Crowe v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Crowe v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 508
CLAIMANT:	Robert Crowe
INSURER:	Insurance Australia Limited trading as NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	27 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant was wholly at fault under sections 3.11 and 3.28; dispute between the insurer and the father of a male who lost his life in a motor vehicle accident occurring on 31 October 2021; deceased was a passenger in a vehicle travelling in the early hours of the morning on the Hume Highway; that vehicle was involved in a motor accident; the deceased exited that vehicle and entered the roadway where the insured truck struck the claimant; insurer relied on an expert traffic engineer report; whether the accident could reasonably have been avoided; questions of whether visual clues existed to alert the driver of a hazard; whether the insured driver was at fault for not having high beam headlights illuminated; claimant alleged the deceased was a “good Samaritan” at the time of the accident and therefore could not be found at fault pursuant to Part 8 of the Civil Liability Act 2001 (CL Act) or otherwise the common law principles of “good Samaritan”; whether the CL Act applies to statutory benefits; Held – the CL Act applies; the deceased was not a “good Samaritan” firstly on the basis that the evidence did sufficiently establish the deceased was flagging down assistance from the insured truck (which the Coroner had concluded); Coroner’s findings merely conjecture; also found that Part 8 of the CL Act does not apply to the subject circumstances as the “defence” is not available to the claimant; the deceased not incurring any civil liability; civil liability is not synonymous to contributory negligence; found the proximate cause of the motor accident was that the deceased entered the path of the insured truck in the middle of the night on a highway; insured could not have reasonably avoided the accident; if it was unreasonable for the insured to not have high beams illuminated any liability would be no more than 25%; the deceased was mostly at fault; costs claimed on an exceptional basis pursuant to section 8.10(4)(b), not opposed by the insurer; exceptional costs awarded pursuant to section 81.0(4)(b).
DETERMINATIONS MADE:	FINAL CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 1. For the purposes of s 3.28 the motor accident was caused mostly by the fault of the deceased. 2. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 3. Legal Costs: an exceptional costs order is granted pursuant to s 8.10(4)(b) in the amount of $21,325.60 plus GST.

STATEMENT OF REASONS

INTRODUCTION

Mr Robert Crowe (the claimant) has made a claim for statutory benefits due to a psychological injury suffered as a result of the death of his son, Mr Jordan Crowe (the deceased), in a motor vehicle accident occurring on 31 October 2021.
The claimant lodged an Application for Personal Injury Benefits with Insurance Australia Limited trading as NRMA (the insurer), who insured the vehicle considered by the claimant to be at fault.
The insurer initially accepted liability for payment of statutory benefits. Liability continued to be accepted post 26 weeks via notice dated 21 February 2022, which advised that liability investigations were continuing and a further liability notice would be issued thereafter.
The insurer denied ongoing liability for statutory benefits via notice dated 5 December 2022. The insurer gave notice of their determination that the claimant’s son was wholly or mostly at fault for the motor vehicle accident.
That decision was the subject of an internal review. I understand that the insurer affirmed their original decision.
The claimant subsequently lodged an application with the Personal Injury Commission

(Commission) seeking a determination of the dispute between the parties.
I have held two teleconferences with the parties. The first occurring on 22 February 2023. Directions were made regarding further evidence and submissions. Upon consideration of the material before me, I determined that a further teleconference was required to discuss the issues and whether further evidence and/or submissions were required.
A further teleconference occurred on 12 April 2023 and directions were thereafter made regarding the service of further evidence, including a traffic expert report from the insurer, and further submissions.
The insurer has since served a traffic engineer’s report and both parties have provided submissions.
Both parties agreed that it was appropriate that I determine the dispute on the papers, without the requirement for an assessment conference.

DOCUMENTS CONSIDERED

I have considered the documents provided in the application and the reply and any further information provided by the parties.

LEGISLATIVE FRAMEWORK

Section 3.11 of the Motor Accident Injuries Act 2017 (MAI Act) provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1)    An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2)     A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
In this case, the claimant was not involved in the accident and instead suffered mental harm as a result of the death of his son as a result of the accident. In such circumstances it is noted that s 3.39 provides that Part 3 (Mental harm) of the Civil Liability Act 2002 (CL Act) applies to the payment of statutory benefits under Part 3 of the MAI Act the same way as it applies to the award of damages in connection with an injury, subject to modifications.
Section 30(2) in conjunction with s 30(5)(a) of the CL Act provides that a parent of the victim is entitled to recovery of damages (statutory benefits in this case).
Section 30(3) provides that:
“any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.”

SUMMARY OF EVIDENCE

The circumstances of the accident are tragic. The evidence establishes that the deceased was a passenger travelling in a vehicle (2006 Mazda 6) driven by a Mr Strahan in the very early hours of the morning of 31 October 2021.
For unknown reasons, at approximately 2.00am, such vehicle was travelling southbound in the northbound lanes of the Hume Highway, Lada Vale NSW. Mr Strahan caused for the vehicle to collide head on with a 2018 Mercedes Benz Atego Pantech truck, which was travelling in northbound in the northbound lanes.
The Hume Highway being a dual carriageway, with two southbound lanes and two northbound lanes, divided by a median strip with established vegetation.
The speed limit is 110kmph (100 kmph for heavy vehicles).
Mr Strahan’s vehicle came to a complete stop across lane 2 of the northbound lanes. The tabletop truck came to a stop within the median strip of the highway.
Mr Strahan was trapped in the vehicle. At some point the deceased removed himself from the vehicle.
The insured vehicle, a 2013 Western Star 4800 prime mover, was travelling towards the accident scene, in a northbound direction.
The deceased at around the same time came onto the roadway and a collision ensued between him and the front of the insured vehicle.
The NSW Police material reveals that the deceased was located on the gravel next to lane 2 approximately 10m north of Mr Strahan’s vehicle.

