Chit v Allianz Australia Insurance Limited
[2022] NSWPIC 139
•4 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Chit v Allianz Australia Insurance Limited [2022] NSWPIC 139 |
| CLAIMANT: | Kaung Chit |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 4 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); schedule 2, clause (3)(g) of the MAI Act; section 5R of the Civil Liability Act 2002; regulation 148 of Road Rules 2014; insured bus struck claimant cyclist in bus lane in CBD area; CCTV footages; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; accident caused solely by insured bus driver in overtaking cyclist when there was no room or space to do so; Held– no contributory negligence on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | 1. For the purposes of s 3.38, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident. 2. Effective Date: This decision takes effect from 8 September 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,881 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor AccidentInjuries Act 2017
INTRODUCTION
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause (3)(g) of the Motor Accident Injuries Act 2017 (the MAI Act). Is the insurer entitled to reduce the statutory benefits payable to the claimant in accordance with s 3.38 of the MAI Act for contributory negligence?
BACKGROUND
Kaung Chit (the claimant) is a 22-year-old man who suffered significant injuries in a motor accident on 7 March 2021 when he was struck by the insured bus while riding his bicycle along Elizabeth Street, past the intersection with Goulburn Street, towards Martin Place Sydney.
Following the accident, the claimant was taken by ambulance to St Vincent’s Hospital, Darlinghurst, where he remained for about 25 days. The claimant’s injuries included bilateral sacral fractures.
On 15 March 2021, the claimant made an application to the insurer for payment of personal injury benefits.
On 13 April 2021, the insurer accepted liability for payment of statutory benefits for the first 26 weeks. Those payments included weekly benefits and treatment and care.
On 22 June 2021, the insurer notified the claimant that it declined liability to make further payments beyond 26 weeks on the basis that the claimant was wholly at fault for the accident.
On the same day, the claimant sought an internal review of the insurer’s decision. On 13 July 2021, the insurer issued a revised decision accepting liability to continue payment of statutory benefits beyond 26 weeks on the basis that those benefits are reduced by 25% for contributory negligence on the part of the claimant in the accident.
The claimant disputed the insurer’s decision. On 29 July 2021, he made an application to the Personal Injury Commission (the Commission) to resolve the dispute.
The application is now before to me for determination.
DETERMINATION ON THE PAPERS
At a teleconference conducted on 8 December 2021, the parties agreed that, considering the issues that remain in dispute and that neither the claimant’s nor the insured driver’s credit was being challenged, I could proceed to decide the matter based on the documents before me.
In making my decision, I have considered the documents lodged by the claimant in his application dated 29 July 2021 and the documents lodged by the insurer in its reply dated 20 August 2021, additional documents lodged by the parties and accepted by the Commission and documents produced by the NSW Police Force to the Commission. These include:
(a) the “Motor Vehicle Claim form” from Transit Systems dated 10 March 2021;
(b) the Application for Personal Injury Benefits dated 15 March 2021;
(c) the NSW Police Report dated 17 March 2021;
(d) the Liability Notice for Benefits up to 26 weeks dated 13 April 2021;
(e) the Liability Notice for Benefits after 26 weeks dated 22 June 2021;
(f) the claimant’s application for internal review dated 22 June 2021;
(g) the insurer’s internal review decision dated 13 July 2021;
(h) the claimant’s submissions dated 26 July 2021;
(i) the factual investigation report of MJM Corporate Risk Services dated 30 July 2021;
(j) the insurer’s submissions dated 20 August 2021 and 3 February 2022;
(k) the claimant’s statement dated 14 January 2022 and
(l) the documents produced by the NSW Police Force which included the police notebooks statements of the claimant, insured driver and the driver of the parked vehicle, the Body Worn Video of Constable Kitchin’s interview with the insured driver, the “apology letter” from the insured driver to the claimant, Court Attendance Notice issued to the insured driver, the Facts Sheet relating to a charge on negligent driving occasioning grievous bodily harm, and various CCTV footages.
