Duressa v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPIC 447
•29 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Duressa v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 447 |
| CLAIMANT: | Jemal Duressa |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 29 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether accident caused wholly or mostly by the fault of the claimant for the purposes of section 3.11 and section 3.28; accident occurred when the claimant entered roundabout and collided with a vehicle already in roundabout; whether the claimant looked to his right and saw other vehicle; AAI Limited t/as GIO v Evic discussed and applied; Sibley v Kais, Davis v Swift, and Ayre v Swan applied; Held – the claimant failed to bring his vehicle to a stop before entering the roundabout, failed to look to his right, and failed to see the other vehicle; accident was caused by the claimant’s failure to exercise reasonable care; no fault on the part of the other driver; claimant’s failure to exercise reasonable care did not constitute a worst possible case; accident not caused wholly by the claimant’s fault; contributory negligence assessed at 70%; accident caused mostly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 3. A statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
Jemal Duressa (claimant) was injured in a motor vehicle accident at Ingleburn on
14 March 2025 (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
On 28 March 2025 liability for the claim was admitted for 52 weeks from the date of the accident. On 2 June 2025 the insurer denied liability to pay statutory benefits after 52 weeks on the basis that the claimant was “wholly at fault for the incident and/or [his] injury”. This decision was made for the purposes of ss 3.11 and 3.28 of the MAI Act.
On 3 June 2025 the claimant sought an internal review of the insurer’s decision. On
24 June 2025 an internal reviewer affirmed the insurer’s decision to deny liability for the claim. The claimant subsequently commenced these proceedings in the Commission. He maintains that the accident was not caused wholly or mostly by his fault. The disputes under ss 3.11 and 3.28 are miscellaneous claims assessment matters: Sch 2 cl3 (d) and (e).
CASE MANAGEMENT
Preliminary conference
A preliminary conference was held on 23 July 2025. The scope of the dispute was discussed. The attention of the parties was drawn to AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic). The parties were given notice that, subject to the facts found, I considered it open to me to find that for the purposes of ss 3.11 and 3.28 of the MAI Act the accident was caused mostly by the fault of the claimant.
Directions were made for the provision of written submissions by the claimant and submissions in reply by the insurer. The insurer was directed to file a joint bundle that contained the documents relied on by the parties in the proceedings.
Claimant’s application to lodge an additional document
For the reasons given on 19 August 2025 the claimant was given leave under rule 67C(3) of the Personal Injury Commission Rules 2021 (Rules) to introduce his statement dated
6 August 2025 in the proceedings.
ON THE PAPERS
At the preliminary conference the insurer agreed the proceedings could be determined on the papers. The claimant subsequently confirmed in a message to the Commission that he also agreed to the proceedings being determined on the papers[1].
[1] Message to the Commission sent on 23 July 2025.
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
STATUTORY FRAMEWORK
An injured person is not entitled to statutory benefits more than 52 weeks after the motor accident concerned if the motor accident was caused wholly or mostly by the fault of the person: ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act.
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 s 3.38, was greater than 61%: ss 3.11(2) and 3.28(2) of the MAI Act.
Sections 3.11 and 3.28 are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident and are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents: AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic) at [57] . The words “wholly or mostly” do not require comparison of the acts of at least two parties[2].
[2] Evic at [67].
If a finding of contributory negligence is made in these proceedings, it is to be determined on the basis of what is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
The exercise to which s 3.38(3)(c) is directed, namely, assessing what is just and equitable in the circumstances of the case, is one that can be carried out in respect of the conduct of an owner driver in the context of a single vehicle accident.[3] It follows that the exercise can also be carried out in a case in which two or more vehicles are involved but only the claimant was “at fault”.
[3] Evic at [73].
The enacted law includes Div 8 of Pt 1A of the Civil Liability Act 2002 (CL Act). Section 5R(1) of the CL Act provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2)(a) provides that, for that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person.
The burden of proving the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded the accident was caused wholly or mostly by the fault of the claimant: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45], [55] and [67].
REVIEW OF THE EVIDENCE
The evidence relied on by the parties is contained in a joint bundle filed by the insurer on
22 August 2025. The evidence referred to by the parties in their submissions has been considered: rule 67D(2) the Rules.
The joint bundle contains an investigation report addressed to the insurer dated 23 April 2025. Much of the evidence relied on by the parties is contained in that report.
