Cooper v QBE Insurance (Australia) Limited
[2022] NSWPIC 731
•19 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Cooper v QBE Insurance (Australia) Limited [2022] NSWPIC 731 |
| Claimant: | Andrew Cooper |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 19 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim application by claimant for determination that claimant is not wholly or mostly at fault; insurer conceded fault on the part of insured; amended allegation of contributory negligence from 70% to 50% and claimant conceded there was contributory negligence but not greater than 25%; claimant riding pushbike along main road in Kempsey when a collision occurred with the insured’s vehicle coming out of a KFC driveway; claimant alleged insured speeding; claimant made late allegation he was riding on foot path not the road; issue of visibility of insured by claimant and claimant by insured; no expert evidence and parties’ request to determine on the papers; Held – no independent or expert evidence of insured’s speed; member not satisfied claimant riding on road; Member not satisfied either claimant or insurer had a view of each other due to the presence of a parked truck and hedges obscuring their vision; claimant was riding on the road against the flow of traffic; claimant’s contributory negligence assessed at 50%; claim for costs of three miscellaneous claims assessment matters; costs allowed in each matter but not at the maximum amount for the two abandoned disputes. |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. Pursuant to s 3.38 of the Act, the claimant’s weekly payments of statutory benefits payable in respect of the subject accident are to be reduced by 50% on account of the claimant’s contributory negligence. 2. The amount of the claimant’s costs in the matter is assessed at $4,180 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Andrew Cooper was involved in a car accident on 10 March 2022. Mr Cooper was riding his bicycle along Smith Street at Kempsey when he was hit by a four-wheel drive utility coming out of a KFC business[1].
[1] The insured driver, Mr Wynan had purchased and collected food from the business at their drive through service. Reference in these reasons to the driveway is a reference to the drive through area which then crosses the footpath and leads to Smith Street.
Mr Cooper is 30 years of age and sustained significant injuries including a broken femur, fractured knee, bruises and he suffers from pain in his lower back.
On or about 25 March 2022, Mr Cooper made a claim for statutory benefits against QBE, the compulsory third-party (CTP) insurer of the vehicle that hit him and which he says caused the accident and his injuries.
QBE accepted the claim and paid Mr Cooper statutory benefits for the first 26 weeks after the accident however on 14 June 2022 QBE wrote to Mr Cooper denying his entitlement to any ongoing benefits on the basis he was mostly at fault and that his contributory negligence should be assessed at 70%.
After an unsuccessful internal review, Mr Cooper commenced proceedings in the Personal Injury Commission (the Commission) seeking a determination that he is not mostly at fault.
The proceedings were allocated to me and after three teleconferences, the parties requested I proceed to determine the matter on the papers.
Legislative Framework
The claim that is before me is a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act2017 (the MAI Act).
Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was “wholly or mostly at fault” for causing the accident. As Mr Cooper sustained a fracture of his femur, there is no issue about “minor injury” in his statutory benefits claim.
The parties agreed that whether someone is “wholly or mostly at faut” involved two separate concepts:
(a) whether the claimant was wholly at fault, or
(b) whether the claimant was mostly at fault.
Sections 3.11(2) and 3.28(2) state that “caused mostly at fault” is where there is a finding that the claimant was contributorily negligent, and that the degree of his contributory negligence is greater than 61%.
During the course of the proceedings the insurer made a significant concession, accepting Mr Cooper had an entitlement to continuing benefits on the basis that he was not wholly or mostly at fault, but also alleging Mr Cooper was contributorily negligence in the order of 50%.
The parties agreed that Schedule 2, part 3(f) provided the Commission with jurisdiction to determine the degree of Mr Cooper’s contributory negligence.
Submissions
Claimant’s submissions
The submissions lodged with the application[2] conceded there was some negligence on the part of the claimant but not to the degree alleged by the insurer. Paragraph one of the submissions says, “the claimant was riding his bicycle along the incorrect side of the road when the accident occurred”.
[2] Dated 18 August 2022 and forming part of A1.
The claimant argues:
(a) that the burden of satisfying me that there should be any reduction for contributory negligence lies with the insurer;
(b) the driver admitted to not seeing the claimant before the accident “if he was looking where he was going … he would have seen the claimant”;
(c) the driver was exiting a driveway and obliged to give way to traffic already on Smith Street;
(d) the claimant fractured his right leg which suggest he was hit by the insured vehicle when he was in front of the vehicle;
(e) the insured driver did not look left before turning, and
(f) the claimant alleges the insured driver drove at excessive speed.