I am satisfied that there is sufficient information before me to determine the matter on the papers.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· the Motor Accident Guidelines, Version 8 (the Guidelines);
· Civil Liability Act 2002, and
· Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts are uncontroversial:
(a) The claimant and insured driver were travelling in a northerly direction. The motor accident occurred at about 5.15pm on Sunday 7 March 2021, on Elizabeth Street past the intersection with Goulburn Street, Sydney, near the Downing Centre.
(b) On the day and time of the accident, vehicles were permitted to use lane 1 as a parking lane.
(c) Lane 2 is a bus lane.
(d) Lane 3 is a general traffic lane.
(e) The weather was fine.
(f) It was daylight.
(g) The road surface was sealed and dry.
The claimant’s evidence
The claimant has described the circumstances of the motor accident on several occasions.
The claimant was interviewed by Constable Kitchin of the NSW Police Force at St Vincent’s Hospital on 11 March 2021. Constable Kitchin recorded the following statement from the claimant in her notebook:
“About 5.00pm on Sunday the 7th March 2021, I was riding my rented bike north on Elizabeth Street, Sydney. At the traffic lights at the intersection of Goulburn Street, I stopped at a red light. I was riding/stopped on the line between lane 1 and lane 2. The bus was stopped beside me. The light turned green and I continued north on Elizabeth Street. I took off fast, travelling in lane 1 and lane 2. I was trying to give the bus space to go past me. It all happened so fast. The bus hit me I think from my back wheel. I remember being in the air. Then I got hit a second time and I finally landed on the ground.”
In his application for statutory benefits dated 15 March 2021, the claimant described the accident in the following terms:
“I was riding an electric bike and there was nothing in front of me. All of a sudden, I got hit from behind by a bus from behind twice.”
The claimant was interviewed by Andrew Cornell of MJM Corporate Risk Services on 13 May 2021, at the request of the insurer.
In the interview, the claimant said that he was riding an electric bike which was registered. He said that the top speed for his bike was 25 kilometres. He described the accident in the following terms:
“…So I was just riding on the bus lane and there’s no car or no – nothing in front of me that I can see and suddenly – suddenly I had – no, no, no suddenly the bus hit me from behind and I didn’t even saw [sic] the bus coming because it was from the back and I didn’t hear anything either. So it’s happen [sic] like so sudden for me.”
The claimant said that the back wheel of his bike was destroyed altogether along with the battery which is also at the back of his bike. He did not see which part of the bus that hit him but he believed it was the front left side of the bus where the first wheel is.
In a signed statement dated 14 January 2022, the claimant stated the following:
“…
15. The bus pulled up directly behind me at the intersection between Elizabeth Street and Goulburn Street. At this point, the bus had been maintaining a safe distance and I believe the bus was aware of my presence and was driving safely to avoid coming into close or direct contact with myself or my bike.
16. After the light at this intersection turned green, I continued to pay close attention to my surroundings and kept a lookout for any potential hazards. As I approached the intersection with Liverpool Street, I continued to travel in the parking bay.
17. I then recall that the passenger door of a vehicle directly in my line of sight had opened. It was unclear to me whether the passenger was entering or exiting the vehicle, as it was still some distance away.
18. I made a judgment that re-entering the bus lane was the safest solution to avoid making any contact with the passenger or the passenger door…
…
20 It was only after I had just entered the bus lane that I could hear from the engine of the bus that it had picked up its speed significantly… it appears to me that the bus driver was attempting to overtake me…”
The insured driver’s evidence
The insured driver has also described the circumstances of the motor accident on several occasions.
