Ferrell v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 605
•6 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Ferrell v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 605 |
| Claimant: | Stephen Ferrell |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 6 October 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; denial of liability after 26 weeks on basis claimant wholly or mostly at fault; claimant rider of Harley Davidson motorcycle testing out new highway footpegs who lost control on corner and was ejected and collided with tree; insurer said claimant wholly at fault for failing to keep a proper lookout and looking down at his footpegs as he rounded a corner; Held – claimant travelling at 40 – 50 kms in a 60 km zone therefore speed not a factor; claimant looked down but only very briefly and this was reasonable; there was loose gravel on the road related to repairs and patches on the road; claimant lost control when his bike hit the loose gravel which he did not see in time; claimant not wholly at fault. |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. As the claimant is not legally represented, there is no order as to costs. |
STATEMENT OF REASONS
INTRODUCTION
On 9 February 2022, Stephen Ferrell (the claimant) was riding his Harley Davidson motor bike along the Forest Oak Road in the Corowa Dam area1 when he lost control of his bike, left the road and was injured.
On or about 1 March 2022, Mr Ferrell made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against NRMA, his own third-party insurer2. On 14 March 2022, NRMA accepted liability to pay benefits and did so for the first 26 weeks after the accident3.
On 15 July 2022 NRMA wrote to Mr Ferrell denying liability to pay any further benefits on the basis Mr Ferrell was “wholly at fault” for causing the accident4. Mr Ferrell sought an internal review of that decision and on 29 July 2022, NRMA’s internal reviewer affirmed the original decision5.
On 2 August 2022, Mr Ferrell commenced proceedings in the Personal Injury Commission (the Commission). The proceedings were allocated to me for assessment and I have held two teleconferences in this matter. At the second, the parties agreed I should determine the dispute based on the documentary evidence before me and the oral evidence given by Mr Ferrell at the first preliminary conference.
LEGISLATIVE FRAMEWORK
Liability for benefits beyond 26 weeks
The MAI Act provides a scheme of compulsory insurance for all NSW registered motor vehicles. It also provides a scheme of benefits and lump sum compensation for those killed or injured on NSW roads.
Part 3 of the MAI Act establishes a scheme of statutory income support and treatment and care benefits for almost all6 persons killed or injured in a motor accident on NSW
1 In the Port Macquarie local government area.
2 The claim form is document R2 in the insurer’s bundle of documents.
3 The liability notice is document R3 in the insurer’s bundle of documents.
4 The insurer issued an earlier liability notice on 27 May 2022 accepting liability pending the receipt of the investigator’s report - R4. The 15 July 2022 liability notice is document R5 in the insurer’s bundle.
5 The application for internal review is document R6 and the internal review decision is R7.
6 There are some disentitling provisions. For example, if a person has a workers compensation claim (s 3.35) or they have been charged with or convicted of a serious driving offence (s 3.37) then no benefits are payable at all.
roads on or after 1 December 2017.
Statutory treatment and care benefits can continue for life however statutory income support benefits only continue for two years after the accident unless a claim for damages is made in which case benefits are paid for up to five years after the accident7. Mr Ferrell was retired at the time of the accident, was not an earner and has not been paid any income support benefits.
Statutory benefits are paid for the first 26 weeks if no one is at fault or even if the injured person is at fault8. However, after the first 26 weeks, the MAI Act says that an injured person is not entitled to benefits if they only have minor injuries9 or if “the motor accident was caused wholly or mostly by the fault of the person”10. For an injured person to be “mostly at fault”’ requires a finding of contributory negligence on their part of greater than 61%11.
It should be noted that Mr Ferrell sustained serious injuries12 in the accident and there is no issue at all about his injuries falling outside the definition of minor injuries in s 1.6 of the MAI Act.
Jurisdiction
Mr Ferrell referred his dispute to the Commission for determination.
Schedule 2 to the MAI Act, cl 3 provides a list of miscellaneous claims assessments matters. Sub-clauses (e) and (n) combined provide the Commission with power to determine the disputes about whether an accident was caused wholly by the fault of Mr Ferrell or mostly by the fault of Mr Ferrell.
SUBMISSIONS
Claimant’s submissions
Mr Ferrell has not engaged a lawyer. He has provided a document headed “further information to the insurer” prepared for the internal review13 making the following
7 Section 3.12(2).
8 Section 3.1.
9 Within the definition contained in s 1.6.
10 Section 3.11(1) for weekly income support payments and s 3.28(1) for treatment and care benefits.
11 Section 3.11(2) and s 3.28(2).
12 Fractured pelvis, compound fracture of the left leg, broken kneecap, split lip and broken tooth and soft tissue injury to the left calf requiring skin graft.