Factual investigation reports of Barringtons dated 25 January 2022 and 3 March 2022

These reports were commissioned by the insurer.
The reports provide a summary of the accident circumstances and include a number of attachments which I have considered. Photographs of the insured vehicle demonstrate damage to the front driver’s side headlight. The light is hanging from its fitting, attached by wires.
The reports attach a transcript statement between an investigator and Senior Constable Wolfenden, who had attended the scene of the accident. He read out to the investigator the notebook statement of the insured driver (a copy of such notebook is included in the Police brief to the Coroner which is before me). The statement reads:
“I started work at 8:00pm on 30/10/21 in Goulburn. I drove a Western truck full of logs to Tumut. I unloaded at Tumut at 11:00pm and returned Northbound. At 2:00am to fifteen on 21/10/21 I was driving Northbound on the Hume Highway, Yass. I was in the left hand lane going about eighty five K’s. There was no vehicles in front of me or behind me. I suddenly saw a white figure which was tall. I can’t be sure if it was a person or an animal. I noticed it was jumping or running around, jumped out f the bushes to my right. I hit it on the right side of my front. I broke heavy and ran back to the road. I met a person who in the Mundoonan Rest Area who gave me a lift to the Hume Highway and I approached a Police Officer who was already at the scene…”

Statement of Mr Bruce Preston (insured driver) dated 31 October 2021

This statement is in the form a record of interview with NSW Police – Senior Constable Follington and Senior Constable Lord – with the insured driver.
It was taken on the day of the motor accident at approximately 1pm, with the accident occurring at approximately 2.10am.
The insured driver explained that he was driving a 19m B double logging trailer. He had taken a load of logs from Goulburn to Tumut the evening of the accident. After the logs were unloaded he commenced his journey back to Goulburn, departing Tumut around 11.30pm on 30 October 2021.
When describing the incident, the insured driver’s account included the following:
“…approximately around the 2 o’clock or a little after, somewhere in that vicinity, I was in the left hand lane. I had the cruise control on the, on the truck set. I was doing approximately between eighty five and ninety kilometres an hour. Um, I was driving along and I went past ….Mondoonan Rest Area. I looked to my left as I always do, you look to see what trucks are in the rest area. I drove past and I started to approach a big sweeping left hand, left hand sort of a, a bend in the highway. Um, all of a sudden um, I don’t know exactly where it was, it w…it was approximately ah, opposite or just past where the rest area is on the left hand side, ah, all of a sudden something came out from my right hand side. I was in the left hand lane. Something flashed out across the highway ah, and struck the right hand side of, the right hand front of my, of my vehicle where the headlight is. I initially thought that it was a kangaroo. ‘Cause I had seen nothing else. Um, Its just, it, it was a split second, it came out, it was tall, it was pale and it, as you see sometimes, the kangaroos, they leap up, I thought I’d hit a kangaroo. I braked heavily. Um, I was unloaded so braking heavily in a big vehicle like that, you, you tend to skid a lot. Um, I braked heavily. I went past ah, and I stopped. But where I stopped was very unsafe. ‘Cause it was on a, on a gradient and it was where the other ah, road rejoined the highway from the rest area. So, I drove, I, I moved forward about a hundred metres to an area where I could get off the road. I pulled the vehicle over. I applied my hazard lights. I got out and I got my um, triangles out and I positioned the triangles in front and behind my vehicle. I then got a torch out and I went and I had a look around my vehicle to see what, what damage had been done to my vehicle. The only damage that I could, I could see was that my front right headlight had been knocked out of the, of its mounting and was dangling down in front of the, of the vehicle. I looked under the vehicle to see if there was a, a carcass of a kangaroo or anything jammed up under the vehicle and there was nothing. As well as the headlight being out, all the chrome mounting around the headlight was all gone as well…”
The insured goes on to explain that he left the vehicle to go an inspect the roadway on foot to “drag” the kangaroo off the road and perhaps find his chrome mountings. He came across a man that was camped at the rest area, who offered to drive him up the road to inspect. The insured stated he said: “..I said I have hit something, I said I don’t know what I have hit, I said but I need to go back and have a look.”
At this point sirens are heard and flashing lights are seen by the insured driver. They then proceeded to drive up and came across a line of trucks stopped on the road just before a turnaround section in the highway. A police officer was directing traffic and the insured driver got out of the vehicle to speak to the officer. He explained to the officer that he thought that he was involved in whatever was going on there but was not involved in a “motor vehicle accident” but he had hit something that was on the road. The police officer explained there had been an accident with a truck and a car and the insured driver states he said: “…well I haven’t, I haven’t seen a truck or a car…”
The insured driver explains he was taken to Yass Hospital for a blood sample to be taken.
At around this point in the interview the insured is asked about the “object” he hit. He was asked how far he thought he was from it when he first saw it and he explained that it “flashed out the side at me.”
He described the object as being light coloured and very similar to a big grey kangaroo when standing up.
The insured driver denied seeing any truck on the median strip at any stage and did not see any cars “in the middle of the road” at any stage.
The insured states that his lights were on low beam because they are “halogen L…LED lighting” and explained that having them on high beam means you are constantly going up and down because of the traffic coming towards you.
He states that he estimates his speed at 80 to 90 kmph. He also estimates being able to see at least 2 lengths of his truck ahead, but not three clearly.
The insured was asked whether the braking left tyre marks. He explained that he is sure that there would be marks because he hit the brakes hard and he could “smell it”.
The insured also makes mention of there being a large amount of kangaroo carcasses on the highway and he described it looking like “absolute carnage.” He explains that that is why he initially thought he had hit a kangaroo.
The insured was asked whether he noticed any skid marks indicating a prior accident when on the roadway and the insured stated that he “wasn’t looking for it..” and nothing stood out.
He was asked whether there was anything he could have done to avoid the collision and he replied: “No Sir. It happened in the blink of an eye.” He goes on to state: “It happened, it, it, oh, I mean it was, it was, it was…I’m driving along, I look, and ah, and all of a sudden, bang, what was…where did that come from?”
He also confirms looking in his mirror after the impact and did not see anything on the roadway.