The insured driver was interviewed by Constable Kitchin of the NSW Police Force at the scene of the accident. Constable Kitchin recorded the following statement from the insured driver in her notebook:
“…I was driving bus route 438 along Elizabeth Street, Sydney. After the intersection of Goulburn Street I was driving in the bus lane which is lane 2, travelling Northbound. At the intersection of Goulburn Street I was stopped behind a bike rider/bicycle rider. The rider was male. He was stopped in front of me. The lights turned green, the bike rider moved over to lane 1, the far left lane. I saw the driver of a white Mazda go to open the driver’s side door. The driver opened it enough to look out with their head and then close it again. About two seconds later, I heard a bang. I looked in the review [sic] mirror and seen the bloke on the floor. It was the guy riding the bike [sic]was on the road. I pulled the bus over to lane 1 and stopped before the intersection of Liverpool Street. I ran back to the guy on the bike. I moved the bike to the side and [sic] was blocking traffic….. When I heard the bang, it was at the back passenger side of the bus.”
On 10 March 2021, the insured driver completed a ‘Motor Accident Vehicle Claim Form’ reporting the accident to his employer, Transit Systems. In the document, he described the circumstances of the accident in the following terms:
“I arrived at Goulburn Street lights on Elizabeth Street, travelling to Martin Place. Stopped at lights behind cyclist. Cyclist proceeded into lane 1 from bus lane. I went past him in bus lane (lane 2) and notices [sic] a female drive [sic] in a white car parked in lane 1 open and closed her door. I then herd [sic] a collision on near side rear of bus, and I saw (in my left mirror) the cyclist on the ground. I park [sic] the bus and to the cyclist to see if he was okay. Ambulance and Police were at the seen [sic]”.
The insured driver was again interviewed by Constable Kitchin on 6 June 2021. The interview was recorded on the Constable’s Body Worn Video.
In reply to Constable Kitchin’s question whether he would like to be interviewed in relation to the matter, the insured driver said:
“No I have looked at the footage and I have realised that I didn’t give him enough room and I apologise.”
In a letter addressed to the claimant dated 3 October 2021, which was produced by the NSW Police Force, the insured driver wrote the following:
“…It was not until I saw the police footage that I realised you were struck by the bus in the way that you were, that was entirely my fault. I accept full responsibility for what I have done to you. Please know that my actions were not intentional…The size of my vehicle meant that I lost appreciation and perspective for where you were on the roadway. The large vehicles require greater attention that I paid to your small space on the road when I struck you...”
The witness’ evidence (driver of parked white Mazda)
The driver of the parked white Mazda, Tracey Pfeiffer was interviewed by Constable Kitchin on 30 March 2021. Constable Kitchin recorded Ms Pfeiffer’s statement in her notebook as follows:
“I parked my car in Elizabeth Street, facing north beside the Downing Centre.
I went to exit the car. I looked in the rear-view mirror to see if it was clear. I then closed the side mirrors and picked up my car keys from the centre console.
I opened my driver’s side door into traffic just enough for my eyes to see out. The door was open about 20 centimetres, just enough for me to poke my head out. I looked towards oncoming traffic which was coming from behind me. I saw a bike rider. I cannot remember which lane he was in. I saw that he was about four to five car lengths away from me. It was about 12 to 15 metres away. As soon as I saw the bike rider I quickly closed my door.
I saw at that time there would have been time for me to get out of the car before the bike rider had passed me but I was not in a rush. I sat in my car and waited for the bike to pass. I then heard a muffled bang which sounded like it came from my right side. I swung my head around to look towards where the noise came from. I saw the cyclist on the road at the back right hand side of my car. I saw the bus drive past my car. I’m not sure which lane he drove past in.”
The CCTV footages
The NSW Police Force produced a series of CCTV footages obtained from the Sheriff’s Office of the Downing Centre Court complex. These footages captured the street view and the scene of the accident after collision had occurred. However, there were no images of the collision itself.
The NSW Police Force produced two CCTV footages of images captured by the insured bus for about one minute before and leading up to the time of the collision. I have referred to these footages as CCTV footage 1 and 2 in these reasons.