The claimant noted there was no statement from the passenger in the insured vehicle and says I should infer that his evidence would not assist the insurer.
The claimant suggests I should not give any weight to the statement from the police officer included in the insurer’s investigator’s report as the police officer concerned was not the author of the police report and not the lead investigator of the accident.
The claimant accepts he was riding his bicycle on the incorrect side of the road but he says the insured driver exited the KFC driveway at an excessive speed without keeping a proper lookout and that the significant right sided injuries “support the proposition that the collision involved considerable force” which he says appears to be due to the speed of the insured.
The claimant says his statutory benefits should be reduced by 25% for his contributory negligence.
Insurer’s submissions
The insurer refers[3] to the version of events in the claimant’s statement and that of
Mr Wynan who had said the claimant came out from behind a truck and ran into the side of the bull bar of Mr Wynan’s car.
[3] The submissions are dated 7 September 2022.
The insurer says the claimant is mostly at fault because he was riding on the road on the wrong side of the road (for his direction of travel). He was also to blame because he was riding alongside a truck near a drive through exit and was aware the vehicle was at the drive through window and was likely to exit.
The insurer says there is no evidence of excessive speed. The insurer quotes the police report and the driver’s evidence who said he drove slowly onto the street looked to his right and the left and commenced to drive off.
The insurer says the claimant failed to keep a proper lookout, failed to heed the presence of the insured in the driveway, failed to take precautions, caused a traffic hazard by driving on the wrong side of the road and acted recklessly and dangerously.
On the other hand, the insurer says Mr Wynan drove slowly and was faced with the sudden emergence of the claimant driving the wrong way behind a parked truck.
The insurer then said:
“… the insurer submits that it should be found that the Claimant is most likely at fault. In the alternative, if the insured driver is found to be negligence (which is denied) the insurer submits that his contributory negligence should be assessed at no less than 70%.”
Claimant’s further submissions
The claimant’s further submissions repeat most of the previous submissions and suggest:
(a) the insured’s speed is “conceded by the extent of the injuries” and the speed of the insured caused significant injuries to the claimant which the hospital notes suggest was a “high-speed motor vehicle accident”;
(b) the claimant was thrown from his bicycle which also suggests speed, and
(c) the insured says he stopped near the parked truck and looked to the right and to the left – had he looked he would have seen the claimant.
The claimant says he was riding on the footpath, not the road. He admits the presence of the truck but says it would not have obstructed his view. He says the accident occurred in the middle of the driveway but that the claimant landed on the roadway. He marked up a diagram of the accident as follows:
[image unable to render]
The claimant again asserts that the finding against him should be restricted to contributory negligence of 25%.
The insurer’s further submissions
Having issued its revised liability notice, the insurer says the parties are equally to blame for the collision and therefore the claimant’s contributory negligence is 50%.
The insurer says the insured driver was “partially at fault” because “he appears to have been distracted” by a vehicle approaching from his right as he was exiting the driveway.
The insurer repeats the allegations of contributory negligence levelled against the claimant in its first submissions.
The insurer says there is now conflicting evidence of where the claimant was at the time of the accident. The insurer says the claimant’s first statement suggests he was on the road whereas he now says he was on the footpath.
The insurer says the claimant says his view was not obstructed yet he relies on photograph six which shows a car yard and tall hedges on the boundary between the car yard and the KFC driveway. The insurer says his view must have been obstructed by the hedges.
The insurer also notes that the claimant has since the proceedings commenced alleged he was travelling on the wrong side of the road which is inconsistent with him now saying he was riding on the footpath.
Issues for determination
In the light of the insurer’s revised liability notice I do not have to consider whether there was any fault on the part of Mr Wynan. The insurer admits Mr Wynan’s primary negligence (fault) caused the accident. I also do not have to consider whether
Mr Cooper is guilty of contributory negligence or not. He concedes there must be a finding of contributory negligence made against him.
The sole issue for me to determine is the degree of Mr Cooper’s contributory negligence. The claimant says it should be 25% and the insurer says it should be 50%.
In my view, the factual findings to be made are:
(a) was the claimant riding on the road or the footpath?
(b) was the claimant’s view of the insured obscured by the hedges or the truck?
(c) was the insured’ view of the claimant obscured by the hedges or the truck?
(d) was the insured speeding?
Review of the evidence
Claim form and claimant’s statement
The application for personal injury benefits was signed by the claimant and dated
25 March 2022. The claimant says he “was passing KFC … to be struck by a four wheel drive ute on the right hand side in the KFC drive thru ‘exit’ at a high speed”[4].
[4] Page 9 of the claimant’s first bundle.