Statement of Senior Constable Follington dated 11 March 2022

This is a NSW Police Force statement. Senior Constable Follington is of the Metropolitan Crash Investigation Unit.
He was called to the scene of the accident. On arrival he noted the roadway and the side vegetation to be completely dry. He noted there to be no street lighting in the immediate area.
He located the vehicle the deceased was travelling in within the northbound lanes across lane 2 of 2, with the front end of the vehicle out of the lane and partially onto the median strip. The damage was consistent with a significant head on collision.
He located the truck involved in the preceding collision. He states it was travelling north when involved in the accident, and was located within the median strip with a trailer attached.
He states the headlight was on and the hazards were also flashing.
Senior Constable Follington examined the insured vehicle. He described the damage to be a hanging front offside headlight. When looking over the vehicle he did locate what appeared to be body matter, body tissue and blood. He also found a piece of fibreglass body had broken away, and was within the cabin area of the truck.
From his observations, the officer determined the vehicle had been involved in a “glancing type” of collision along the offside/driver’s side of the vehicle with a pedestrian.
The officer located the deceased on the north bound side of the road on the dirt verge for the median strip, approximately one metre from the edge of lane two.
Senior Constable Follington concluded that the injury and damage is consistent with the deceased walking out from behind the vehicle he had been travelling in into the insured vehicle’s view from right to left. He states:
“Taking into account the short time the deceased was viewable and the location he was hit, it would be likely he was not in view for very long and considering the blind spots within the heavy vehicle. The ability to see the deceased was extremely unlikely.”
The officer formed the opinion that Mr Strahan’s vehicle was not able to be seen due to its positioning. At the time of his attendance there was no lights emitting from the vehicle. He then states from paragraph 60:
“As that vehicle was not able to be seen, the absence of any street lighting due to the remoteness, did not give the ability for PRESTON to see either the vehicle YLC-04M or the deceased.
The deceased has come out from behind the vehicle and the impact has been a glancing impact which is clearly illustrated in the damage to heavy vehicle XN-10_QQ.
The cause for the first collision is STRAHAN being the driver at the time the vehicle was driving on the incorrect side of the road and cause for the second collision in my opinion is CROWE as he stepped out into a live traffic lane, in a dark section of the road.”

Coroner’s report on dispensing with an inquest dated 31 October 2021 (Coroner Geraldine Beattie LCM)

The report is three pages in length, two of which contain the summary of the circumstances surrounding the subject accident. The summary is consistent with the statements summarised above.
In respect of the impact between the insured vehicle and the deceased, the coroner’s summary is very much consistent with the statement of Senior Constable Follington. However, particularly relevant to the issues between the parties, the Coroner has added the following comment:
“it is apparent that Mr Crowe had exited the front passenger seat after Mr Strahan collided with Mr Singh’s truck, and appears to have been trying to flag down Mr Preston’s truck for assistance.”

Collision Reconstruction Report – Mr Nigel McDonald dated 8 June 2023

The report is relied upon by the insurer. Mr McDonald was briefed with a set of facts that includes the deceased going to flag down the insured. Mr McDonald noted that he was unaware of what facts indicate same, however, has regardless adopted the insurer’s description of the accident as facts.
The report includes a copy of a NSW police image that demonstrates the truck involved in the first collision resting in the vegetation of median strip ahead of the accident scene. The image also depicts Mr Strahan’s vehicle resting partially on the dirt verge and across the lane.
Mr McDonald attended the site of the accident. He describes the roadway as each lane being 3.5m in width, a 2m wide sealed shoulder on the western side of the road and a 1m wide sealed shoulder on the eastern side.
He noted sightlines to be good, with adjacent land being mostly uncleared native bushland. No street lighting was noted in the vicinity.
Mr McDonald noted that approximately 600m north of the subject scene, is a T junction and median crossover for Rock Lodge Road and an adjacent rest area. It is noted that otherwise the road is generally free of any cross or entering traffic for an extended distance and has no pedestrian traffic generators.
Mr McDonald noted a gouge across the northbound lane two, and he concluded that such gouge coincided with where Mr Strahan’s vehicle is shown at rest in the abovementioned police image.
The position of the deceased is analysed by Mr McDonald, who noted the evidence demonstrates the insured vehicle was travelling centrally within lane 1 of the highway at the time of the impact (based on the tyre marks). Mr McDonald concludes that the deceased torso was not ahead of the vehicle at the time of the impact, given that he was projected to the side at an angle.
It is concluded by Mr McDonald, that the insured driver’s stated speed (between 85 and
90 kmph with cruise control on) cannot be confirmed or refuted from the evidence.
In respect of the perception and response time of the insured driver, Mr McDonald formulates that Mr Strahan’s vehicle could not be expected to provide a visual prompt that a hazard was present, even as the insured’s lights illuminated it. In this regard, he makes the following observations in respect of Mr Strahan’s vehicle:
“The Mazda was positioned perpendicular to the northbound lanes so that reflectors fitted to the rear of the vehicle would not have been effective for northbound traffic. The Mazda was a dull colour so that it would have been of poor contrast to the background of median planting, and the damage to the offside of the Mazda would have a pattern different to what would normally be encountered and therefore difficult to recognise.”
He further states that the visual background was dull and irregular so that the Mazda would likely blend with its visual surrounds in the darkness.
Mr McDonald then states that in the absence of Mr Strahan’s vehicle or the other truck acting as a trigger, the insured had to rely upon seeing the deceased. He states: “the ability to see the deceased was limited by the effective range of the Western Star’s headlights, and how long the deceased was visible if it is assumed he appeared from behind the Mazda.”
He notes that headlights are angled down, so that objects at the road level are illuminated first. Noting the deceased was wearing grey track pants, they would have been illuminated first. Based on research, Mr McDonald notes that using low beam head lights, darker grey objects have a recognition distance typically of around 27m. However, he notes that such research includes an assumption that the object is recognisable, and if something is out of context, it may be recognised at a later time or not at all. As such, his recognition distance is likely to be an overestimate.
Utilising the software, based on the aforementioned research, Mr McDonald states that at 85 to 90 kmph a vehicle travels 27m in 1.1 seconds. Further, he estimates the deceased moved around 1.8m from where he had been concealed by Mr Strahan’s vehicle to where he was struck by the insured vehicle. At a walking pace, the distance would be traversed in 1.2 seconds and less for a jogging or running pace.
Accordingly, it is concluded that the insured driver could not have been expected to have any longer than 1.1 to 1.2 seconds to perceive and respond to the deceased’s presence and movement.
Mr McDonald further notes that any further time would have resulted in a full impact with the vehicle, the insured would have needed to slow below 25 to 45 kmph for the outcome to be any different.
It is further stated by Mr McDonald that if the insured driver had high beams on, it may be that the insured could have identified and recognised the presence of the Mazda across part of lane 2. However, irrespective of whether high or low beam was selected, it would not have changed the time the deceased was likely visible to the insured and therefore the likely time he had to take evasive action. He further states:
“Had the insured observed the Mazda and slowed, he would still have needed to slow to below the 25 to 45km/h speed range for the outcome to have been any different. To slow and pass the Mazda at a speed greater than 40km/h might not be unreasonable given the Mazda was not across the insured’s lane. To use common benchmarks, a speed of 40km/h is typical of circumstances where caution is warranted and vehicles will pass close to pedestrians that may be on the roadway and thinking of matters other than traffic safety, such as roadworks and school zones.”
Mr McDonald opines that if the insured had slowed before the impact, it is likely the deceased would have travelled into the path of the insured vehicle, leading to him being struck and propelled at the full speed of the vehicle.
Mr McDonald makes some comments and observations as to the cause of death, referencing the autopsy report. He concludes such comments by stating that if the cause of death is likely to be an issue of liability, then he recommends that appropriate medical expertise be sought.