THE INSURER’S REVIEW DECISION
In its review decision, the insurer accepted that the insured driver was negligent in that he breached his duty of care to the claimant. The particulars of negligence were particularised as follows:
(a) The insured driver failed to manoeuvre the bus as to keep a safe distance between the bus and the claimant’s bicycle.
(b) Having travelled behind the claimant’s bicycle for approximately one minute prior to the accident, the insured driver ought to have been aware of the presence of the claimant’s bicycle prior to the accident.
(c) The insurer accepts that prior to the accident, the claimant was attempting to pass a black parked car and, in these circumstances, accepts that it was or ought to have been reasonably foreseeable to the insured driver, driving behind, that the claimant’s bicycle may have re-entered the bus lane to pass a parked vehicle.
(d) The insurer accepts that the insured driver has failed to keep a proper lookout for the claimant’s bicycle immediately before the point of impact.
(e) The insurer accepts that the insured driver has failed to turn his attention to all possible risks and instead has noticed only the door of the parked white Mazda opening but not the claimant’s manoeuvre.
(f) The insurer accepts that the insured driver was required to keep a safe distance when passing the claimant’s bicycle in accordance with Rule 144-1 of the Road Rules. By colliding with the claimant’s bicycle after following it for some time, the insurer finds that the insured driver has failed to allow sufficient room between the claimant’s bicycle and the insured bus to safely pass the bicycle which resulted in the occurrence of the accident.
However, the insurer found that the claimant contributed to the accident for the following reasons:
· The claimant failed to make his intention to change lanes to the bus lane known to the insured driver.
· The claimant failed to comply with Rule 48 of the Road Rules in that he did not give sufficient warning before changing lanes to the right by signalling for approximately 30 metres.
On that basis, the insurer reduced payments of the claimant’s statutory benefits by 25% after six months from the date of the accident, for contributory negligence.
THE CLAIMANT’S SUBMISSIONS
The claimant submits that there should not be a finding of contributory negligence for the following reasons:
(a) the claimant took all necessary precautions in the lead up to the accident, paying attention to all actual and observable dangers on the side of the road and ahead;
(b) the CCTV footage clearly displays the claimant cycling ahead of the insured driver’s vehicle. At all times, the claimant was visible to the insured driver;
(c) the claimant only crosses into the bus lane intermittently and remains close to the special purpose lane to avoid potential interference with other vehicles;
(d) pursuant to the Road Rules, bicycle riders are permitted to ride in bus lanes. Bicycle riders are also permitted to ride in special purpose lanes. The CCTV footage does not depict the claimant riding his bicycle in a lane or area that he is not permitted to do so;
(e) the insured driver failed to keep a proper lookout and failed to maintain a safe distance between their vehicle and the claimant’s bicycle;
(f) as the insured vehicle was driving behind the claimant, it would be onerous to find that the claimant failed to maintain proper distance;
(g) the insured vehicle was not visible to the claimant at any point in the events leading to the accident;
(h) the driver of the insured vehicle failed to keep a proper distance from the claimant. Given the speed at which the bus accelerated, it appears that the bus driver was attempting to overtake the claimant;
(i) the claimant maintains that re-entering the bus lane was the safest solution to avoid making contact with the door of the parked car or its passenger, and
(j) the way in which the bus approached and proceeded to collide with the claimant was an event that no amount of caution or safety could have avoided.
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) The insurer submits that the CCTV footage 1 establishes that the claimant was proceeding in lane 1 until he was prompted to take evasive action due to the driver’s door of the parked white Mazda opening. This evasive action was a contributing cause of the collision and not any act or omission of the insured driver.
(b) The CCTV footage 2 establishes that the impact with the claimant/bike was not an impact with the front of the insured bus but rather, as the insured had passed the claimant, he has glanced into the side of the insured bus, thereafter losing control.