The claimant provided a signed statement on 24 May 2022. He says:
(a) he had lost his driver license before this accident for drink driving but had not had any alcohol before the accident. He also admits to smoking “some weed” now and then but had not smoked any on the day of the accident;
(b) he was riding a mountain type push bike along Smith Street from his home to work. He was riding a bike because he had lost his license after a previous accident. He had been caught drink driving and then driving while suspended;
(c) it was the first time he had ridden his bike to work, he was wearing a helmet and had ridden about 6 or 7 km;
(d) the accident occurred at about 4.30pm on the western side of Smith Street. Mr Cooper says he crossed through a service station and onto the western side of the road riding against the flow of traffic “into a bike lane on that side”. He says there was no traffic when he crossed and no cars parked;
(e) he had crossed over the road so that he could coast up and around the next corner to where he worked;
(f) as he got near to the KFC drive through lane, “I saw the driver of a four-wheel drive collecting food from the collection window”. He says he could see that, because nothing was obstructing his view;
(g) he says, “I thought I had plenty of time to go past” before the car came onto the street so he continued “coasting”. When he arrived at the driveway exit “the next thing I know the four-wheel drive come speeding out of the driveway onto Smith Street and the front of the four-wheel drive struck me and my bike”;
(h) he repeats that he had not ridden there before, there was nothing blocking his view and he thought he had time to get past the four-wheel drive “before it came out onto the road”;
(i) he was knocked off his bike and lying on the road he was worried he was going to be run over;
(j) the claimant says “My right knee was up near my shoulders as my femur had been broken”;
(k) he says one of his old managers from a previous job was directing traffic around him;
(l) he says he did not speak to the driver and the police never took a statement from him. He went to the station a few weeks later, and
(m) he believes the accident was caused by Mr Wynan who drove too quickly out of the driveway.
The claimant provided a supplementary statement signed and dated 10 October 2020. He says:
(a)
at the time he was unaware there were any witnesses but recalls his old manager Mr Trent Whitby directing traffic. He was unsure whether
Mr Whitby had witnessed what happened and he does not have
Mr Whitby’s details;
(b) he went into the service station, came out and crossed from the correct side of the roadway to the incorrect side of the road travelling against the flow of traffic;
(c) there were no cars parked on the western side of the road and “I proceeded from the bike lane into the footpath” and was intending to ride to the next corner and turn and that was where his workplace was located;
(d) as he rode along the footpath, his view was not obstructed, and he was travelling at walking speed;
(e) he had seen the other vehicle at the first window. While there were hedges they did not obstruct his view; he could still see the driver as he stood up on the bike to see over the cars parked in the hard;
(f) as he approached the driveway exit (still riding at walking speed) he saw the driver at the second window collecting his food;
(g) he proceeded through the driveway exit as the other driver was still collecting his food and there was still nothing obstructing his view;
(h) “I had reached halfway through the drive through when the other motor vehicle suddenly collided into me at considerable speed. This was at the exact centre of the drive through”, and
(i) he says he was “hit at great speed” and thrown off his bike and landed on the roadway.
The claimant acknowledges “that I was driving on the wrong side of the road” however denies he did not contribute wholly or mostly to the circumstances of the accident or his injuries.
The claimant provided a diagram of the accident reproduced below:
[image unable to render]
He also referred to photographs from the insurer’s investigator’s report. The diagram above is important because of where the claimant says he was when he first saw the vehicle that hit him, and this was when that vehicle was at the first (payment) window. The diagram depicts the truck, referred to by the insured and records the presence of a bike lane (not seen in the photographs).
Other evidence
The claimant attached a copy of the discharge summary from the Port Macquarie Hospital. The claimant’s mid shaft femur fracture is noted. The history of being hit from the right side by a car with a bulbar is also noted.
The fracture does not appear to be a compound fracture as the description is “deformed and swollen right thigh” with no bone penetrating the skin but “mild comminution” was reported. There is certainly no suggestion in this document that the claimant’s leg was “up near my shoulders” as he has alleged.
The claimant was recorded as having a past history of anxiety and depression and that he smokes 8 to 20 cigarettes a day and smokes marijuana about 10 cones per day[5].
[5] At page 34 of the claimant’s further bundle.
In the history recorded by the radiology department is of a “high speed motor vehicle accident”[6].
[6] At page 9 of the claimant’s further bundle.
The police report was completed on 10 March 2022 by Senior Constable Heinz of Kempsey police station[7]. This report notes:
[7] Page 26 of the claimant’s bundle.
