Colig v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 470
•14 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Colig v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 470 |
| CLAIMANT: | Slavko Colig |
| INSURER: | NRMA |
| MEMBER: | David Ford |
| DATE OF DECISION: | 14 September 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims assessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); motor vehicle being driven by the claimant on the incorrect side of the road and as a consequence, collided head on with the motor vehicle being driven by the insured driver who was driving on the correct side of the road; no explanation as to why the claimant was driving on the incorrect side of the road and claimant has no memory of the accident; after the accident, the insured driver was found to have a blood alcohol reading of 0.168; determined insured driver owed a duty of care but contributory negligence on the part of the claimant assessed at 80%; claimant suffered serious fractures to his face, jaw, right wrist, sternum, ribs and toes; insurer conceded claimant’s whole person impairment exceeded the threshold; claimant is a security guard; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past economic loss. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim the NRMA's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant I assessed contributory negligence at 80%. 2. The amount of damages assessed in respect of this claim is $64,291.60 which includes any statutory benefits paid by the insurer. 3. The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 is $34,936.45 inclusive of GST. 4. Attached to this certificate are reasons for my assessment. |
STATEMENT OF REASONS
INTRODUCTION
On 28 September 2019, the claimant was driving his Mercedes motor vehicle motor along Jerrara Road at Marulan and whilst doing so, was driving on the incorrect side of the road. As a consequence, he collided head on with the motor vehicle being driven by the insured driver, who was driving on the correct side of the road. The police report records the claimant had exited premises at 124 Jerrara Road, turned left, and continued on the incorrect side of the road for at least 200-300m. There is no explanation as to why he was driving on the incorrect side of the road and he has no memory of the accident. Furthermore, I note in the Application for Damages Assessment there was no statement from him. After the accident, the insured driver was found to have a blood alcohol reading of 0.168.
Police and ambulance attended the scene of the accident, and he was transported to Canberra Hospital he was admitted to the intensive care unit. He was diagnosed with the following significant injuries:
(a) Le Fort 11 fracture on the right side of the face and Le 111 fracture on the left side of the face;
(b) fracture left mandible at the angle end of the coronoid process;
(c) intra articular fracture right wrist involving the styloid process of the radius and disruption of the distal radioulnar joint;
(d) fracture of the sternum at the junction of the manubrium and the sternal body;
(e) fractures of the anterior ribs on the right side from 2 to 4;
(f) fracture of the lateral aspect of the ribs on the left side from 1 to 8, and
(g) fractures of the terminal phalanges of the great toes on both sides.
He had plastic surgeries to his extensive facial injuries with restoration of anatomy by use of multiple plates and screws in the facial bones. He had plating of his left mandibular fracture and the fracture of the right wrist was treated by volar plate and screws and the distal radioulnar was repaired.
At the time of his accident, he was employed as a security guard with Protect Corp Security and in the application for personal injury benefits, he states he was earning $1,000 per week. He produced two pay slips from his employer dated 30 May 2019 and 22 August 2019, which indicated he earned $870 net per week. His notice of assessment for 2019 revealed a taxable income of $49,818, which equates to $790 net per week. He was requested by the insurer to produce taxation records and other economic loss records including pay slips, but such documentation was not provided by him.
The claimant submitted since his accident he has not being able to return to work, However, he was injured in a subsequent motor vehicle accident on 26 February 2020 when he sustained injuries whilst riding his motor scooter. He received statutory benefits from the CTP insurer, Allianz, for a period of six months. He was deemed to have been at fault in respect of the subject accident.
The initial submissions on damages lodged on behalf of the claimant did not take into account the statutory benefits paid by Allianz and it was necessary to obtain from the claimant a revised schedule of damages, which was particularised in further submissions from his counsel dated 25 July 2023.
I refer to the document headed RTW and Recovery Report with Costed Rehabilitation Plan prepared by Allianz in respect of the second accident and dated 18 June 2020. In this report there is detailed information regarding the claimant's work history post the subject accident on 20 September 2019 on page 2 of the report, I note the following:
“Mr. Colig has been working casually intermittently over the last 10 years and has been working with his current employer for the last 4 years. Mr Colig is currently on a casual contract but typically works full time hours.”
He was born in 1960 and is presently 63 years of age.
LIABILITY
The insurer has denied liability. In their further closing submissions, the insurer has submitted in the event the claimant establishes liability against the insured driver (which is strongly denied by the insurer), the insurer submits there is contributory negligence of at least 85% to 90% on behalf of the claimant. In the further submissions from counsel for the claimant dated 25July 2023, it is submitted the claimant’s contributory negligence is 50%.
I have read the research article titled “Study of the effects of alcohol on drivers and driving performance on straight roads” dated 23 February 2016 served by the claimant and I did not find this article was of assistance to me in determining my decision with regard to liability and contributory negligence. I note the claimant did not serve a report from a pharmacologist as to the consequences of the insured driver driving his vehicle with a blood alcohol reading of 0.168. The fact that no such report was served, in my opinion, does not prevent me from making findings as regards the effect a blood alcohol reading would have upon ability of the insured driver to take reasonable care when driving his motor vehicle.