(c) If the impact was caused due to the front the insured bus hitting the claimant he would have been thrown forward and would not have landed to the side of the insured bus as seen in the CCTV footage 2. Accordingly, it is submitted that the insured bus had safely passed the claimant and it was the claimant’s actions, attempting to deviate into lane 2 without looking and without ensuring it was safe to do so, that was the sole cause of the collision.
(d) The speed at which the claimant was travelling was excessive and contributory to the accident. Had he been travelling at a slower speed, he could have safely avoided the hazard created by the driver’s door of the Mazda opening.
(e) The insurer submits that the claimant was in breach of Regulation 148 of the Australian Road Rules through failing to give way to the insured bus before merging into lane 2. The failure of the claimant to comply with the requirements of Road Rule 148(1) was a contributing cause of the accident.
(f) The insurer submits the CCTV footage provides substantive evidence that the driver drove prudently in the circumstances, and at no stage does the insured make any sudden or unpredictable manoeuvres.
(g) The insurer submits that the CCTV footage provides no evidence of the claimant performing a check over his shoulders, or indeed of any potential hazards when entering the bus lane.
(h) Further, the above statements are directly contradictory to each other, in that the claimant asserts that re-entering the bus lane was the most appropriate response to avoid contact with the passenger door, however he also had time to slow down, observe his surroundings, check over his shoulders and then, when it was safe to do so, enter the bus lane “slowly and gradually”.
(i) In any event, the CCTV footage and accompanying chronology of CCTV footage clearly evidences that there was nothing slow or gradual about the claimant entering the bus lane, and again, demonstrates that the claimant did not make any observations of his surroundings or look over his shoulders, as is so asserted.
(j) Accordingly, it is submitted that the insured vehicle had safely passed the claimant and it was the claimant’s actions, attempting to deviate into lane 2 without looking and without ensuring it was safe to do so, that led to the collision.
(k) The insurer submits that all material times, the claimant was aware that the insured bus was in close proximity to him and it is submitted that a reasonable person ought to have been aware of the risks of entering a bus lane, with a bus approaching in close proximity.
(l) In respect to the claimant’s reference to insured driver’s apology letter, the insurer says that this letter ought to be read in the context of the criminal proceedings brought against the insured driver, and notes that contrition and/or ameliorative conduct or voluntary rectification are subjective matters taken into account under section 21A(2)(d) of the Crimes (Sentencing Procedure)Act 1999.
CONSIDERATION
The relevant legislation and legal principles
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 5 of the Civil Liability Act2002 defines negligence as failure to exercise reasonable care and skill.
Section 5R (1) of the Civil Liability Act2002 provides that the principles applicable for determining negligence 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.
Section 5R (2) goes on to provide that the standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time.
In the circumstances of a motor accident and the present case, section 3.38 of the MAI Act also applies.
Section 3.38(1) provides the common law and enacted law as to contributory negligence applies to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the accident.
Relevant to the present case, sub-section 3.38(3)(c) goes on to provide that such weekly payments are be reduced on account of contributory negligence by such percentage as the Commission determines, is just and equitable in the circumstances of the case.
Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
“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 both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of 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.”
Discussion
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
In the present case the insurer has assessed the conduct of the claimant in the accident to have contributed to the accident in the order of 25%.
After careful consideration of the evidence and for the reasons that follow, I have come to the conclusion that there was no negligence on the part of the claimant that contributed to his injuries.
In its review decision, the insurer concedes that the insured driver breached his duty of care to the claimant and that he was at fault in causing the accident. The insurer particularised the nature of the insured driver’s negligence to which I have referred earlier in these reasons.
Considering the evidence, I found that there was more to the insured driver’s conduct that caused the accident than those matters particularised by the insurer.
The claimant’s evidence was that he was travelling in lane 1 as well as lane 2. This evidence is supported by the images in the CCTV footage 1.
