twenty five metres down that road…
Q44 yeah
A.    Ah..approximately like in the middle of…between the two traffic lights, all of a sudden
in my peripheral vision I saw a car from my left hand side, very drastically swerved
towards me and they hit the front right corner of their car into...
Q45: Yeah
A    ..the left front ..ah, sorry, the left front tyre of my car.
Q52 So Anzac parade there, so its three lanes each way, is that right?
A It was actually four lanes.
Q57 Yeah. Okay. And so let’s say your in lane three or four?
A Yes
Q58. Yeah. And the other vehicle in lane two. So did it look to merge into your lane or what’s happened?
A Um, it ... I never saw ... I didn’t see the car pre ... prior to it merging into my lane. I never saw a blinker, I never saw ... it kind of, what I believe happened is that they were in the first lane ah, which was coming up to a parked car and they very, very quickly changed from that first lane and smacked??? all the way over into the third lane which was my car um, because I feel like maybe they were going to run up the back of that other car because it just happened so uickly like they moved so quickly trying to get into my third lane.
Q 59, yeah
A Um I don’t really understand Urn, I don’t really understand why the accident occurred. I was just heading straight. I had no indicator on to merge. I did not merge whatsoever. I was staying in that third lane and all of a sudden that car just really quickly moved across the two lanes and smacked into the side of my car.
Q60        So how fast were you travelling do you estimate
A Um I estimated probably fifty kilometres an hour
…
Q 79, yeah. No dramas. Alright. This is just your opinion. Whose fault do you believe the accident to be and why?
A. It was the other driver’s fault as they’re the one that moved into the lane that was already occupied by my car and they didn’t give right of way urn, because I was already travelling straight. I had not moved out of my lane. I’d not indicated to move and they had recklessly driven into the side of my car.
Q102           what was the other..when you said that she was trying to blame you whas was she saying specifically? Like did she say oh, you did this or..
A . Yeah. She said, she said um, you’ve hit my car and I said no, you’ve clearly merged into my car and you’ve smacked the side of my car with the front of your car.
Q103 yeah.
A And she said no, you’ve come into my lane, you’ve been in my lane um, but that was just complete falsity.”

Statement of Jim Jakubowski – insured’s passenger

This statement of the passenger traveling in the car with the insured was as follows:
a.       On the day of the accident. I was the front seat passenger of a vehicle driven by my then girlfriend, Victoria Dee Richards.
b.       Prior to the accident occurring, I recall we were stopped at the intersection of Boyce Road and Anzac Parade. Our vehicle was the first vehicle in the line of traffic. When the lights turned green, we proceeded into the intersection and turned right into lane 3 of 4 of Anzac Parade.
c.       At the time our vehicle entered the intersection, I saw another vehicle turn left from Boyce Road into Anzac Parade. at a similar time. That vehicle turned into lane 1 and as our respective vehicles proceeded along Anzac Parade, it appeared to accelerate and then cut across two lanes. heading straight towards our vehicle on a strong angle. The other vehicle's front right hand driver's corner impacted our vehicle just behind the front passenger wheel arch.
d.       At the time of impact, our vehicle remained wholly within lane 3. After we turned onto Anzac Parade, we travelled approximately 15 metres before impact. I estimate the speed of our vehicle to be 30 km/h and at the time of impact.
e.       I can only describe the collision as weird, as I was watching the other car come towards our vehicle. I initially thought the car would remain within its lane but instead it kept merging straight into our lane on a strong angle. It appeared like the car sped up and was trying to push into a merge lane.
f.        The impact was forceful and I heard a loud bang which jolted the car. I felt shocked by the accident but did not suffer any physical injuries.
g.     After the collision, Victoria pulled our vehicle over into lane 4 where there was a free park on the right hand side. My recollection is that it was the first park in the legitimate parking area along Anzac Parade.
h.     After we parked, I looked across to see where the other vehicle was. The driver was already out of the vehicle and appeared to be chasing people down looking for anyone who witnessed the accident. I did not speak to any witnesses at the scene and did not see anyone else at the scene.

Submissions in summary

The claimant’s final submissions dated 31 October 2023

The independent witness Barry Livingston’s evidence should be preferred to that of Jim Jakubowski. His opinion that the manner in which the insured entered the intersection “was dangerous”
The point of collision was estimated to be approximately 5 metres from the intersection.
The photographs taken by the claimant were marked with red and blue highlights as to the direction each vehicle took using Google maps.
From the claimant’s perspective in one of the photographs the direction she took was a left turn directly into lane 3 of 4 on Anzac parade. The diagram has a red line for each driver. The point of impact was on lane 3.
When disputing the insured’s version of the location, the claimant stated “Her testimony suggest that the collision did not result from both of us turning onto Anzac Parade from the opposite sides of Boyce Road, but rather I abruptly merged across two lanes into her path while she was travelling straight. This version of events is in stark contrast to the actual sequence of events, where the collisions occurred as a result of both of us turning onto Anzac Parade…I had right of way and the insured was supposed to yield as we both turn onto Anzac Parade”