(a) the accident occurred on Smith Street at the intersection with Forth Street (incorrect);
(b) the road is a highway with multiple lanes and is straight and level;
(c) the weather was fine and the road surface was sealed and dry;
(d) the speed limit is 50 km per hour;
(e) the claimant was responsible;
(f) the claimant was riding a bike with a helmet on;
(g) Mr Wynan was driving a Nissan four wheel drive at 5 km per hour, and
(h) the description of the accident is as follows:
“At 4.35pm on 10th March 2022, a 42 year old male was riding his push bike South along Smith Street, Kempsey on the incorrect side of the road when he has passed a parked truck. As he passed the parked truck a 4WD Nissan vehicle driven by a 22 yr old male exiting KFC driveway has slowly merged out onto the roadway which resulted in the rider crashing into the vehicle. As a result the rider has sustained a broken leg.”
The claimant relies on a statement from Probationary Constable Cook from the Kempsey Police Station dated 24 May 2022. He was the junior officer to Senior Constable Heinz and attended the scene of the accident. The statement is not of great assistance as the officer did not remember many things. For example, the officer says Mr Wynan’s vehicle was on the driveway but does not recall whether it was past the footpath and believes Mr Cooper’s bike was on the roadway.
The claimant also relies on the statement from Mr Wynan dated 25 May 2022[8] which says:
[8] Page 69 of the claimant’s bundle.
(a) Mr Wynan’s license was suspended once for speeding;
(b) at the time of the accident he had a front seat passenger Anthony Singh;
(c) he had collected his order and was driving out of the driveway to Smith Street. He says there is a footpath and grass nature strip before the street and at the time there was “a large ‘Hertz’ truck parked at the kerb on my left side as I drove out, obstructing my view to my left”;
(d) he was only able to turn left out of the driveway because of the median strip separating the north and south lanes of Smith Street. All traffic was therefore coming from his right;
(e) Mr Wynan drove onto the street, stopped near the parked truck and looked right and left. As there was nothing coming he started to drive off:
“As I did the man on the bike, who was riding on the wrong side of the road just ran straight into the front left-hand side of my ute, into the bull bar.”
(f) Mr Wynan says he did not see the bike and rider before that and was not expecting anyone to be coming from that direction;
(g) after the collision Mr Wynan says he reversed off the road and stopped and he and his friend got out and called ambulance and police, and
(h) Mr Wynan was interviewed by the police the next day.
Mr Wynan completed an accident notification form for the insurer which is undated but the version of the accident is as follows:
“I was pulling out of a KFC drive thru. Look for traffic on the right – all good to go. Started merge into main road, cyclist came from behind truck on my left. Cyclist didn’t slow or stop to check for oncoming cars. Ultimately ended up in front o my car as I was merging.”
My Wynan’s diagram from that form is reproduced below:
[image unable to render]
The insurer relies on a statement from Anthony Singh dated 8 November 2022[9]. The statement suggests Mr Singh was asked to respond to Mr Cooper’s statement.
[9] Document AD5 in the Commission’s electronic file.
Mr Singh says, “at no time did I see the pushbike rider riding on the footpath”. Mr Singh says the claimant was travelling south on the wrong side of the roadway.
Mr Singh also says the bike rider was not travelling at walking pace “he was flying”.
Mr Singh says there was no way they could have been seen at either of the windows because there are bushes on the northern side of KFC and a parked Hertz truck on the roadway. He recalls the claimant was wearing earphones (white, Apple ear sticks).
Mr Singh says the claimant hit the car and the car did not hit the bike and the accident did not occur in the middle of the driveway. He suggests the claimant was totally at fault.
Mr Wynan provided a further statement dated 8 November 2022 also responding to
Mr Cooper’s statement[10]:
(a) he did not see the bike before the collision;
(b) the collision occurred on the roadway partially in lane 1;
(c) the bike rider could not have seen the 4WD because of the bushes and he was riding on the road not the footpath;
(d) the bike rider was riding at speed based on the impact. At the time of impact the rear of the vehicle would have been past the footpath, and
(e) Mr Wynan says he was riding slowly, the impact occurred in lane one and the rider ended up in the centre of the two lanes. He denied any accident related speed on his part.
[10] Document AD6 in the Commission’s electronic file.
My Wynan also marked up the investigator’s diagram[11] and signed it as follows:
[image unable to render]
[11] Document AD3 in the Commission’s electronic file.
This diagram includes a car drawn on the western side of Smith Street heading north heading in the same direction as the claimant.
Liability decisions of the insurer
The insurer’s first liability notice was dated 28 April 2022[12]. QBE accepted liability to pay Mr Cooper statutory benefits for the first 26 weeks.