The claimant was aware that the insured bus was behind him well before the intersection with Goulburn Street when they were both travelling in lane 2. When the lights turned green, the claimant rode out as quickly as he could. The roadway had an incline. In doing so, he attempted to keep as close as possible to lane 1 so that other traffic could go past him. He then saw the door of the parked white Mazda opening and he made a judgment to re-enter lane 2, to avoid the hazard of hitting the car’s door or any alighting occupants. This evidence is supported by the images in the CCTV footage 1.
Ms Pfeiffer’s evidence was that she opened the driver’s door of her parked white Mazda for about 20 centimetres and poked her head out. She saw the claimant’s bicycle about 12 to 15 metres behind her. She quickly closed her door and waited. As she was waiting, she heard a muffled bang and looked behind and saw the claimant on the roadway. She then saw the bus pass her car.
Ms Pfeiffer’s evidence is consistent with the claimant’s evidence that he was some distance behind Ms Pfeiffer’s car when he re-entered lane 2 after he saw her car door opening. Ms Pfeiffer’s evidence also suggests that the bus would have been some distance behind the claimant. She only saw the claimant in her rear vision mirror some 12 to 15 meters away and not the bus.
Both the claimant’s evidence and Ms Pfeiffer’s evidence are consistent with the images captured in the CCTV footage1. Those images also confirmed the view the insured driver would have had just before the accident.
The insured driver’s evidence to Constable Kitchin at the scene of the accident was that he saw the driver of the white Mazda open the driver’s door and close it again. About two seconds later, he heard a bang. He then looked in his rear-view mirror and saw the claimant on the roadway. This evidence is inconsistent with the images captured in the CCTV footage 1 which showed the claimant travelling in front of the bus while the white Mazda’s door opened and closed, further ahead.
The insured driver’s evidence to his employer about three days after the accident was inconsistent with the evidence he gave to Constable Kitchin at the scene of the accident as well as the images captured by the CCTV footage1. On this occasion, his evidence was that the cyclist proceeded (after the intersection) into lane 1 from the bus lane (lane 2). He went past the cyclist in lane 2. He then noticed a female driver in a white car parked in lane 1 open and close her door. He then heard a collision near the rear side of the bus.
On a third occasion, when interviewed by Constable Kitchin in a recorded interview on 6 June 2021 and after having viewed the CCTV footages, the insured driver’ evidence was that after he had not given the claimant “enough room”. It is apparent that those words were said after viewing the CCTV footages, which showed the bus overtaking the claimant’s bicycle and the claimant falling onto the roadway.
If those words lacked clarity, the insured driver re-confirmed his evidence in a letter to the claimant on 3 October 2021 with the following statement:
“It was not until I saw the police footage that I realised you were struck by the bus in the way that you were, that was entirely my fault. I accept full responsibility for what I have done to you…The size of my vehicle meant that I lost appreciation and perspective for where you were on the roadway. The large vehicles require greater attention that I paid to your small space on the road when I struck you…”
Findings
Having considered the evidence, I find that the accident occurred because the insured driver made an unsafe and dangerous manoeuvre by overtaking the claimant’s bicycle in circumstances where there was no room or space to do so.
The insurer submits that the evasive action taken by the claimant prior to the accident of moving into lane 2, due to the driver’s door of the parked white Mazda opening, was a contributing cause of the collision.
I do not accept that submission. There is no evidence to suggest that the insured driver’s actions being affected by the claimant’s manoeuvre. The insured driver had been aware for more than a minute before the accident that the claimant was travelling in lane 1 as well as lane 2. He also saw the hazard involving the parked car. His view of it was reflected in the CCTV footage. He had time to observe that the parked car was being driven by a female driver. It follows that he would also have had time to observe the claimant’s manoeuvre. There is no suggestion that he had to slow down or hit his brakes because of it.
The insurer says that if the impact was caused due to the front the insured bus hitting the claimant, he would have been thrown forward and would not have landed to the side of the insured bus as seen in the CCTV footage 2. Accordingly, it is submitted that the insured bus had safely passed the claimant and it was the claimant’s actions, attempting to deviate into lane 2 without looking and without ensuring it was safe to do so, that was the sole cause of the collision.