The claimant’s evidence
The Patient Care Record created by the Ambulance crew[4] that attended the accident scene is likely to contain the most contemporaneous version of the accident in the evidence before the Commission. Relevantly, the record states:
“C/T 66YOM LOW SPEED MVA – SEATBELT WORN, NIL CAB INTRUSION, NIL AIRBAGS DEPLOYED, TRAVELLING APPROX 20KM/HR…
…PT ABLE TO REMEMBER THE EVENT AND REPORTED HE WAS DRIVING THROUGH THE ROUND ABOUT AT APPROX 20KM/HR WHEN HE HAS T BONED ON COMING CAR THAT FAILED TO GIVE WAY…
…PT GCS 15 THROUGHOUT…”
[4] Hannah Ault and Sarah Morritt.
The investigator’s report contains a transcript of an interview that took place on 16 April 2025 between an investigator and Sergeant Bressington. The Sergeant attended the scene of the accident and obtained versions from both drivers involved. The transcript contains the following exchange:
“Q16 … did you take a – did you take a statement at all from the gentleman who was injured? And, as I understand it, went to the hospital? His name is Jemal Duressa?
A16 I’ve got a very basic version from him while he was getting in the ambulance.
Q17 Yeah. Could you tell me what he said?
A17 He stated that he was driving and went through the roundabout, and he agreed that he had not sited the vehicle on his right and failed to give way. So, the exact information – exact words that he used - - -
Q18 Yep.
A18 - - - I don’t have on me at the moment, but he said that – yeah – that he went through the roundabout. Didn’t see the other vehicle.
Q19 Yep. Okay. That’s a precis of what he said at the time?
A19 That’s a summary.”
The claimant was taken by ambulance to Campbelltown Hospital. The Emergency Department Discharge Referral contains the following version of the accident that I am satisfied was provided by the claimant:
“Stated he was driving car at low speed approx. 20km-30km/hour…T-boned another vehicle to R side while about to leave roundabout…”
The Application for personal injury benefits completed by the claimant on 19 March 2025 does not contain a description of the accident. It does, however, include a diagram that depicts the position of the two vehicles when the collision occurred. There is a note that records the claimant’s vehicle was damaged on the “right side.”
The claimant provided a signed statement dated 10 April 2025 to the investigators appointed by the insurer. The investigator’s report records the claimant was interviewed in his solicitor’s office with an Amharic interpreter and the interpreter has attested to being in the office of the claimant’s solicitor when they interpreted.
The claimant stated he left home 7-10 minutes before the accident and was on his way to Ingleburn. The weather conditions were fine and the road was dry. There were no street lights around the area where the accident occurred and it was dark. The claimant was familiar with the area. He went on to state:
“[22]…I was travelling at about 40kph as I approached the roundabout. There were two lanes of traffic on Macquarie Road and I was in the left-hand lane and there was another car to my right. I cant recall if I put my left-hand indicator on before the roundabout. I wanted to go onto the roundabout and then exit off the roundabout onto Cumberland Road.
[23]As there was another car to my right before I went onto the roundabout I didn’t look to my right before going into the roundabout, I didn’t stop at the roundabout but just drove into it about 30kph.
[24]The car to my right just sped very quickly onto the roundabout, I followed that car onto the roundabout and then I felt a bang to my driver’s side. I hadn’t seen that car before the impact.
[25]I was in shock and I can’t recall exactly now what happened but the car that hit me did so above my front panel over the wheel on the driver’s side of my car then spun to my left after that and I can’t recall if the car hit me again on the passenger side and both cars stopped there…”
The claimant’s statement dated 6 August 2025 records as follows:
“[3]I say that I wish to clarify that statements made at paragraphs 23 & 24 of my statement dated 5th April 2025.
[4]I say that I looked to the right before I entered the roundabout and I saw the insureds [sic] motor vehicle. I then entered roundabout and I saw the insureds [sic] motor vehicle about 5 to 10 metres away from my motor vehicle and I noticed that the insureds [sic] motor vehicle was speeding and accelerating at about 80 kilometres per hour.