The claimant relied upon two reports from Mark George of Accident Investigation Services Pty limited. The insurer relied upon a report of Associate Professor Robert Anderson dated 22 June 2023. I find the circumstances of the accident are not in dispute. The claimant was driving on the incorrect side of the road and the insured driver was driving on the correct side of the road. In determining the issue of liability, I was assisted by the questioning of the insured driver at the assessment conference. The insured driver, after the accident, returned a blood alcohol reading of 0.168. He is a long-haul truck driver. He is very familiar with Jerrara Rd and the surrounding area. He travels this road at least seven times per week and stated he was travelling at between 60-70 kmph and was “building up” and accelerating as he approached the speed zone on the road, which changed from 60 kmph to 80 kmph. When he saw the claimant's oncoming vehicle, he applied his brakes and swerved his vehicle to the left and tried to avoid a collision. He confirmed the claimant 's vehicle was wholly on the wrong side of the road.
When questioned by counsel for the claimant, the insured driver, admitted the consumption of alcohol would have affected his ability to react. He said he only saw the claimant’s vehicle milli seconds before the accident. He stated even if he was travelling at 60kmph, he could not have avoided the subject accident. However, he did agree his reaction time was slower because of the fact he had consumed alcohol.
Mr Grahame Wade was a witness to the accident and was questioned at the assessment conference. I refer to his statement dated 15 June 2023. At paragraph 20 he states the following:
“I believe the white car was travelling at 60 to 70 kilometres per hour and the utility about 40 kilometres per hour, At the time of impact. the white car did not take any evasive action, at no time it braked, and I did not see any brake lights come on at any time.”
At the assessment conference, Mr Wade stated his estimation of 40kmph of the speed of the insured vehicle was just an assumption on his part.
The blood alcohol rating of 0.168 is a high reading, more than three times the legal limit placed upon motorists in this State. I find the insured driver was impaired as far as his ability to react to the dangerous situation which he faced, and as stated above, he agreed at the assessment conference his reaction time was slower because of his consumption of alcohol. The insured driver is required at all times, when driving his vehicle to keep a proper lookout and not drive at excessive speed in the circumstances. Whilst I accept, he was driving his vehicle under the speed limit on this particular stretch of Road, because he had consumed a significant quantity of alcohol and, since he decided to drive his vehicle home, he should have done at a speed well within the speed limit to enable his reaction time to be longer. Having said that, he should not have been driving his vehicle at all on the road. The fact he drove his vehicle from the Terminus hotel at Marulan to the point of impact without incident is a submission which I am not prepared to accept, as there may have been no need for him, during this journey, to react to a situation which would require him to take evasive action or apply the brakes of his vehicle. He was confronted with a dangerous situation which did require an emergency response and there may have been little time for him to take complete evasive action. However, he was able to take some evasive action, by swerving his vehicle to the left, and as stated above, he has conceded his reaction time was slower because of the consumption of alcohol. If he had not been affected by alcohol, as conceded by him, he may well have been able to take quicker evasive action, which may have resulted in a lesser impact with the claimant’s vehicle or no impact at all.
Therefore, after having the benefit of reading all of the documentation served in this manner and after hearing from the insured driver at the assessment conference, I find the insured driver has breached his duty of care to the claimant, which has resulted in the claimant sustaining personal injury/loss/damage as a result of the said breach. However, I do find the allegation of contributory negligence to be proven and my reasons for such finding are as follows.
CONTRIBUTORY NEGLIGENCE OF THE CLAIMANT
The onus proving contributory negligence rest upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
In Manley v Alexander 2005 HCA 79 at 11, the majority of the High Court emphasised the duty of a driver to ‘give reasonable attention to all that is happening on or near the roadway that might present a source of danger’.
An insured driver who asserts a claimant is negligent in failing to keep a proper lookout must also establish the claimant had the opportunity to see the insured driver and failed to do so. This is consistent with the principle in Manley v Alexander, that is the duty of a motorist to be observant of all possible sources of danger on the road.
Section 5R (1) of the Civil Liability Act 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time, see s 5R (2)(a) and (b).
Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against the 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, and
(e) the determination of whether a claimant it has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case see, Serrao (by his tutor) Serrao v Cornelius (2) 2013 NSW CA231 at (61).
The claimant was driving his motor vehicle on the incorrect side of the road and had done so for at least 300m. He has no recollection of the accident. He has provided no explanation as to why he was driving his vehicle on the incorrect side of the road prior to the collision. He did not apply the brakes of his vehicle nor take any evasive action or reduce the speed of his vehicle which I accept was travelling at between 60 to 70kmph at the time of impact.
I therefore find the allegation of contributory negligence to be proven and I assess contributory negligence at 80%.
Furthermore, for the reasons which I state below, I have accepted the claimant sustained personal injury, loss and damage as a result of the said breach of duty of care. I will now assess damages.
Outline issues in dispute
The following issues have arisen in this matter:
(a) non-economic loss;
(b) past economic loss;
(c) past superannuation;
(d) future economic loss;
(e) future superannuation, and
(f) Fox v Wood.