13 Contained in a document – R8 in the insurer’s bundle.
comments:
(a)Senior Constable Parker visited the scene, completed the police report but “she did not investigate the road itself” and did not inspect the roadway or the motorcycle;
(b)the police report says the road surface was unsealed which is incorrect. It was a sealed road and there was loose bitumen (gravel) on the road surface, not just the edges;
(c)he stated his speed “would be lucky to have been 35” and did not know where the police officer obtained the information about him travelling at 40kmph;
(d)the crash summary says Mr Ferrell attempted to brake and left eight metres of skid marks. Mr Ferrell says he did not have time to brake and that if he did use his brakes they could not have left skid marks because his bike has ABS brakes. He also says the investigator’s photographs show no skid marks and if there were any, they must have been left by someone or something else. Mr Ferrell also notes that in her statement Senior Constable Parker says she thought there was evidence of braking but did not think there were skid marks;
(e)his foot pegs were new, but they were replacing old ones;
(f)there was loose gravel on the road not just the edges due to spray patching of the weather damaged road pavement;
(g)his reference in the interview to taking his eye of the road was in the context of a navigator and radio which he uses at other times, but he was not using them on this day;
(h)the police officer expressed an opinion that the accident happened because he took his eyes off the road. She did not consider the road condition and the gravel on the road surface, and
(i)the ambulance report says he was travelling at 40-50km when he lost control, but he says this is wrong and that his speed was approximately 30- 35km and speed was not a reason he lost control.
Mr Ferrell says:
“I disagree that the motorcycle accident was my fault. The accident occurred due to the road conditions.
The weather damaged pavement had been repaired by spray patching with tar and gravel. This left a large amount of gravel on the surface of the road. When the motorcycle travelled over this gravel the rear wheel lost traction, which caused it to slide off the roadway.”
He also says it was not possible to avoid the gravel.
Insurer’s submissions
Liability decisions of the insurer
The insurer’s liability notice dated 15 July 2022 denies liability because:
“[You] are wholly at fault for your motor vehicle accident and have sustained a non-minor injury. This decision is based on the investigation report and other contemporaneous supporting evidence, which outlines that you attempted to negotiate a right-hand bend, took a momentary glance at your foot near the brake pedal, looked back up and the back wheel slide out causing you to lose control and leave the roadway down an embankment.”
The insurer’s internal review decision cites two cases14, the Motorcycle Rider’s Handbook, the police report, the ambulance report and its investigator’s report and says the claimant was wholly at fault because:
(a)the investigations “cannot verify that there were any contributing factors that may have led to the accident”;
(b)there is no evidence that any third party caused or contributed to the accident;
(c)the risk of harm was foreseeable;
(d)a reasonable person in the position of the claimant ought to have taken reasonable caution in keeping a safe and proper lookout;
(e)the primary cause of the accident was the claimant’s failure to safely negotiate a bend caused when he looked down to his poot on the pedal of his motor bike, and
(f)the claimant’s conduct fell below that of a reasonable rider by failing to ride in a safe and proper manner and stay upright in the course of his riding and failing to turn safely.
14 Manley v Alexander [2005] HCA 79 and Vairy v Wyong Shire Council [2005] HCA 34.
Submissions to the Commission
The insurer’s submissions attached to the reply form provide a chronology and set out the relevant sections of the MAI Act. The insurer says there is no dispute that the cause of the accident was the claimant losing control but that there is a dispute about what caused the claimant to lose control of his motor bike.
The insurer notes the claimant says the accident was caused by the state of the road but says the claimant was the “author of his own misfortune” by being distracted and checking his foot pegs.
The insurer says, “there is nothing before the Member that identifies loose gravel on the roadway itself as opposed to loose gravel on the edge of the roadway”.
The insurer submits the claimant was wholly at fault because he:
(a)failed to take account of the topography of the roadway and continued to ride while he was distracted by his foot pegs;
(b)failed to keep a proper lookout for hazards on the roadway;
(c)failing to remain sufficient alert so he could react appropriately;
(d)failed to take evasive action to avoid hazards on the roadway;
(e)failing to control his motorbike to avoid injury;
(f)failing to take any or any reasonable car for his own safety;
(g)failing to take any or any reasonable care to avoid injury, and
(h)as motor bike rider in a vulnerable position he should have taken extra care for his own safety.