[5]I refer to paragraphs 17… of the interview statement dated 16th April 2025 and I state that I did not say these words, accredited to me, by Constable Blessington.
[6]I refer to paragraphs 21 of Constable Blessington interview statement dated 16 April 2025 and I agree that I said these words, accredited to me, by Constable Blessington.”
At [7] the claimant records that his daughter read paragraphs 17 and 21 of “Constable Blessington interview statement dated 16th April 2025” as well as the statement “from the Amharic language to the English” before he signed the statement.
Mr Spindary’s evidence
The transcript of an interview between the investigator and Sergeant Bressington includes the following version of the accident provided by Mr Spindary to the Sergent at the scene:
“Q20 …. And also, can you kindly – did you speak to the other gentleman? Mr Spindary?
A20 Yes. I did.
Q21 Can you give me a precis, thanks, of what he said?
A21 He said that he was travelling straight through the roundabout, and he saw the other vehicle move into the intersection, colliding with the side of his vehicle, and then he spun around…”
Mr Spindary gave a statement dated 5 April 2025. The statement records that he was on his way home from Ingleburn Woolworths and had left about five minutes before the accident. He was familiar with the roadway. The street lights were “working” and the light was “ok”. His headlights were on low beam. His intention immediately prior to the accident was to exit the roundabout onto Kings Road and proceed to his home. He states:
“[23]Before I got to the roundabout, I was travelling at about 50 kph the speed limit on Macquarie Road is 60kph. I slowed down as I approached the roundabout and entered the roundabout at about 45 kph, I could see that there [sic] no vehicle to my right on the roundabout and there was no vehicle ahead of me on the roundabout.
[24]I went past the first exit which is a continuation of Macquarie Road and then after going past that exit, I could see that there were two vehicles one in each lane approaching the roundabout from the Macquarie Road exit. They were both stopped and I thought that as I had the right of way as I was already in the roundabout, I continued on the roundabout. I was about to exit the roundabout into Kings Road when I felt an impact to the passenger side of my vehicle. The impact spun my car about ninety degrees and it stopped still on the roundabout at then [sic] of Kings Road. There are no lane lines between the Macquarie Road entrance and Kings Road.
[25]My airbags did not deploy. I was in shock and panicked a bit and then I saw people come to the other car, a light blue Audi. I recognised that car as being the one that had been stopped on the Macquarie Road entrance to the roundabout in the lane closes [sic] to the footpath…”
Mr Spindary stated that the claimant’s vehicle had damage to the front and his vehicle had damage to the passenger side front and back doors.
Mr Spindary’s father provided the following description of the accident to the property damage insurer:
“My son was coming from Woolworths to come home, He was going to Kings Road and coming from Macquarie Road. Traffic/Road conditions was light, dry and night. He entered the roundabout from Macquarie Road and as he was about to exit to Kings Road the car coming from the left side, hit my car on the passenger side causing it to spin.”
I infer this description of the accident was based on an account provided by Mr Spindary to his father; it is consistent with other versions he has provided.
Photographs and diagrams
The investigator’s report contains photographs of the accident scene. The first set depicts the area during daylight[5]. The second set[6] of photographs are described as “in situ” photographs provided to the investigators by Mr Spindary.
[5] Photographs 1-7.
[6] Photographs 8-14.
In addition to the photographs in the investigator’s report, there are a set of photographs in the NRMA property damage records. These photographs depict the vehicle driven by Mr Spindary. A number of the photographs clearly show damage to the front and rear passenger side doors of the vehicle.
I have used the photographs to form a general impression of the location, the post-accident resting position of the two vehicles and the damage to the vehicles. I have otherwise reminded myself of the authorities that discuss the limitations of photographic evidence, and the caution that must be employed with respect to evidence of this kind.[7]
[7] See for example Angel v Hawkesbury City Council [2008] NSWCA 130, Blacktown City Council v Hocking [2008] NSWCA 144, and more recently Bondi Beach Foods Pty Ltd v Chadwick [2023] NSWCA 265.
On the basis of the photographs taken by Mr Spindary at the scene I am satisfied street lights in the vicinity of the roundabout were illuminated at the time of the accident.