The main issues requiring my determination are as follows:
(a) what is the entitlement to damages for non-economic loss;
(b) to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(c) what is the entitlement to damages which flow from the findings on the above issues.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Submissions made by the claimant
The solicitor for the claimant arranged for him to be examined on a medico legal basis by
Dr James Bodel, orthopaedic surgeon, and I refer to his report dated 5February 2021.
On page 5 of his report, he states the following:
“The diagnosis is multiple facial fractures, the soft tissue injury to the neck and the back, a rotator cuff injury to the region of the right shoulder, a fracture of the right wrist, an injury to the lower part of the back and a direct blow to the front of the left knee with painful retro patella crepitus in that knee.”
Dr Bodel opined the prognosis remains guarded because of the severity of the injuries.
The claimant was also seen on a medico legal basis by Dr Michael Delaney, ophthalmic surgeon, and Dr Michael McGlynn, plastic surgeon and I have noted the contents of both those reports.
I refer to the further submissions from counsel for the claimant and I note it is submitted, inter alia, the following:
“In the absence of no evidence, it was put to the claimant that he was working, however it should be accepted that the claimant has not worked since the date of the motor vehicle accident.”
The submissions now make an allowance for the statutory benefits paid to the claimant by Allianz in respect of the second accident. It is submitted for non-economic loss an amount of $350,000, past economic loss for a period of 178 weeks at $900 net per week which totals $160,200. There is a claim for past superannuation in the sum of $17,622. Future economic loss claimed for 7 years at $900 net per week calculated in accordance with actuarial tables in the sum of $236,691. Future superannuation is claimed in sum of $26,036. The total amount claimed on behalf of the claimant is $790,549 and it is submitted the deduction for contributory negligence should be the amount of 50%.
Submissions made by the insurer
The solicitor for the insurer arranged for the claimant to be examined on a medico legal basis by Associate Professor Shatwell and I refer to his report dated 26 January 2023. On page 13 of his report, he was of the opinion, the claimant was physically fit from the musculoskeletal point of view to undertake his pre-injury employment at that time. He further states it would have been reasonable for the claimant to consider a return to work at a period of six months post-accident. In the closing submissions from counsel for the insurer, it is submitted an amount should be allowed for non-economic loss in the sum of $200,000, past economic loss should be allowed in the sum of $19,500, and Fox v Wood in the sum of $1,958. It is submitted there should be no allowance for future economic loss.
I further note the following submission at paragraph 22:
“it became clear is that the claimant had in fact received weekly compensation from Allianz in connection with this accident., What is more, the relevant documents
(including the RTW and Recovery Assessment Report of Recovre dated 18 June 2020 and the application for personal benefits form dated 31 March 2020) all suggest that the claimant had in fact returned to work as a security officer with Protect Corp Security at the time of the second accident, as well as having recovered in other ways, in that he had returned to social activity and exercise, and was independent with self-care and the ADL's by the time of the second accident.”
REASONS
NON-ECONOMIC LOSS
The claimant is entitled to damages for non-economic loss. The solicitor for the claimant has submitted a sum of $350,000 for such damages, and the insurer, in response, has submitted a sum of $200,000 to be appropriate, in determining the appropriate amount to be awarded to the claimant I was assisted by the reports of Drs Bodel, Delaney and McGlynn. I accept this accident has had a significant impact upon his enjoyment of life as well as his physical and mental state. His ongoing disabilities are permanent and having regard to his age and the nature and extent of his injuries and disabilities I consider an appropriate amount for non-economic loss is the sum of $300,000.
Past loss of earnings
I did not accept the claimant has not been able to engage in full-time or part-time employment since the accident and having regard to the detailed information contained in the RTW Recovery Assessment Report referred to above, I accept the submission from the insurer the appropriate amount to be awarded for past loss of earnings is the sum of $19,500 inclusive of superannuation.
Therefore, the total amount to be awarded for past loss of earnings is the sum of $19,500.
Past superannuation
I accept the submission of the insurer the amount for past superannuation is included in the sum of $19,500 as stated above.
Future loss of earnings
In view of my findings in regard to past loss of earnings I do not accept the submission the claimant is entitled to damages for future loss of earnings, and I make nil allowance for this head of damage.
Future superannuation
I make nil allowance for future superannuation.
Fox v Wood
I have allowed the sum of $1958 as submitted by the insurer.
Assessment of damages summary
Under sub-section 7.36 (1)(b) of the MAI Act. I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above,
non-economic loss $300,000
Past loss of earnings $19,500
Past superannuation $ nil
Future loss of earnings $ nil
Future superannuation $ nil
Fox v Wood $1,958
Total of economic losses and non-economic loss $321,458
Reduction for contributory negligence 80 %
TOTAL DAMMAGES ASSESSED $64,291.60
Costs and disbursements
I assess the claimant's legal costs and disbursements in accordance with the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet.
CONCLUSION
On the issue of liability for the claim the NRMA's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant, I assessed contributory negligence at 80%.
I specify the amount of damages for this claim as $64,921.60 which includes any statutory benefits paid by the insurer.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $34,936.45 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017;
(b) Motor Accident Injuries Regulation 2017;
(c) Personal Injury Commission Regulation 2020;
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.
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