Insurer’s final submissions in response to the claimants dated 31 October 2023

The claimant’s submissions of 31 October 2023 assert she had right of way and the subject collision occurred at or near the intersection. In these circumstances, it is the claimant’s submission that there was no contributory negligence on her part.
In response, and without any concession as to where the impact occurred relative to the intersection, the insurer relies on the common law authority of Sibley v Kais (1967) HCA 43 118 CLR 424 and submits that the ‘right hand rule’, is not wholly determinative.
In this regard, the impact damage to the respective vehicles establishes that the front driver’s side corner panel of the claimant’s vehicle collided into the area of the A pillar/passenger door of the insured vehicle, establishing the insured vehicle preceded the claimant’s vehicle on the roadway. Accordingly, had the claimant approached the intersection in the manner set out in Sibley v Kais, and maintained a proper look out and took reasonable care, the subject collision could have been avoided.
The insurer maintains its reliance on the statements of the insured driver, Victoria Richards (R7) and her front seat passenger, Jim Jakubowski (R8).
These statements establish the collision occurred at least 15 metres from the intersection after the insured had turned into, and remained in lane three. In these circumstances, it is submitted the only available finding is that the claimant merged into the lane wholly occupied by the insured and collided with the front left side of the insured vehicle.
The insurer also notes the inconsistencies in the claimant’s evidence and account of the accident.
Mr Livingston states that he was “stopped in Boyce Rd waiting to turn right into Anzac Parade’ (R5). (italics in original form)
The claimant in her Application for Personal injury Claim Form (R3) states the insured’s car “turned right onto my lane”, that she had “a green arrow traffic light” and Mr Livingston was “a pedestrian walking by”. (italics in original form)
The insurer reiterates that there is no green arrow traffic light at the intersection to turn left onto Anzac Parade as asserted by the claimant (R6). In her statement dated 16 January 2023 (R4), the claimant maintains the assertion that at the intersection she turned left “once the traffic lights turned with a left green arrow”. (italics in original form)
The claimant reports “a car had turned at the same time from Boyce Rd’ stating the insured “turned right onto my lane” (R3). Comparatively, Mr Livingston states that the insured’s car “turned left into the outside lane and then merged left”(R5).(italics in original form)
The claimant states that she “didn’t see the car as I hadn’t expected any cars to be turning at the same time as me when mine was…on a green arrow traffic light”.
Further, when questioned about how the collision occurred, the claimant stated she was turning left onto “kind of the middle lane…between lane…two and three” (R4). (italics in original form)
In her statement of 16 January 2023 (R4), the claimant also stated with respect to the insured driver that “she can make a right turn, but she probably just needs to ensure that none of the left…there’s no cars turning left before she can turn right”. This is consistent with the insured driver’s account of the subject accident and is inconsistent with the claimant’s previous assertion that she had a green arrow signal. (italics in original form)
The insurer submitted that where the claimant was not keeping a proper look out, operating under an incorrect assumption that she had a green arrow, and turned left before merging across lanes one and two, into lane three which was occupied by the insured vehicle, she was contributorily negligent and that an allegation of 50% contributory negligence ought to be maintained.

Traffic signals operating at the intersection of Boyce Road and Anzac Parade

Whilst the claimant insisted that she had turned the corner with the traffic lights providing her a “green arrow” and for that reason she did not expect any oncoming traffic.
A review of the traffic light sequencing provided by the insurer confirms the intersection that is situated at Boyce road and Anzac parade doe not include a green arrow for vehicles turning left onto Anzac parade.
I am satisfied that there was no green arrow at the relevant intersection relying on report dated 27 September 2022 (document R6).