[12] Page 13 of the claimant’s bundle.
The insurer’s second liability notice was dated 14 June 2022[13] and it says:
(a) the clamant was mostly at fault for failing to keep a proper looking and for riding on the wrong side of the road into the insured’s vehicle, and
(b) “in the alternative, if our insured drive is found to be negligent (which is specifically denied” we consider that you have contributed to the accident and that your contributory negligence is 70%.
[13] Page 15 of the claimant’s bundle.
The claimant sought internal review and the internal review decision affirmed the decision[14]. The application for internal review says that as the claimant approached KFC “he was in the bike lane” and refers to the insured speeding out of the driveway.
[14] The application for internal review dated 16 June 2022 is at page 17 of the claimant’s bundle and the internal review decision dated 7 July 2022 is at page 19.
The internal review decision says in the second paragraph that QBE “is entitled to determine your contributory negligence at 70% and that you are mostly at faut in the motor accident”.
On 31 October 2022 the insurer issued a further liability notice[15] which says:
“QBE accepts that our insured driver was mostly at fault. However, the information on file indicates that you also contributed to your injuries by failing to keep a proper look out and riding on the incorrect side of the road. Therefore, QBE allege that your contribution to your injury is 50%.”
[15] Documents AD2 and AD3 in the Commission’s electronic file.
The reason for this change of view was said to be because of the updated accident diagram which further submissions suggest was the diagram marked up by
Mr Wynan. At the teleconference, Ms Haideri indicated it was the presence of the other vehicle coming from Mr Wynan’s right that may have been the impetus for the fresh decision on liability. I note that vehicles coming from his right were drawn in
Mr Wynan’s original diagram.
FINDINGS OF FACT
In the teleconference report of 1 November 2022, I indicated to the parties if there was an issue as to the reliability of the claimant’s evidence, I would hold an assessment conference in order to test his evidence.
Ordinarily, the insurer would have put to Mr Cooper the matters challenged by it and
Mr Cooper would have put to Mr Singh and Mr Wynan those aspects of their evidence challenged by Mr Cooper. However at the last teleconference both parties pressed me to decide the matter on the papers. On that basis I will decide whether to accept or not the evidence of the various persons who have given statements, but I will make no findings as to their credibility as witnesses.
Was the claimant riding on the road or the footpath?
The claimant says at paragraph 10 of his 10 October 2022 statement that he was riding on the footpath. The insurer dispute this.
I do not accept the evidence of Mr Cooper that he was riding on the footpath because:
(a) there is no mention in his May 2022 statement of him riding on the footpath. In this statement, Mr Cooper said he crossed the street and rode into the bike lane. He did not say he rode up onto the footpath;
(b) he says twice that he thought he had time to ride past the driveway before the car came onto the road or onto the street – this infers he was riding on the road and thought he had time to ride past the driveway (as opposed to riding across the driveway) before Mr Wynan came onto the road where he was riding that is in Smith Street;
(c)
he says the car sped out onto Smith Street which again implies that
Mr Cooper was on Smith Street;
(d) the application for internal review says Mr Cooper was in the bike lane and the photographs reveal there is no bike lane. There is certainly a line painted on the road between the kerb-side parking lane and the first lane for traffic but there is no visible bike lane at or around the car yard or close to the driveway that is visible on the photographs, and
(e) both Mr Wynan and Mr Singh (an independent witness) have said the claimant was riding on the footpath.
There is no mention of the claimant riding on the footpath in the internal review application or in the original submissions to the Commission. The original submissions allege negligence or fault on the part of Mr Wynan for not giving way to traffic “already on Smith Street”. That “traffic” can only be a reference to Mr Cooper on his bicycle. Also of significance is that the claimant’s submissions conceding 25% contributory negligence were made on the basis the claimant was riding on the incorrect side of the road and there is no mention of the footpath. While the internal review application and the submissions have been drawn up by the claimant’s solicitor this must have been done on instructions. Therefore, I am of the view that the suggestion Mr Cooper was riding on the footpath is not to be accepted.
I am satisfied that Mr Cooper was riding on the roadway of Smith Street, against the flow of traffic on the right-hand side of the road to the left of the parking (kerbside) lane.
Was there a truck parked on the left (north) of the driveway?
The claimant at paragraph 16 of his first statement says there were no cars “there” and at paragraph 10 of his later statement he says, “there were no cars parked along the western side of the road”.