The insurer also says:
(a)driver error caused the accident;
(b)“roadways are not pristine environments” and that it is an everyday occurrence to find something on the roadway;
(c)he has a “heavy” duty to ride with care and had he paid attention to what was in front of him he would have been aware of loose gravel (it there was any);
(d)the claimant was distracted looking at his foot peg looking for the brake pedal and has acknowledged that taken your eye of the road for a split second and “you’re gone”, and
(e)the accident was caused by the claimant being momentarily distracted by his new foot pegs and losing concentration around a bend in the roadway. He must keep a proper lookout for hazards on the roadway and ride to the prevailing conditions.
REVIEW OF THE EVIDENCE
First responders
The police report is dated 9 February 2022 and gives this version of the accident:
“… the rider of a motorbike was riding on Forest Oak Road … and when went around the last bend before the Corowa Dam gates and for unknown reasons has lost control of his bike, attempted to break [sic] leaving approximately [eight metres] in skid marks, has gone down the embankment, hit the wire fence and was ejected off the bike hitting and coming to rest on a nearby tree.”
The report suggests the accident occurred on a curved road which was level, the weather was fine, the road was dry and unsealed with a speed limit of 60kmph. This report also records that the claimant’s pre-crash speed was 40kmph.
A statement was taken from Senior Constable Parker, the author of the police report by the insurer’s investigator and it is dated 11 May 202215. The statement includes the following:
(a)the road surface was “dry. Bitumen” [question 23] and “just loose bitumen on the edges” [24] and “gravel” [25];
(b)to her knowledge there was no gravel on the road surface but she acknowledged “I didn’t inspect the road itself” [26];
(c)to her knowledge there were “no big potholes or anything like that” [29];
(d)she didn’t think there were skid marks and she repeated that she did not inspect the road but says that her sergeant did [36];
(e)she spoke to the claimant while the ambulance officers were helping Mr Ferrell. “He did say that he had new pegs on the bike, and that he just looked down and lost control” [41], and
(f)she interviewed the claimant on 12 April 2022 while he was in hospital.
The police officer did not think speed was a factor in the accident and said the cause
15 Document R16 in the insurer’s bundle.
of the accident was “just neglect, so him looking down, taking his eyes off the road” [69]. She confirmed no action was taken against the claimant as it was a single vehicle accident and he had been badly injured.
The ambulance report16 says:
“[called to] 63 [year old] male, motorbike accident, [on attendance patient] found alert and well perfused laying bushes, [on examination patient] states he lost control of bike at 4-50km/h causing him to leave road and hit wooden fence post [with] bike and leg, causing him to be thrown from bike and into tree, [patient] states he is unsure whether he hit his head or had a [loss of consciousness], states possibly brief [loss of consciousness with [minor graze to helmet. Patient states recalls majority of events …”
The remainder of the case description concerns the claimant’s injuries and there are notes that the claimant was not dizzy, he had a Glasgow coma scale of 15 and he was handed over the helicopter retrieval team “non distressed, alert and well perfused”.
Claimant’s evidence
In his claim form, Mr Ferrell says17:
“I was travelling along Forest Oak Road at approximately 40 kph when I rode across a patch of gravel. The motorcycle lost traction and left the roadway going down a bank and through a fence. The impact flipped me off the bike into the base of a tree.”
The claimant’s statement to the police, two months after the accident is as follows18:
“I’d just been working by the Highway bit on the new highway pegs and we’ve got sheds just down near the entrance to the gate. And I’ve driven out, we’ve gone for a ride up to the dam, and I know I wasn’t going to be going too fast ‘cause I only go …
So, I’ve got about halfway to the dam, spun around, come back and on the side of the road just before you get out the gates there was all this loose gravel. I’ve looked down at the highway peg, which I haven’t had on the bike before, looking
16 Document R20 in the insurer’s bundle
17 The claim form was signed by the claimant’s wife (Jillian Felton) on 1 March 2022 with a note “Stephen is in PTA testing”. Mr Ferrell and his wife confirmed at the first teleconference that the version of events in the claim form is correct and while written by Ms Felton was done so at the dictation of her husband.
18 Senior Constable Parker recounts the statement taken from the claimant while he was in hospital at question 50 in her recorded statement taken by NRMA’s investigator.
for my brake pedal, and in that split second my back tyre dropped off the edge of the road, slipped down a few feet into the gravel and hit a hard wood rail fence post.”
The Senior Constable asked the claimant how fast he was going and he said, “be lucky if we were going 35 ks, if that”.