The evidence is that the back side of the claimant’s bicycle was hit by the front wheel of the left side of the bus and hit again at the rear left side of the bus. This is consistent with the insured driver’s evidence that he did not give the claimant “enough room”. In other words, he side-swiped the claimant’s bicycle. My finding is that he made the unsafe and dangerous manoeuvre by overtaking the claimant’s bicycle when there was not enough room or space to do so. This submission is therefore not accepted.
The insurer submits that the speed at which the claimant was travelling was excessive and contributory to the accident. Had he been travelling at a slower speed, he could have safely avoided the hazard created by the driver’s door of the Mazda opening.
I do not accept that submission. The claimant was travelling ahead of the insured bus. When the claimant saw the hazard, he re-entered lane 2 and continued his path of travel. The insured bus was travelling behind him. He also saw the hazard. There is no evidence that the insured driver was taken by surprise by the claimant’s manoeuvre in avoiding the hazard. Indeed, the accident could have been avoided if the insured driver had slowed down or stopped instead of overtaking the claimant’s bicycle when it was unsafe and dangerous to do so.
The insurer submits that the claimant should have checked over his shoulders for any potential hazards when entering the bus lane. The claimant was aware that the insured bus was in close proximity to him and a reasonable person ought to have been aware of the risks of entering a bus lane, with a bus approaching in close proximity. Further, the claimant was in breach of Regulation 148 of the Road Rules through failing to give way to the insured bus before merging into lane 2. The failure of the claimant to comply with the requirements of Regulation 148(1) was a contributing cause of the accident.
The evidence shows that the claimant as a cyclist was travelling intermittently between lanes 1 and 2 for some time in front of the insured bus. While I accept that the cyclist did not indicate his intention to change lanes, I find that this omission did not contribute to the accident. The insured driver clearly was not looking at the claimant’s position on the road. As the insured driver admitted, he “lost appreciation and perspective for where you were on the roadway.” I am also mindful that, apart from the claimant and some parked cars, there was little else to distract the insured driver’s attention.
The evidence suggests that the bus was well behind him when the claimant took action to avoid the hazard. The insured driver also saw the hazard. Had he been paying attention to the claimant he would have anticipated that the claimant may merge right in response to a car door opening in front of him. The insured driver should have taken precautionary measures to avoid the hazard unfolding in front of him. As I have said, the accident could have been avoided if the insured driver had slowed down or stopped. Instead, the evidence reveals that he picked up speed and overtook the claimant’s bicycle, thereby causing the accident. The insurer’s submissions are therefore not accepted.
The insurer submits that the insured driver’s apology letter ought to be read in the context of the criminal proceedings brought against him, and notes that contrition and/or ameliorative conduct or voluntary rectification are subjective matters taken into account under section 21A(2)(d) of the Crimes (Sentencing Procedure)Act 1999.
If the submission suggests that the factual statements made by the insured driver in the apology letter is anything other than or less than the truth, the submission is rejected.
In the circumstances of this case, in accordance with section 5R of the Civil LiabilityAct 2002, I find that there is no contributory negligence on the part of the claimant in the motor accident. My finding is that the accident was caused solely by the insured driver’s unsafe and dangerous manoeuvre in overtaking the claimant’s bicycle when there was neither room or space to do so.
COSTS
The claimant was successful in this application.
There is no reason why the claimant should not be allowed his legal costs in the regulated amount.
I allow the claimant’s costs in the regulated amount of $1,881 inclusive of GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.38 of the MAI Act, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident.
The decision takes effect six months after the date of the motor accident and that is, from 8 September 2021.
Legal Costs: the amount of the claimant’s costs assessed in accordance with the Regulation is $1,881 inclusive of GST.
Member Maurice Castagnet
Motor Accidents Division
Personal Injury Commission
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