I am satisfied that there was a truck parked on the day of the accident because:
(a) Mr Cooper’s hand drawn diagram depicts a truck parked to the left of the driveway outside the car yard;
(b) Mr Wynan told the police, the day after the accident that there was a truck parked to the left (north) of the driveway;
(c) Mr Wynan completed the accident report form and drew a diagram for the insurer depicting the truck, and
(d) Mr Wynan and Mr Singh have both signed statements asserting there was a truck parked.
Did the hedges or the truck obscure the claimant’s or insurer’s view?
The photographs (in particular photographs six, seven and eleven) taken by the insurer’s investigator clearly show hedges between the car yard to the north of KFC and the driveway of the KFC.
At the second teleconference (31 October 2022) I commented that there was no expert evidence as to “proper lookout” that is what view Mr Cooper would have had of
Mr Wynan and what view Mr Wynan would have had of Mr Cooper and the time available to each of them to appreciate the presence of the other.
I have no evidence as to the height of the hedges, the height of Mr Wynan’s vehicle, the height of Mr Cooper on his bicycle sitting on the seat or standing on the pedals. It is also not clear how tall the photographer was and where he was when he took the photographs.
Appellate courts in cases such as Blacktown City Council v Hocking[16] have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. In the absence of expert evidence, I will consider the photographs but my comments and findings are predicated on the basis that I would have been assisted by expert evidence.
[16] [2008] NSWCA 144.
If photograph 12 was taken from the payment window of the drive through, it does not appear to allow for anyone to see much beyond the end of the driveway and perhaps a few feet on either side. If photograph 13 was taken from the food collection window, a little bit more of the road can be seen but only a metre or so of footpath can be seen. These two photographs suggest Mr Wynan would have had no opportunity to see anyone approaching from the left until he was almost at the end of the driveway just before the footpath (photograph 14).
Photographs six and seven suggest the hedges are almost as tall as the KFC building which, along with the light pole and electrical box on the footpath near the driveway, raise significant doubts in my mind as to whether the claimant could have seen
Mr Wynan’s vehicle at the payment or food collection window.
There is no photograph of the truck, or a similar truck parked where Mr Wynan and
Mr Singh say it was, but photograph eight shows the parking lane. It is clear to me from that photograph that if there was even a small truck parked in that location it would restrict the claimant’s ability to see a vehicle that was coming out of the driveway.
Mr Singh and Mr Wynan say the truck was there and obstructed the view to the left as they drove out onto the road.
All of the photographs when considered together satisfy me that due to the presence of the truck and the hedges it was highly unlikely that Mr Cooper could have seen
Mr Wynan’s vehicle as it was leaving the drive through service and that Mr Wynan would have had limited, if any opportunity, to see Mr Cooper approaching due to him being hidden from view behind the parked truck.
Was the insured speeding?
At the second teleconference I observed that there was no evidence as to the speed of Mr Wyman’s vehicle. Mr Cooper has said in his claim form and statements that
Mr Wynan was driving “too quickly”, at “high speed”, “considerable speed” or “great speed”. He has never at any stage provided an estimate of the actual speed he says Mr Wynan was driving.
Bearing in mind my findings as to where Mr Cooper was riding his bicycle, the presence of the truck and the limited visibility of both Mr Cooper and Mr Wynan caused by the presence of the truck and the hedges, I have doubts that Mr Cooper would have been in a position or had sufficient time to make an estimate of the speed of
Mr Wyman’s vehicle in any event.
Mr Cooper submitted that the nature of his injuries was testament to the speed of
Mr Wynan. He relies on a history given by someone to the radiologist at the hospital that the accident was a “high speed” one. This does not provide evidence that
Mr Wynan was driving at speed as it could be that Mr Cooper was the one travelling at speed.
Mr Cooper says he was riding on the footpath at a walking pace. Mr Singh said
Mr Cooper was “flying” like someone running flat out. If Mr Cooper was in fact riding his bike very fast in order to beat Mr Wynan as he moved onto Smith Street from the end of the driveway, that could account for his injuries as opposed to speed on the part of Mr Wynan.
Mr Wynan says he was driving at 5 km per hour in what is a 50 km zone. Mr Wynan had collected his food and was driving down what looks like a narrow driveway, across a footpath and onto a two or three lane part of Smith Street. In my view it seems implausible that Mr Wynan would be driving or be able to drive beyond 50 km per hour in those circumstances.
I am not therefore satisfied that Mr Wynan was “speeding” because there is no expert or other evidence to support him driving at a speed other than the speed he has suggested of 5 km per hour.