SUBMISSIONS

The various submissions of the parties are briefly summarised below in chronological order.

Claimant’s submissions dated 21 December 2022

These submissions support the claimant’s application for internal review of the insurer’s decision.
The submissions rely on three grounds. However, it is noted that one of the grounds relates to a submission that the accident ought be regarded as a “no fault” accident under the MAI Act. However, it is later conceded by the claimant that such provisions do not apply to statutory benefits claims – I therefore have not considered any submission relating to “no fault” accidents.
In respect of the alleged primary liability of the insured driver, it is submitted that the evidence reveals the insured vehicle skidded for around 400m after the brakes were applied. Accordingly, it is submitted that for a vehicle to have skidded for almost half a kilometre, the insured “must” have been travelling well in excess of the speed limit when it collided with the deceased.
It is further submitted that the insured driver failed to keep a proper lookout. In this regard, it is submitted that the deceased had to have crossed the entire width of lane 2 before reaching lane 1 where the insured driver was travelling. With the insured in lane one of two of the northbound lanes, he would have illuminated the road with his lights, and it is submitted that the fact that he failed to see the deceased is consistent with him having failed to keep a proper lookout.
It is stated that the road was relatively flat and although it appears the accident occurred on a sweeping bend, a person crossing from the median strip would have been illuminated by the headlights as the deceased commenced to cross the second lane.
In addition, it is noted that the insured failed to see Mr Singh’s truck nor Mr Strahan’s car in the median strip, and accordingly this is consistent with him failing to keep a proper lookout as he “surely” would have seen the lights emitted on the median strip from Mr Singh’s truck.
The submissions note the factual finding in the Coroner’s report (page 2) that the deceased was struck from a “glancing” blow/impact from the truck. It is submitted that this is consistent with the deceased having been attempting to wave down the insured truck for assistance, rather than him actually running in front of the insured truck.
It is further submitted that the location of the deceased when found by Senior Constable Follington on the dirt verge approximately 1m from the edge of lane 2 is consistent with the insured truck having crossed into the second lane and colliding there with the deceased.
It is submitted that it is incorrect to suggest that Mr Crowe walked straight out from behind

Mr Strahan’s vehicle in front of the insured truck.
The claimant also relies upon an argument that no contributory negligence can be found in circumstances where the deceafsed was a “good Samaritan/rescuer”.
The submissions note the findings of the coroner that the deceased was acting as a good Samaritan at the time of the accident. It is submitted that he was endeavouring to summon assistance for Mr Strahan (who was still alive initially after the first motor accident) who required urgent medical assistance.
In making this submission the claimant relies upon the case of Blakeney v Clark [2013] NSWTC 144, that involved a plaintiff who suffered injuries when attempting to rescue a person from a vessel that had capsized. The defendant submitted that the procedure attempted was foolhardy. It was found that in order for such argument to stand it must be shown that the conduct amounted to a wholly unreasonable disregard for his own safety.
Noting the finding of the Coroner that the deceased was attempting to flag down a passing vehicle for assistance, it is submitted that consistent with the common law, there ought be no contributory negligence found on the part of the late Mr Crowe.
The claimant also relies upon the case of Hooper v Citywide Service Solutions [2002] VSC 239 that the courts are reluctant to making findings of contributory negligence if the victim finds themselves in an emergency situation and acts instinctively and in the interests of protecting others.
The claimant also relies upon the “good Samaritan” provisions of the CL Act.
It is submitted that pursuant to s 57 of the CL Act a good Samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good Samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

Claimant’s submissions dated 6 February 2023

These submissions largely adopt the earlier submissions that were relied upon by the claimant in seeking an internal review from the insurer.
The submissions state that once found that the deceased was a “good Samaritan”, there is no necessity to make any further determination in connection with the issue of liability of the insured driver. However, for completeness submissions are made in respect of the liability of the insured.
The arguments referred to above in the submissions of the claimant dated

21 December 2022 are adopted.
The submissions refer to the insured acknowledging that he saw the claimant prior to impact. It is noted that the insured thought the claimant was a kangaroo. It is submitted that the insured has not stated that he immediately applied the brakes of his vehicle when he saw the deceased. The submissions state “…far from being a kangaroo, the late Mr Crowe was in fact likely to have been jumping on the spot and waving his arms in an attempt to gain the attention of Mr Preston…”
The claimant submits that the insurer has failed to satisfy the onus of alleging the claimant was contributory negligent to a percentage greater than 61%.
It is submitted that the deceased was not acting to his own benefit in entering the road; that he did not run across in front of the path of the truck; instead it was a glancing blow that propelled him back; and the deceased had crossed half way across the road before being struck by the insured truck which had not even slowed down or swerved to miss hitting him.