The claimant said he was driving by himself and gave additional information recorded by the Senior Constable:
(a)“so I just checked out the foot pegs, I’ve never had them on the bike before”;
(b)“and any other riders will tell you, if you take your eyes off the road for a split second … just that split second, taking your eyes off the road, you’re gone”, and
(c)he had his license since he was 17 but had been riding since he was six.
Mr Ferrell gave a statement to the insurer’s investigator on 10 May 2022. In it he says:
(a)he is retired and drives or rides 30 – 40,000 kilometres a year [12 and 14];
(b)he had owned his Harley since November 2000 and had ridden it 16,000 kms since he bought it [15].
(c)he rode over to his friend’s place at about 9,00am in the morning of the accident to replace the highway pegs and he decided to take the bike for a test run to try them out. He says:
33. [16] “… I rode out of the property and onto Forest Oak Road … I turned into the dam access road and about two or three kilometres along the road and then did a u-turn and rode back towards the gates. At the time weather was fine and sunny and the road surface was dry. It is a tarred road with a single lane in each direction. Parts of the road had been repaired with gravel and there was loose gravel on the surface of the road.
34. [18] At the time I was riding at a speed of about 30 – 35 kms. As I got about 100 metres from the gate there is a slight right hand bend in the road. As I negotiated the bend, I glanced down for a split second to see where my foot was in relation to the brake pedal and as I looked back up the rear wheel slipped off the edge of the road and down a slope that is covered in gravel.
35. [19] I did not have time to brake or take evasive action, as the motorcycle was sliding sideways.”
Mr Ferrell says at [22] that the police did not interview him at the scene but eight weeks later in hospital. He says at [27] “I believe the accident was caused by the motorcycle losing traction on the gravel”.
Mr Ferrell explained at the teleconference that foot pegs or highway pegs are fitted to motorbikes such as Harley Davidsons and designed to provide a place for your feet when you are riding long distances otherwise riders tend to let their feet dangle above the road which is very dangerous. When cruising along highways with your feet on the pegs, you then have to move them if you are going to use the foot brake. His highway pegs were new and thicker than his previous pegs and he had taken the motorbike for a run to test them out after they were installed.
Mr Ferrell said that on a motor bike, 70% of the braking occurs through the handbrake and 30% through the footbrake and in his case, both brakes are on the right-hand side.
Mr Ferrell said the road had been patched and that there were no photographs taken at the time of the accident and that the investigator’s photographs were taken three months after the accident and there had been rain and further deterioration of the road surface after the accident. While one of the post-accident witnesses had taken photographs, she had not taken photos of the road surface. Mr Ferrell also said there had been two more accidents on this site recently although he did not know the cause of those accidents.
Mr Ferrell said that he had ridden up the road towards the dam to test out the foot pegs and then ridden back. He said the road had only been patched on one side, the side he was riding on immediately before the accident. He said when riding up the road he did not see any patching or experience any loose gravel.
Mr Ferrell said that the accident happened so fast, and it was like “hitting marbles” and his bike lost traction and slid sideways.
I asked Mr Ferrell what he thinks would have happened if he had not looked down at his foot peg and he said his accident still would have happened because driving on the loose gravel was like hitting marbles on the road surface.
Brooksight investigation report
There are a number of photographs provided. Photographs 1,2, 3 and 4 show the road from the gates of the Corowa Dam including a kangaroo warning sign and a 50km speed advisory sign shortly before the left-hand curve (where the accident happened).
There is no equivalent sign on the other side of the road before the curve, warning drivers or riders travelling in the same direction Mr Ferrell was (that is back towards the entry gates).
The road heading towards the curve where Mr Ferrell’s accident happened is bitumen with line markings and what appears to be gravel shoulders.
Photograph 5 shows what appears to be two patches on the road heading away from the gates and photographs 7 and 10 shows what appear to be patches in the bitumen on the corner where Mr Ferrell lost control, but the photographs are not close ups and are not that clear.
FINDINGS OF FACT
What was Mr Ferrell’s speed before the accident?
The attending ambulance officers have recorded a history of 40-50kmph, the police have a record of 40kmph in their report. Mr Ferrell’s claim form which he says is accurate, completed by his wife at his dictation, has him travelling at 40km. The claimant says in his statement that would not have been travelling more than 30-35km.