As already recorded, the application for personal injury benefits includes a diagram of the accident. The investigator’s report also contains a sketch plan prepared by the investigator depicting the accident scene.
SUBMISSIONS
Claimant’s submissions
The claimant did not file any written submissions when he commenced these proceedings. In accordance with a direction made at the preliminary conference he subsequently filed written submissions dated 8 August 2025. The claimant’s submissions record that he relies on his statement dated 6 August 2025.
The claimant submits that Mr Spindary entered the roundabout “firstly” from the “Western entrance” and that the roundabout was “exceedingly large in diameter”.
In the claimant’s submission an inference should be drawn from Mr Spindary’s statement at [24] that he did not keep a proper lookout when he left the roundabout. He argues Mr Spindary increased his speed after entering the roundabout.
The submissions record that the claimant retracted his statement dated 5 April 2025 in so far as it records that he “did not look to [his] right before [he]entered the roundabout” and that he relies on his statement dated 6 August 2025. The claimant also refers to and relies on paragraphs [23] and [24] of his 10 April 2025 statement in support of his submission that he did look to his right before entering the roundabout.
The claimant argues that Sergeant Bressington’s[8] evidence in the transcript of interview that he stated at the scene “he had not sited the vehicle on his right”[9] is hearsay evidence.
[8] The submissions refer to “Constable Blessington”.
[9] Reply to question 17.
The claimant also submits the Sergeant’s answer to question 21 in the transcript that “he saw the other vehicle move into the…intersection, colliding with his side of his vehicle” is both a hearsay statement and inconsistent with the Sergeant’s earlier statement that the claimant told him “he had not sited the vehicle on his right”. This evidence from Sergeant Bressington should not, in the claimant’s submission, be relied on.
The submissions refer to “the Evic principle” and record the Commission is “only required to consider the extent of the contributory negligence of the claimant in the accident, without the need to assess any other party’s culpability.”
The claimant submits his “extent of contributory negligence is not more than 61%” and that he is “deemed not to be at fault” as his failure to keep a proper lookout when entering the roundabout was not “the substantial cause of the accident.”
Insurer’s submissions
The insurer’s written submissions dated 16 July 2025 address the scope of the matters in dispute, relevant background and evidence.
In the insurer’s submission, the version of events provided by the claimant and Mr Spindary are “overall consistent in nature”. The insurer submits the claimant entered the roundabout from Macquarie Road from the left-hand lane and intended to proceed straight to take the Cumberland Road exit on the roundabout.
In the insurer’s submission the evidence indicates Mr Spindary was already “established” in the roundabout prior to the collision, that the claimant entered the roundabout without checking to his right and without keeping a proper lookout for any vehicles already in the roundabout, and collided with the passenger side of Mr Spindary’s vehicle.
The insurer refers to Vairy v Wyong Shire Council [2005] HCA 34, 59 ALJR 492, and the duty of the driver of a motor vehicle to users of the roadway to take reasonable care for their safety having regard to all the circumstances of the case.
The insurer also refers to
Reg 114 (1) of the Road Rules 2014 (NSW) that provides a driver entering a roundabout must “give way” to any vehicle in the roundabout. It is submitted that for this rule, “give way” means the driver must slow down and, if necessary, stop to avoid a collision.The insurer submits the claimant breached his duty of care by failing to keep a proper lookout of, and failing to give way to, Mr Spindary’s vehicle, which was already in the roundabout, and that these failures resulted in the collision.
The insurer submits the accident was caused wholly by the fault of the claimant and that, consequently, he has no entitlement to weekly payments or treatment expenses pursuant to sections 3.11 and 3.28 of the MAI Act.
In further written submissions dated 15 August 2025 the insurer argues the claimant’s statement dated 6 August 2025 is inconsistent with the available evidence. The insurer submits the claimant’s earlier statement at [23] and [24] is consistent with the interview of Sergeant Bressington, consistent with the version of the accident given by Mr Spindary, and the version of the accident recorded in the Emergency Department discharge referral. Although not stated in terms, the import of the insurer’s submission in this regard is that the claimant’s 10 April 2025 statement should be preferred.