Insurer’s submissions dated 20 February 2023

In respect of the “good Samaritan” issue, the insurer submits that the relevant provisions of the CL Act do not apply to statutory benefits claims and claims for damages.
Alternatively, it is submitted that even if Part 8 of the CL Act did apply, it would not have application to the circumstances of this dispute.
In this regard, it is submitted that s 57 provides protection to a good Samaritan against “civil liability” of their act or omission. It is submitted that the dispute does not involve any consideration of the deceased’s civil liability to another person.
In respect of the issue of wholly or mostly at fault, the insurer submits that an assessment must be made of the relative culpability of each party. In doing so, no weight may be given to the potential of the insured vehicle to cause greater damage to a pedestrian. Rather, the “correct test is to compare the relative carelessness of each of the parties.” In this regard, the findings of Basten JA in the case of Boral Bricks Pty Ltd v Cosmidis (no 2) [2014] NSWCA 139. Essentially, it is submitted that the “presence of a lethal weapon cuts both ways.”
Also relied upon is the case of T and X Company Pty Ltd v Chivas (2014) 67 MVR 297 (Chivas), where Basten JA made a finding of 75% contributory negligence in a case where a claimant ran across the road in disobedience of traffic signals and was run down and killed by a taxi.
The insurer submits that the deceased was “vastly” more careless than the insured driver on the following bases:
(a)    on the balance of probabilities, the deceased was a willing passenger in a vehicle driven by Mr Strahan;
(b)    Mr Strahan had been driving dangerously for at least an hour before the accident;
(c)    blood tests showed Mr Strahan was under the influence of illicit substances, and
(d)    28g of cannabis was found in the vehicle.
The insurer submits that the above facts caused the head on collision with Mr Singh, which resulted in Mr Strahan being trapped in the vehicle. Further, that the deceased did not take steps to curb the dangerous driving of Mr Strahan. As a result, after the collision, the deceased decided to run onto the Hume Highway, in the dark, when it was unsafe to do so.
It is submitted that in contrast, the insured “want of care” was minimal and amounted to a momentary lapse given that he:
(a)    was travelling at 85 to 90 kmph in a 110 kmph zone;
(b)    hit is brakes as soon as he saw the deceased, and
(c)    did the best he could to avoid a collision in the emergency circumstances created by the deceased.
Accordingly, it is submitted that the deceased was wholly or mostly at fault.

Claimant’s submissions dated 22 February 2023

The claimant refutes the suggestion that Part 8 of the CL Act does not apply to statutory benefits claims under the MAI Act.
The claimant submits that the insurer’s statement that the dispute does not involve any consideration of the deceased’s civil liability to another person is incorrect. The submissions state:
“Indeed, it is contrary to the matters raised in the…insurer’s own submissions – namely, that the test in determining liability for statutory benefits is to compare the relative fault of each of the parties. That of itself involves a consideration of the deceased’s ‘civil liabilit’.”
It is asserted that the CL Act specifically includes ‘contributory negligence’ within “civil liability.”
It is submitted that by virtue of the good Samaritan provisions of the CL Act, the legislation has negated any finding of culpability of the deceased.
It is submitted that even if it is determined that the CL Act does not apply to statutory benefits claims, there still exists the common law protection that is afforded to good Samaritans.

Insurer’s submissions dated 8 March 2023

The submissions state that the Coroner’s view that the deceased was likely intending to try and wave down approaching traffic, is mere speculation. It is submitted that was indeed the deceased’s intention, then there would be “…absolutely no reason for the deceased to have left the median strip or at least part of the land adjacent to the median strip and there was no reason for him to step in front of the insured vehicle.”
It is submitted that the known facts do not permit a finding that the deceased was attempting to wave down assistance.
The insurer submits that on any assessment of the known facts of the accident, leading to the death of the deceased, the deceased’s level of contributory negligence well exceeds 61% as set out in s 3.11(2) of the MAI Act.
In making this submission, the insurer refers to it’s earlier submissions that referred to the case of Chivas and submits that the facts of the present dispute speak to a higher degree of fault on the part of the deceased (ie. higher than 75% contributory negligence).
In making this submission, the insurer refers to the fact that he was on a dark section of road, and if his intent was to flag for assistance, he should have either stayed on the median strip or, if safe to do so, slightly encroached onto lane 2 adjacent to the median strip, so that he could be seen by approaching traffic.
On the issue the good Samaritan provisions of the CL Act, the insurer submits that if they did apply, the provisions would not assist the claimant. In this regard, the insurer refers to the case of Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, in submitting that the subject provisions are irrelevant insofar as it only applies to a good Samaritan to avoid “any personal civil liability.” The insurer goes on to submit:
“…Here it is not alleged that the deceased was or might have been incurring any civil liability. He is not being sued. He is the plaintiff and it is suggested that the characterisation of contributory negligence as ‘personal civil liability’ is simply misconceived.”
The insurer goes on to formally submit that the good Samaritan provisions of the CL Act do not apply to statutory benefits claims under the MAI Act. However, noting s 3B of the CL Act excludes civil liability to which Part 4 of the MAI Act applies, and that the current dispute does not come within Part 4 of the MAIA, the insurer concedes that the provisions of the CL Act “probably do apply to the provision of statutory benefits.” Furthermore, the insurer concedes the content of sub-section 3B(2)(h) clarifies the position and therefore concedes that I would find that the good Samaritan provisions of the CL Act to apply to a determination under s3. 11 of the MAI Act.