The attending ambulance personnel did not witness the accident but took a history from the claimant while they were treating him. As there was no one else riding with Mr Ferrell, and no eyewitnesses, the ambulance history must have come from the claimant himself. The ambulance personnel suggest no issue with the ability of the claimant to tell his story and in particular note he was not distressed and had a Glasgow coma scale reading of 15 which suggests he was fully conscious and not confused.
The claimant has identified issues with the reliability of the police report. Clearly the police did not see the accident. What they have recorded must have been based on observation and whatever history was provided by the claimant to the witnesses or the ambulance personnel. While the insurer’s investigator interviewed one of the police officers, her evidence is that her sergeant inspected the road and there is no evidence from that officer. The identification of the road as “unsealed” is a significant error in the police report and that along with the skid mark evidence (in the absence of the sergeant’s evidence) causes me to doubt the accuracy of the whole report.
I am inclined to accept the record taken by the ambulance personnel (40-50kmph) primarily because it is the first in time version. The police report was completed two months after the accident and the claimant’s statement to the investigator was taken even later. The claim form completed three weeks after the accident suggests he was
riding at 40kmph. On the basis of the ambulance report and Mr Ferrell’s claim form, I find that Mr Ferrell was travelling at somewhere between 40 and 50kmph and most likely closer to 40.
Did Mr Ferrell take his eyes off the road?
Mr Ferrell has been consistent in his statements about looking down at his foot on the footpeg as he was heading into the curve. He says he “glanced down” for a “split second” and in that moment hit the gravel and lost control.
Mr Ferrell was riding his bike because he was testing out his new footpegs. He said they were thicker than his old ones and he looked down as he moved his foot to make sure his foot was on the brake.
I accept his evidence that he did look down but that he looked down for a very short time only.
Was loose gravel on the road?
The insurer submits that there is no evidence of gravel on the road. That submission is incorrect. There is evidence, Mr Ferrell’s evidence of there being gravel on the road. It may be that there is no evidence from an independent witness but there is certainly evidence from the claimant about the state of the road. The insurer was given the opportunity but did not ask Mr Ferrell any questions about his evidence. The senior constable, interviewed by GIO’s investigator, acknowledged that she did not examine the road although she said her sergeant did. There is no statement from the sergeant.
The insurer’s investigator has taken photographs, but not detailed photographs showing a close-up of the road or the patches on the road. Appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. In my view without expert evidence, it is very difficult for me to draw any firm conclusions as to the presence or not of patching or the presence or absence of loose gravel just by looking at the investigator’s photographs.
Mr Ferrell suggests the loose gravel was caused by the spray patching of potholes in the road, there is no evidence from the local road or council authority to support that there had been work done on the road and the nature of the work done.
Mr Ferrell has been consistent about the presence of gravel in his claim form, in his interview with the police and in his interview with the insurer’s investigators. At the teleconference before me he described driving across the gravel as like driving across marbles. I accept his evidence and find that there was loose gravel on the road surface.
CONSIDERATION OF THE ISSUES
Was Mr Ferrell wholly at fault?
The findings I have made above are:
(a)Mr Ferrell was travelling at 40-50kmph and most likely 40kmph before the accident;
(b)he took his eyes off the road for a short period of time, and
(c)there was gravel on the road.
In a motor accident where the claimant is one of two or more drivers, a starting point in determining whether the claimant is wholly at fault would be to consider whether one of the other drivers was at fault, that is whether another driver was negligent or breached a duty of care to the claimant. If there is some other driver whose fault caused the accident, then the claimant cannot be wholly at fault.
In a single vehicle accident where there is no other driver, the starting point in determining whether the claimant is wholly at fault might be to ask whether there is anything other than the way the claimant was driving / riding that caused the accident. If there is something else that caused the accident, then again, the claimant cannot be wholly at fault.
In Mr Ferrell’s case there is something else that caused the accident, the gravel on the road. Mr Ferrell said it was like riding on marbles and that he lost control of his bike as he rode onto or into it.
The road was a sealed bitumen road, the photographs taken by the insurer’s investigator suggests there was some patching and Mr Ferrell has said in his statement to the insurer’s investigator that there was loose gravel on the road from this patching. There is no evidence to the contrary put before me by the insurer.
I am satisfied that the cause of the accident was Mr Ferrell losing control of his motorbike and the cause of that was the presence of the loose gravel on the road.
I am therefore satisfied that the accident was not caused wholly by the fault of Mr Ferrell because the accident occurred on a manmade surface (the road) and the cause of the accident was loose gravel put there to repair it.
Is the claimant mostly at fault?