After referring to Evic, the insurer submits the claimant’s failure to keep a proper lookout and give way to Mr Spindary’s vehicle demonstrates a significant departure from the standard of care expected from the claimant in the circumstances. In the insurer’s submission a reasonably prudent driver in the position of the claimant ought to have been able to keep a proper lookout, give way to any vehicles already in the roundabout, and not enter the roundabout until it was safe to do so. Had the claimant taken reasonable care the accident would have been avoided.
The insurer repeats its earlier submission that the accident was caused wholly by the fault of the claimant and that consequently, he has no entitlement to weekly payments or treatment expenses pursuant to ss 3.11 and 3.28 of the MAI Act.
FINDINGS
I make the following findings:
(a) at approximately 9pm on 14 March 2025 the vehicle driven by Mr Spindary entered the roundabout at the intersection of Macquarie Road, Kings Road and Cumberland Road, Ingleburn (roundabout) from Macquarie Road travelling in an easterly direction;
(b) at the time of the accident the weather was fine and the road was dry;
(c) there were street lights illuminated in the vicinity of the roundabout;
(d) both the claimant’s vehicle and the vehicle driven by Mr Spindary had their headlights illuminated on low beam;
(e) it was Mr Spindary’s intention to exit the roundabout at Kings Road;
(f) Mr Spindary’s vehicle entered the roundabout before the claimant’s vehicle;
(g) Mr Spindary’s vehicle entered the roundabout travelling at approximately 45 km/h and passed the first of two exits on Macquarie Road;
(h) as he passed the first exit on Macquarie Road, Mr Spindary could see two vehicles, one in each lane, approaching the roundabout from the second Macquarie Road exit;
(i) the vehicle driven by the claimant was one of the two vehicles seen by Mr Spindary and was in the left-hand lane of two lanes on Macquarie Road. There was another vehicle next to the claimant’s vehicle in the right-hand lane;
(j) it was the claimant’s intention to exit the roundabout onto Cumberland Road;
(k) the claimant did not look to his right before entering the roundabout;
(l) the claimant did not stop before entering the roundabout and entered the roundabout at approximately 30 km/h;
(m) the claimant did not see the vehicle driven by Mr Spindary at any time before the collision;
(n) shortly after the claimant’s vehicle entered the roundabout the front driver’s side of the claimant’s vehicle collided with the passenger side of Mr Spindary’s vehicle at or about the front and rear passenger doors, and
(o) the speed of Mr Spindary’s vehicle at the time of the collision was approximately 45km/h.
Although a number of documents, including the application for personal injury benefits and the claimant’s statement dated 10 April 2025, record the accident occurred on 15 March 2025, I am satisfied the accident occurred on 14 March 2025; this is the date referred to in the Ambulance report, by Mr Spindary in his statement dated 5 April 2025, and by Sergeant Bressington in the transcript of interview[10].
[10] See exchange in the transcript of interview at Q1- Q3 and A1-A3.
With respect to whether the claimant looked right before entering the roundabout, I give weight to and prefer the evidence he gave in his statement dated 10 April 2025. The statement was given to the investigator at the offices of the claimant’s solicitor with aid of an Amharic interpreter and was made less than a month after the accident when his recollection was likely to have been fresher and more reliable than when he gave the statement dated 6 August 2025, some five months after the accident. Further, the version of events the claimant provided in his 10 April 2025 statement is consistent with the version he provided Sergeant Bressington at the accident scene.
The claimant’s reference to there being “another car to [his] right before [he] went onto the roundabout” at paragraph [23] of his 10 April 2025 statement is a reference to another vehicle traveling in the same direction as him on Macquarie Road and not a reference to Mr Spindary’s vehicle. The vehicle referred to in paragraph [24] of the statement is the same vehicle. Neither party argued the vehicle traveling in the lane next to the claimant played a causative role in the accident. That the claimant was aware of the vehicle in the right-hand lane does not support a finding that he looked to his right before entering the roundabout.
Further, if the vehicle to his right obscured the claimant’s ability to see traffic already in the roundabout to his right, a reasonable person in his position would have stopped his vehicle before entering the roundabout, waited until he had a clear line of vision before entering the roundabout, and entered the roundabout only when it was safe to do so.