CONSIDERATION OF THE ISSUES
Having found Mr Cooper was riding on the road, on the incorrect side and that there was a truck blocking his view of Mr Wynan and Mr Wynan’s view of him, it is difficult to identify Mr Wynan’s breach of duty of care. However, the insurer has admitted
Mr Wynan did breach his duty of care to Mr Cooper and that Mr Wynan’s fault caused Mr Cooper’s accident. It is possible that Mr Wynan should have moved out even more carefully into Smith Street edging out gradually on the chance that there would be someone coming the wrong way from his left. It is also possible that Mr Wynan should have seen Mr Cooper as he rode along Smith Street before he went behind the truck and out of sight of Mr Wynan.
Mr Cooper concedes he is guilty of some contributory negligence for riding on the road in the direction against the traffic. I accept that he too is at fault and that his riding on the incorrect side of the road contributed to the accident and his injuries.
It therefore remains for me to determine the degree of Mr Cooper’s contributory negligence.
The leading authorities on the approach to the assessment of contributory negligence are Pennington v Norris[17] and Podrebersek v Australian Iron & Steel Pty Ltd[18] (Podrebersek). In Podrebersek it was said at [10]:
“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, ie 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. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
[17] (1956) 96 CLR 10.
[18] (1985) 59 ALR 529.
In Mr Wynan’s case, I have found that he was not speeding. His evidence suggests he was moving slowly, stopped and then looked to his right checking the traffic coming from the right. He was not paying as much attention to the left side because as he said, he was not expecting to find someone riding a pushbike on the incorrect side of the road and who was, for a period of time, hidden from view by a parked truck. The insurer says what Mr Wynan did wrong was to be distracted by the traffic from the right which led to him failing to see the approach of Mr Cooper on his bicycle. The difficulty with that submission is that there is no evidence Mr Wynan was distracted. He has said as much in his statement. If he was distracted, he was distracted from looking to the left from where it may not have been foreseeable for there to be traffic approaching. That suggests to me a small degree of fault on his part.
In Mr Cooper’s case he was riding on the incorrect side of the road next to a truck that would block his view of any vehicle coming out of the homes and businesses on that side of the road. He has said in his statements that he was riding on the footpath which I do not accept and could see Mr Wynan as he drove from the pay window to the food collection window which I also do not accept. He thought he could make it before
Mr Wynan crossed his path. At no stage does Mr Cooper say he stopped to see what was coming out of the KFC driveway before riding towards his workplace.
In my view having made the findings I have made, I am of the view that the claimant’s contributory negligence is much greater than 25% and at a hearing with the ability to question both parties, possibly greater than 50%. However, the parties asked for me to assess this matter on the papers and on that basis, I do not consider it appropriate to make a finding of liability or contributory negligence contrary to the submissions of the parties.
The claimant’s contributory negligence should be assessed at 50%. In my view, he has a high degree of culpability.
COSTS
Submissions
The claimant has, since the first submissions were lodged, made a claim for costs. In the further submissions the claimant maintained the claim for costs to be assessed in accordance with the Motor Accident Injuries Regulation 2017 (the Regulation).
On 15 November 2022 the claimant submitted he should be entitled to the maximum regulated legal fees for each of the three disputes referred to the Commission under Schedule 2, cl 3 (d), (e) and (g).
On 15 November 2022 the insurer says the maximum amount for each dispute is $1,800.48.
The insurer says:
(a) the claimant is only entitled to one amount because there was only a dispute about one matter (reduction of statutory benefits for contributory negligence under s 3.38);
(b)
no costs should be allowed for the other disputes because as at
19 August 2022 (when the claimant lodged the application with the Commission) the claimant had conceded he had contributed to the cause of the accident and as at 31 October 2022 the insurer had admitted primary liability on the part of its insured and therefore the only dispute between the parties was the degree of the claimant’s contributory negligence, and
(c) if three separate claims are allowed, I ought allow what is reasonable and necessary, which would be minimal given the history of the liability decisions outlined by the insurer.
Three disputes or one?