Insurer’s submissions dated 15 June 2023

The insurer refers to the findings of traffic reconstruction expert of Nigel McDonald as set out in his report of 8 June 2023. It is submitted that the findings speak for themselves and submits that the deceased was wholly or mostly at fault as he entered the roadway in such a manner he was only visible to the insured for 1.2 seconds.
Further, any action the insured could or should have taken would not have prevented the accident.

Claimant’s submissions dated 23 June 2023

These submissions, in large part, respond to the report of Mr McDonald.
The claimant objects to the admissibility of the report. It is asserted that the report fails to be independent and instead Mr McDonald’s report is unfair and unbalanced, and he acts as an advocate for the insurer.
For example, it is noted that Mr McDonald recommends that the insurer “seek appropriate medical expertise” at paragraph 5.61, and in doing so removed himself as an independent expert and instead an advocate/advisor to the insurer.
The submissions also refer to Mr McDonald’s comments regarding the coroner’s findings on cause of death. It is alleged that Mr McDonald has misstated the facts.
It is also submitted that Mr McDonald has relied on incorrect assumptions because the diagram on page 19 of the report depicts the deceased as walking across the path of the insured vehicle, when the insured driver references the deceased as having jumped out the bushes.
It is submitted that the Coroner made a finding that the deceased was attempting to get the attention of the insured driver, and Mr McDonald’s failure to acknowledge such matters, and to suggest a contrary position, amounts to a failure to provide an independent expert report.
It is submitted that Mr McDonald’s report fails to include important data, specifically around the time and distance that Mr Strahan’s vehicle would have been illuminated by the headlights. It is suggested that this is an important consideration because:
“…it is reasonable to suspect that a motorist coming across a vehicle – that was stationary, across almost an entire lane of an entire highway, and perpendicular to oncoming traffic – would have slowed down as soon as he saw that vehicle, in order to ascertain if any assistance needed to be rendered to any occupant of that vehicle.”
It is also suggested that Mr McDonald’s estimate of 1.2 seconds is based on an assumption that the deceased was walking or running in a straight line, which is contrary to the insured’s description of the deceased “jumping around.” It is suggested therefore the deceased was not moving in a straight line and therefore would have taken longer to cross the road than what is estimated by Mr McDonald.
The claimant’s submissions also take issue with paragraph 5.54 of the report of

Mr McDonald wherein it is essentially concluded that if the insured had slowed down prior to the impact the deceased would have been in the path of the vehicle and would have been propelled at the full speed of the vehicle. It is firstly submitted that the suggestion is perverse given the death that occurred. Secondly it is submitted that the conclusion is based on an assumption that the deceased intended to cross the entire road. However, it is submitted that “clearly was not the situation” given that the deceased was attempting to hail down the truck.
It is further submitted that the “glancing blow” is consistent with a momentary inadvertence of straying into the near side lane while attempting to hail down the vehicle.
Next, the submissions refer to paragraph 5.51 of Mr McDonald’s report wherein it is stated that had the insured observed the Mazda and slowed, he would have needed to slow below 25 to 45kmph for the outcome to have been any different. It is submitted that Mr McDonald has failed to address whether it was impossible for Mr Preston to have slowed to such range. Further, had he slowed after seeing the Mazda, his speed would have been less when noticing the deceased and he could have taken further evasive action including slowing further.
It is submitted that Mr McDonald’s findings on braking distance are speculative given that the actual tyre mark lengths at the scene are unknown. In addition, Mr McDonald failed to include the details of the insured statement in the report regarding the estimated skidding distance of 400m. Further, it is asserted the Mr McDonald stated he was uncertain whether the brakes were applied before, during or after impact. It is asserted that because the evidence is clear that it was after, and as such the failure to include these details in the report provides a further ground to refuse to admit the report.
The submissions go on to suggest that the legislative framework is such that the dispute is not concerned with whether or not the motor accident was caused by the insured.
As to the issue of whether the deceased is at fault, the submissions repeat the previous arguments raised in respect of “good Samaritan” from both a CL Act and common law perspective. In this regard, it is submitted: “As the late Mr Crowe Jnr is afforded the protection of being a ‘Good Samaritan’”, no fault will be ascribed to him. As such, the claimant will continue to be entitled to statutory benefits.
In the alternative, and on the basis that it is found that protection of “good Samaritan”, then it is necessary to consider whether the deceased was mostly at fault, as defined (more than 61%).
It is submitted that the insured failed to keep a proper lookout and that because the insured had to have passed the Mazda stationary in lane 2, his failure to see the vehicle is consistent with a failure to keep a proper lookout.
It is further submitted that the insured driver ought to have had his “high beam” lights on at the time. Had he had done so then he would have seen both the Mazda and deceased earlier than he did.
It is submitted that the insured was negligent and that his fault is considerably higher than any fault of the deceased. It is submitted that any contributory negligence would certainly be no higher than 50%.

FINDINGS AND REASONS

Do the Good Samaritan provisions apply?

There appears to be no dispute between the parties that Part 8 of the CL Act apply to statutory benefits of the MAI Act, noting the content of the insurer’s submissions dated

8 March 2023. The insurer formally submits that the provisions do not apply, however, concedes that I would find that the provisions do apply to a determination under s 3.11 of the MAI Act. I agree with the insurer’s stated rationale as set out in their submissions.

Does the claimant have the benefit of the Good Samaritan provisions?