Because I have found the claimant did not look to his right before he entered the roundabout and did not see Mr Spindary’s vehicle before the collision I do not give weight to his evidence that Mr Spindary’s vehicle was “speeding and accelerating at about 80 kilometres per hour.”[11]
[11] Claimant’s statement dated 6 August 2025 at [4].
I do not give weight to the claimant’s evidence that he did not say the words attributed to him by Sergeant Bressington at A17 in the transcript of interview between the Sergeant and the investigator. That account is consistent with the version provided by the claimant, with the aid of an interpreter, in his statement of 10 April 2025.
At [6] in his 6 August 2025 statement the claimant refers to the answer given by Sergeant Bressington at A21 in the transcript of interview and states: “I agree that I said these words, accredited to me, by Constable Blessington [sic].” This version of the accident was not, however, provided by the claimant to Sergeant Bressington but rather by Mr Spindary. That is made clear by what is recorded in Q20 and Q21 in the transcript:
“Q20 Yep. And also, can you kindly – did you speak to the other gentleman? Mr Spindary?
A20 Yes. I did.
Q21 Can you give me a precis, thanks, of what he said?
A21 He said that he was travelling straight through the roundabout, and he saw the other vehicle move into the intersection, colliding with the side of his vehicle, and then he spun around…”
The claimant’s statement that he “said these words” recorded at A21 casts significant doubt over the reliability of his 6 August 2025 statement.
DETERMINATION
Was the accident caused by the claimant’s failure to exercise reasonable care?
On the facts I have found a reasonable person in the claimant’s position would have:
(a) brought his vehicle to a stop before entering the roundabout;
(b) looked to his right before entering the roundabout;
(c) seen the vehicle driven by Mr Spindary;
(d) given way to the vehicle driven by Mr Spindary, and
(e) not entered the roundabout until Mr Spindary’s vehicle had passed and it was safe to do so.
The claimant failed to do any of these things. I am satisfied the accident was caused by his failure to exercise reasonable care. His failure to exercise reasonable care was a necessary condition of the occurrence of the accident. But for his failure to exercise reasonable care it is unlikely the accident would have occurred.
Was the accident caused by the insured driver’s failure to exercise reasonable care?
The claimant entered the roundabout when it was not safe to do so and did not give way to Mr Spindary, who was already in the roundabout to his right.
The "right hand rule" is not the be all and end all in relation to questions of civil responsibility. The obligation of each driver is to take reasonable care. What amounts to reasonable care is a question of fact: Sibley v Kais [1967] HCA 43; 118 CLR 424. A road user, taking reasonable care for the safety of other road users, must expect that not everyone will comply with the letter of the road rules. Nevertheless, a driver is entitled to expect that other drivers will take reasonable care for their own safety: Ayre v Swan [2019] NSWCA 202 Basten JA at [53].
Mr Spindary entered the roundabout first, was travelling within the speed limit and the headlights on his vehicle were illuminated. There was nothing to alert him to the possibility that the claimant could not see him and that the claimant would not give way to his vehicle. In these circumstances I find it was reasonable for Mr Spindary to proceed through the roundabout as he did. I am not satisfied the accident was caused by any failure on the part of Mr Spindary to exercise reasonable care. I am not satisfied a reasonable person in his position would have acted differently.
Was the accident caused wholly or mostly by the fault of the claimant?
The only driver at fault for the accident was the claimant. The inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence: Evic at [69]. I am required to assess his contributory negligence in accordance with s 3.38(3)(c) of the MAI Act: Evic at [73].
A finding of 100% contributory negligence is permitted: s 5S CL Act. Such a finding is reserved for conduct that constitutes “a worst possible case” of departure from the standard of care: Davis v Swift [2014] NSWCA 458 at [52] per Meagher JA (Leeming JA agreeing).
The claimant’s failure to stop before entering the roundabout and his failure to look to his right before entering the roundabout represent significant departures from the standard of care required in the circumstances. I am not, however, satisfied his conduct constitutes a worst possible case. I find the accident was not caused wholly by his fault.
When compared against what a reasonable person in his position should have done, I consider it just and equitable to assess the claimant’s contributory negligence at 70%. It follows from this finding that for the purposes of ss 3.11 and 3.28 of the MAI Act the accident was caused mostly by the fault of the claimant.
0
9
0