The insurer has provided a chronology of the liability decisions made by the various parties in this matter. The insurer’s summary and my comments are as follows:
(a) 14 June 2022 – insurer determines claimant mostly at fault with contributory negligence assessed at 70%. This notice is not that clear – in the second paragraph of the letter the insurer alleges the claimant is mostly at fault however the insurer then denies “specifically” that its insured driver was negligent at all. Contributory negligence of 70% was then alleged. A fair reading of this notice suggests that the insurer is alleging the claimant is wholly at fault (100% to blame) or in the alternative that he is mostly at fault with his contributory negligence assessed at more than 61%;
(b) 7 July 2022 - the insurer clearly states the claimant is mostly at fault because QBE has determined Mr Cooper’s contributory negligence at 70%. This notice is clear. There is no allegation here that Mr Cooper is wholly at fault only an allegation that Mr Cooper is mostly at fault;
(c) 19 August 2022 – the claimant lodged the application of assessment by the Commission submitting his contributory negligence should be assessed at 25% - that is correct but the application reveals that the type of dispute referred for assessment was “Is injured person mostly at fault”. This is a different type of dispute to the dispute that was ultimately required to be determined;
(d) 31 October 2022 – the insurer issued a reviewed liability notice determining contributory negligence at 50% and conceding the claimant was not wholly at fault “as a result of the insured driver providing an updated diagram of the scene of the accident. This liability notice is also not clear as the notice does not concede the claimant is mostly at fault but concedes “our insured driver was mostly at fault”. That suggests the insurer is of the view that the insured is more than 50% responsible. Despite that QBE then alleges contributory negligence on the part of the claimant should be assessed at 50%, and
(e) 17 November 2022 – the insurer filed final submissions saying the parties were equally to blame. That is correct although the insurer says its insured was “partially at fault”.
The insurer does not refer to the submissions lodged with its reply form which says that the claimant is “most likely at fault” or that, in the alternative if Mr Wynan is found to be negligence “which is denied” that contributory negligence should be assessed at 70%. A fair reading of these submissions is that the insurer is denying any fault on the part of its insured at all and that Mr Wynan is wholly at faut or that, in the alternative that he is mostly at fault because his contributory negligence is greater than 61%. It is not therefore a situation where the only issue between the parties since the application was lodged in the Commission was the degree of the claimant’s contributory negligence. The insurer’s submissions lodged with the reply clearly put in issue whether there was any negligence or fault on the part of Mr Wynan.
In my view at various times in the course of this statutory benefits claim, the claimant has been faced with an allegation that he was totally to blame and therefore wholly at fault, or that he was mostly at faut with contributory negligence alleged at 70% or more than 61%.
At the time the claimant referred the claim to the Commission, there were two disputes and they were:
(a) whether the claimant’s weekly statutory benefits under Part 3 division 3 could continue beyond 26 weeks after the accident, and
(b) whether the claimant’s treatment and care statutory benefits under Part 3 division 3 could continue beyond 26 weeks after the accident.
These two disputes were abandoned after the first teleconference and on the eve of the second when the insurer amended its position on liability and reduced its allegation of contributory negligence to 50%. The parties then agreed that I should proceed to determine a third dispute that is the degree of the claimant’s contributory negligence.
This suggests to me that the claimant has an entitlement to claim the costs associated with the above three disputes.
Assessment of costs
There is no issue that costs are to be determined in accordance with the Regulation. There is also no dispute between the parties about the amount that can be allowed for a miscellaneous claims assessment matter under the Regulation. The insurer says the amount is $1,800,48.
This is not quite correct. Schedule 3(3) of the Regulation provides for the rounding up or down (to the nearest dollar) of the maximum amount for costs calculated with reference to the monetary unit. Therefore, the correct maximum amount that may be awarded is $1,800.
Schedue1, Part 1 cl 3 of the Regulation says that “the maximum costs for legal services provided to a claimant …involving a dispute about a regulated miscellaneous claims assessment matter” is the sum of $1,800.
The use of the word “maximum” suggests I cannot assess costs in excess of the maximum and that there is a range from $0 to $1,800. Costs might be calculated at above the maximum, but the concept of a maximum or cap operates to effectively limit the costs payable by the insurer.
The use of the word “maximum” does not appear to suggest proportionality that is, by undertaking an analysis of the work done as a proportion of the maximum amount that can be paid. In the case of Hodgson v Crane[19] the assessment of non-economic loss was considered in terms of a similar concept being the maximum amount of damages that may be awarded for non-economic loss. That case held that there is not one case (for example the brain damaged quadriplegic) who recovers the maximum damages for non-economic loss and every other injured person is assessed at less than that. The Court found that there may be many injuries that would attract the maximum.
[19] 55 NSWLR 199.
In my view noting the number of teleconferences in this matter, the lengthy submissions made by the claimant and the documentation involved including the somewhat confusing allegations of fault and contributory negligence which the claimant was required to address, I should allow:
(a) the sum of $1,800 for the costs associated with the dispute under s 3.38 (reduction of weekly statutory benefits for contributory negligence), and
(b) the sum of $1,000 each for the disputes under s 3.11 (cessation of weekly benefits) and s 3.28 (cessation of treatment and care benefits).
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