I do not find in favour of the claimant on this point. My reasons are two fold. Firstly, on the evidence before me I do not consider it open to me to make a finding that the deceased was acting as a “Good Samaritan” at the time of the accident.
Whilst the Coroner concluded that the deceased “appeared” to be trying to flag down the insured truck for assistance, I agree with the submission of the insurer that this is mere speculation. There is no evidence that substantiates such an assumption. There could have been a number of reasons why the deceased entered the insured’s lane. Whilst it is a possibility that the deceased was trying to flag down the insured, there are a number of other possibilities as to why he traversed in front of the insured truck, including him being disorientated following the initial collision. I do not consider there is evidence before me to be sufficiently satisfied that the possibility of him attempting to flag down the insured truck was the most likely scenario.
Secondly, I do not consider Part 8 of the CL Act, or the common law principles of “Good Samaritan”, apply to this dispute. In simple terms, I consider the Good Samaritan provisions of the CL Act are a defence to an action, rather than a cause of action.
Section 57 of the CL Act provides as follows:
“(1) A good Samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good Samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
(2) This section does not affect the vicarious liability of any other person for the acts or omissions of the good Samaritan.”
In my view, this is not a matter where the deceased was or might have been incurring any civil liability. I do not agree with the claimant’s submissions that would suggest that civil liability is synonymous to contributory negligence. There is no liability to any other person when considering contributory negligence.
Furthermore, as has been pointed out by the insurer, there is authority that establishes that part 8 of the CL Act does not operate in the way suggested by the claimant. In this regard, in Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, Basten and Gleeson JJA said:
“There was also some confusion in the Court below as to the operation of the so called ‘Good Samaritan’ provisions in Part 8 of the Civil Liability Act. Section 57 provides immunity from civil liability for one who ‘comes to the assistance of a person who is apparently injured or at risk of being injured’. …the reference to Good Samaritan appeared in a somewhat inarticulate paragraph in the Statement of Claim alleging a particular breach of duty insofar as the defendant advised Mr Moore to dive down to alert the plaintiff of his, Mr Moore’s, difficulties, thus placing him at risk of injury ‘for which events the plaintiff would be found to act as a Good Samaritan and/or otherwise come to his aid’. The Trial Judge noted submissions that the plaintiff may have been a Good Samaritan in getting Mr Moore out of the water and on board the vessel following the dive, but that ‘the plaintiff ceased to be a Good Samaritan thereafter’. These submissions should have been dismissed as incoherent. Nobody had sued the plaintiff; it is the defendant who obtains immunity from liability for acting as a ‘Good Samaritan’. So far as the plaintiff was concerned, the provisions in Part 8 of the Civil Liability Act were simply irrelevant.”
Having found against the claimant’s submissions in respect of the deceased being a “Good Samaritan”, it is therefore necessary to make a finding as to whether the deceased was mostly at fault.

Was the deceased mostly at fault

The claimant submits that the insured vehicle was travelling well in excess of the speed limit due to him having skidded for 400m. That is not an assumption that I can accept in the absence of any expert evidence. I note Mr McDonald’s conclusion that the insured driver’s self reported speed can not be refuted or confirmed on the evidence. I accept this as being the case. Accordingly, I do not make a finding that the insured driver was travelling at an excessive speed leading up to the motor accident.
It is also submitted on behalf of the claimant that the insured was not keeping a proper lookout. In this regard, it is submitted that the insured ought to have seen the deceased, noting that he had travelled across lane 2 and into lane 1.
In addition, it is submitted that the insured was not keeping a proper lookout because he failed to notice Mr Strahan’s vehicle and the truck involved in the first collision.
I accept the conclusion of Mr McDonald that the other truck’s position at the relevant time was not visible. In this regard, I noted that it was located ahead and within the vegetation of the median strip.
However, Mr Strahan’s vehicle, from the evidence was positioned sideways within lane 2 and partly on the dirt verge of the median strip. Whilst it cannot be established with certainty on the evidence, I am sufficiently satisfied that it is more than likely that the motor accident occurred at or around the section of the roadway where Mr Strahan’s vehicle was positioned.
I accept the opinion of Mr McDonald that Mr Strahan’s vehicle would not have been a visual prompt that a hazard was present, noting that it was positioned perpendicular on the roadway and was dull in colour, accordingly the reflectors were not positioned to vehicles travelling on the roadway. Obviously, the accident happened in the dark of the night and there was no street lighting. I also accept on the evidence that the lights of Mr Strahan’s vehicle were not illuminated at the relevant time.
I accept the rationale of Mr McDonald that without the other truck and Mr Strahan’s vehicle acting as a trigger, the issue that remains is whether the insured driver ought to have seen the deceased and have taken evasive action.
I accept Mr McDonald’s analysis of perception time on the evidence. In particular, I accept the conclusion that the insured driver would not have had any more than 1.1 to 1.2 seconds to perceive and respond to the deceased’s presence.
There is an issue as to whether the accident could have been avoided if the insured vehicle had his high beams illuminated at the relevant time. Primarily, I make a finding that it was reasonable for the insured driver to have his low beam’s on at the relevant time. In this regard, I accept his reasons as given to police that otherwise he was constantly having to turn them off and on in light of traffic travelling in the opposite direction.
Furthermore, I accept the conclusion of Mr McDonald that it is unlikely that the accident would have been avoided if the high beams were illuminated on the insured truck, and instead the deceased was likely to have traversed to the front of the truck, well within lane 1 causing a front on collision.
I do not accept the claimant’s objection to the report of Mr McDonald on the basis that he is not independent. The reference to Mr McDonald suggesting the insurer seek medical expertise on the issue of cause of death, should it be an issue, does not to my mind negate his independence. On my reading, it was simply to convey that he does not hold the relevant expertise to comment on such matters, and if it is a relevant consideration then medical expertise should be sought.
I also do not accept the suggestion that Mr McDonald not considering the Coroner’s finding that the deceased was trying to flag down the insured, amounts to him not being an independent expert. As I have found above, the Coroner’s comment on such issue is merely speculation and the finding was made in the absence of any material evidence.
I do accept the submission that Mr McDonald’s report is lacking in important detail, in that it does not include an analysis as to what distance, or if, Mr Strahan’s vehicle ought to have been visible by the insured driver if he had the high beam’s illuminated. In any event, I have made a finding that it was not unreasonable for the insured driver to not have his high beam’s on at the time.
It is my finding that the proximate cause of the motor accident was that the deceased entered the path of the insured truck. He did so in the middle of the night, in darkness, on the Hume Highway. On the evidence, I accept that the insured could not have reasonably avoided the accident. I accept that the insured noticed the deceased (although did not recognise him as a person at the time) only just prior to the accident, such that he had no chance of taking evasive action prior to the impact.
In the absence of the evidence of Mr McDonald, I maintain my finding that the insured driver had no reasonable opportunity to avoid the accident. The presence of a person on the roadway, being a highway with no access points at the site, could not have been reasonably expected. The insured was driving a heavy vehicle and I accept that he would not have had a reasonable opportunity to slow the vehicle in order to avoid the accident, even if the deceased was perceived prior to impact. I accept the insured’s evidence that the figure on the roadway was sudden and unexpected and he had no opportunity to react to avoid the impact.
Furthermore, if it were the case that it was unreasonable for the insured driver to not have his high beam lights activated leading up to the accident and he was able to perceive the presence of Mr Strahan’s vehicle and/or the deceased on the roadway, I maintain my finding that the proximate cause of the accident is the fact that the deceased entered the roadway in the path of an oncoming heavy vehicle without proper regard for his own safety. Any liability of the insured in such circumstances, in my opinion, would be no more than 25%.
Accordingly, I find the deceased to have been mostly at fault.