Findings

On the claimant’s version of events, the incident occurred as she was in the process of turning left from Boyce Road into Anzac Parade. The claimant admitted that she did not see the insured and was not expecting traffic as she was turning.
The insured driver’s version is slightly different, with her evidence being that the point of impact was some 25 metres down Anzac Parade and not within the intersection itself. This account is largely consistent with the diagrams prepared by both the claimant and the insured.
The insurer submitted the factual finding as to where the point of impact occurred is critical to the determination of the claimant’s contributory negligence. I agree that the location of impact is relevant to the claimant and the insured’s position on the roadway at the time of impact
The claimant’s concession in her final submissions support the finding that the claimant entered Anzac Parade coming from Boyce road where she drove across lanes1 and 2 and was making her way into lane 3 at point of impact. The proximity to the intersection was 5 metres from the intersection.
The direction the claimant took to cross over three lanes immediately is not in accordance with the road rules. She should have turned at first instance at best into lane 2 and then indicated an intention to move into lane three.
She was not keeping a proper lookout in the direction she was travelling irrespective of whether she thought the lighting sequence gave her right of way.
The claimant’s evidence is that she was coming out of her home and I am somewhat surprised that the claimant living in the vicinity of the intersection was unaware that the intersection had no green arrow.
I find that the claimant and the insured both failed to keep a proper lookout when entering the intersection and that both parties were responsible for the collision.
In circumstances where the incident did not occur in the actual intersection itself but on Anzac Parade a four laned road, each driver should have entered the section of Anzac parade into their own lane that being either lanes 1 and 2 for the claimant and lanes 3 and 4 for the insured.
I am very familiar with the intersection and noting that there are parked cars further down Anzac Parade, it is reasonable that drivers entering from Boyce road would turn into lanes 2 for those turning left and 3 for those coming from the holding bay on Anzac Parade, turning right.
I am satisfied that the collision occurred at a point on Anzac Parade some metres into Anzac Parade, I agree that when turning onto Anzac Parade the claimant by her own admission drove directly into lane 3 and she failed to give way to the insured vehicle which occupied lane three of Anzac Parade at the point of collision.
The insured lodged a property damage claim with her insurer, Bingle, in which she provided a description and depiction of the circumstances of the accident. In that diagram, she depicts the incident occurring at a point where the insured vehicle was parallel to a parked vehicle registered CVF-75H. As evidenced from analysis of the Google map depiction of the intersection provided with this matter, this is consistent with the insured’s statement that the incident occurred several metres from the intersection.
Whilst negligence was conceded by the insurer, the conduct of the claimant by way of the location of damage to both vehicles satisfies me that the collision dynamics, with the front right hand corner of the claimant’s vehicle colliding with the passenger side of the insured vehicle above the wheel mount on the vehicles left hand side that the claimant has collided with the insured’s vehicle when moving from her lane into the lane occupied by the insured.
I am satisfied that the impact occurred on Anzac Parade some 20 plus metres along the road in circumstances where the insured vehicle was already occupying lane three when the claimant turned left and proceeded across lanes one and two until she impacted with the insured vehicle.
The claimant’s recollection of events were hazy. She did not recollect her witness as a driver, but a pedestrian.
She was incorrect with the intersections having a green arrow.
She did not see the other vehicle and so she failed to keep a proper lookout when merging lanes.
The statement of Mr Livingston, was rather confused that he considered the insured’s vehicle has turned left, into Anzac Parade from Boyce Road, where the manoeuvre was a right hand turn.
On the facts before me I am satisfied that both the claimant and the insured were equally responsible for the collision. Both drivers failed to keep a proper lookout.
Noting also the location of impact on the insured’s vehicle, the point of impact shows it was the claimant’s vehicle to have collided into the insured’s. Had it have been the other way, as described by the claimant, then the insured’s impact on her vehicle would have been the front and left passenger side in front of the wheel arch and there was no impact to the front of the insured’s vehicle front on.
Whilst the claimant relied on the property insurer’s paying out of the claim she made, their investigations rely on statements from their insured and they make no findings on contributory negligence in their liability decisions as it relates to the apportionment of culpability.
I agree with the insurer submission that the insured’s motion must have proceeded the claimant’s motion into the intersection due to the location of damage on the insured’s vehicle being on the wheel arch and therefore, the claimant could have easily avoided impact if she was paying proper attention to the roadway ahead of her and beside her at the time she commenced her turn and continued when she was travelling along Anzac Parade.
In those circumstances, the agree with the insurer’s submission on contributory negligence. I find the percentage of the injured person’s contributory negligence is 50%. She failed to keep a proper lookout and merged without looking colliding with the insured’s vehicle.
I find the claimant 50% contributory negligence.

CONCLUSION

For the purposes of s 3.38 the assessment of contributory negligence on the part of the injured person is 50%.
Effective Date: this determination takes effect on 27 November 2023.
Legal Costs: the amount of the claimant’s costs and disbursement assessed in accordance with the Motor Accident Injuries Regulation 2017, is $nil inclusive of GST. The claimant was self-represented.

Legislation

3.38 Reduction of weekly statutory benefits after 6 months for contributory negligence

(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.
(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.

(3) The weekly payments of statutory benefits payable in respect of a motor accident are to reduced on account of contributory negligence:
(a)if subsection (4) requires the statutory benefits be reduced by a fixed — by that fixed percentage, or
(b) by such percentage as the parties agree, or
(c) in any other case—by such percentage as the Dispute Resolution Service determines (for the reasons stated) is just and equitable in the circumstances of the case.

If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Dispute Resolution Service.
(4) The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.

In making my decision and conducting my review I have considered the following legislation and guidelines:
· MAI Act;
· Motor Accident Injuries Regulation 2017, and
· Motor Accident Guidelines 2017.

[2023] NSWPIC 642

28 November 2023