COSTS

As a regulated miscellaneous claims assessment matter under Schedule 1, cls (3)(2)(e) of the Motor Accident Injuries Regulation (the Regulation), legal costs may be awarded.
The claimant makes a claim for “exceptional circumstances” costs pursuant to s 8.10(4)(b) and AII Limited t/as GIO v Moon [2020] NSWSC.
Whilst I have found against the claimant, costs may still be awarded.
I note that the insurer has not addressed the claim for exceptional costs formally, however, there was a concession at a teleconference that the claim involves exceptional circumstances.
I accept that this dispute involves “exceptional circumstances” for the purposes of

s 8.10(4)(b) of the MAI Act. The dispute has involved issues that place it outside the realm of a usual dispute for the purposes of ss 3.11 and 3.28.
The claim involves complex factual and legal issues, which involved the gathering of voluminous evidence. At my instigation, further clarification was provided on the issues in dispute, necessitating further teleconferences, and I granted leave for an expert report to be obtained by the insurer. This in turn, required the claimant’s representatives to consider the evidence afresh in addition to the report of Mr McDonald and provide further submissions. Further, late in the piece I requested further submissions as to legislative framework.
I issued my decision with leave for the claimant to provide a detailed list of costs claimed within 28 days. That has been received. Also received has been submissions made on behalf the insurer in respect of the costs claimed.
The original claim was set out in a letter dated 24 October 2023. It totals an amount of $48,795.85 (incl. GST) comprising of:
(a)    Professional fees of RMB Lawyers:   $29,555.90
(b)    Sundries  $1,477.95
(c)    Disbursements:  $162.00
(d)    Counsel, Jeffrey Sewell  $17,600.00
I requested that a detailed itemised list of the professional fees be provided. This was subsequently received. The list itemises an extensive list of tasks undertaken since early November 2021, when the law firm received instructions to act on behalf of the claimant.
The insurer has provided submissions dated 13 November 2023. The insurer takes no issue with the invoice of Jeffrey Sewell, noting that the items listed by counsel all relate to the subject miscellaneous claims dispute.
In respect of the professional costs claimed, the insurer takes issue with the amount claimed. Firstly, because a large proportion of the items listed pre-date the subject miscellaneous claims dispute application. Of the remaining items, the insurer submits they include amounts that are solicitor/client costs and also items that relate to a common law damages claim.
After removing the items that predate the application, the insurer allows in their submissions 50% as relating to the subject dispute. The insurer deducts a further 10% on account of items that would amount of solicitor/client or indemnity costs. The insurer therefore submits that an award should include the Jeffrey Sewell invoice and an amount of $8,369 inclusive of GST for professional fees.
I have examined the list of items claimed. The majority of the tasks have been completed by Anne Barlow. Ms Barlow is a Partner of RMB Lawyers and was admitted to practice in 2009. The hourly rate listed is $500. The insurer has made no mention of the hourly rate claimed.
I agree with the insurer’s submissions that a large proportion of the items listed do not relate to the subject dispute and cannot be claimed. It is clear from both from what I have gleaned from the various teleconferences in this matter, and from the material before me in respect of costs, that Mr Sewell of counsel conducted the majority of the work required to represent the claimant in the subject dispute. A large amount of the items listed also do not directly relate to the subject dispute and much is to be considered as solicitor/client costs.

I agree with the insurer’s submission that those items that predate the lodgement of the dispute should not be allowed. It is to be noted that from the descriptions provided the work in preparing the application was performed by counsel. I also agree with the insurer’s method of deducting 50% on account of the work performed not being directly related to the subject dispute, and the 10% deduction for items that amount to solicitor/client costs.
However, I also do not accept that costs should be awarded at a rate of $500 per hour, particularly in light of the hourly rate allowed for in the Regulation for a common law damages claim. I consider an allowance of $350 per hour to be more appropriate.
I therefore allow professional costs of RMB Lawyers in the amount of $5,325.60 plus GST. I also allow the costs of Jeffrey Sewell of counsel in the amount claimed of $16,000 plus GST.
I do not make any allowance for sundries claimed. No specific items claimed are listed and the amount is simply claimed as a percentage of the professional fee. I consider that a sundry allowance is sufficiently provided for in the hourly rate allowed.

[2023] NSWPIC 508

27 September 2023