In determining whether the claimant is mostly at fault, I must consider whether there is any contributory negligence on his part at all. If there is, and it is more than 61%, then Mr Ferrell must be found mostly at fault.
Section 5R of the Civil Liability Act 2002 (the CL Act) applies when considering whether there is any contributory negligence on the part of Mr Ferrell. That section specifically provides that the standard to be applied in determining whether there is contributory negligence or not is that of a reasonable person in the position of Mr Ferrell on the basis of what he knew or ought to have known at the time. In other words, an objective test is applied without regard to the subjective situation of the claimant.
The insurer’s submissions raise some general arguments but some more specific arguments around whether the claimant was keeping a proper lookout or taking care to avoid the accident.
Did speed contribute to the accident?
I note the speed limit on the road is 60kmph and while there is a speed advisory sign before the curve where Mr Ferrell came to grief, it is a sign visible only to people coming the other way and did not apply to Mr Ferrell. Whether he was travelling at 30, 35, 40 or 50kmph, there is no evidence presented to me to suggest Mr Ferrell was travelling above the speed limit.
I note the attending police officer was of the view that speed did not have anything to do with it. There is no expert or other evidence to suggest that speed had anything to do with this accident.
Common sense suggests that had Mr Ferrell been travelling at a slower speed he may have been able to appreciate the state of the road surface and may have been able to do something to avoid the accident such as seeing the patching on the road surface and then the loose gravel at an earlier time but, as he was travelling below the speed limit it was not, in my view reasonable for him to slow even further.
Was Mr Ferrell keeping a proper lookout?
The claimant says he glanced down at his footpeg and that the accident occurred in that split second. I have found that he only took his eyes off the road for a short period of time.
The Court of Appeal in Mamo v Surace19 dealt with the issue of negligence on the part of a driver who collided with a cow on the roadway at night. The driver, for a very short
19 [2014] NSWCA 58.
period of time before the accident, had been adjusting the CD player in the car. Justice McColl said at [60]:
“Accepting that the exercise of reasonable care required the respondent to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 (at [12] per Gummow, Kirby and Hayne JJ) does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur.”
The court’s finding was that reasonableness and not perfection is required in keeping a proper lookout and that, in the circumstances of that case it was not a breach of duty for the driver to take his eye off the road for a short period of time.
The insurer submits to the Commission20 that the claimant should have stopped his bike while he was looking at his footpegs. This submission does not appear to appreciate the reason for why the claimant was looking down. Mr Ferrell explained that the highway pegs are located on the frame of the bike above the usual footrest and brake pedal. He explained that he was looking down to see where his foot was, relative to the brake pedal. He was not, for example, looking down to admire his newly acquired footpegs.
Mr Ferrell was testing his new footpegs. He was entering a corner and needed to brake. He looked down to make sure his foot was on the brake properly. That is, in my view, a reasonable thing to do as he was riding along.
A number of the insurer’s submissions (at 26) suggest Mr Ferrell was not alert, was not keeping a proper lookout or failed to avoid the hazard on the roadway. Mr Ferrell said he had no notice of the state of the road ahead of him, having ridden up the road on the other side of it moments before. His unchallenged evidence at the teleconference was that even if he had not looked down at his feet, his accident would still have happened because of the loose gravel which he could not see. The insurer also submits (at 25) that roads are not “pristine environments” and that something being on the road occurs every day. There is no expert evidence about how visible this loose gravel was or how easy or hard it was to see against the bitumen surface. I accept the claimant’s evidence that he came upon the loose gravel without warning and was
20 Paragraph 26.
unable to avoid it.
Did Mr Ferrell fail to take reasonable care?
The insurer also submits that the claimant failed to control his bike to avoid injury. Mr Ferrell said that once he hit the gravel it was like riding on marbles and he had no control of his bike. There is no expert or other evidence to suggest he could have maintained control of the bike after riding across the gravel.
The insurer also suggests that Mr Ferrell failed to take any or any reasonable care for himself and suggests he has a duty to take greater care because he is riding a motorbike and in a more vulnerable position.
Section 5R of the CL Act says that the standard of care is the objective “reasonable person” test. The insurer has not taken me to any case law that suggests Mr Ferrell should have been taking a greater level of care than anyone else in the circumstances.
Mr Ferrell was, in my view, riding at a speed below the speed limit. He was looking down momentarily to check where his foot and the brake were which was a normal part of riding his bike. In a split second he came upon loose gravel on the roadway which he did not know was there, and did not see before he came upon it following which he lost control of his motorbike.
In my view, a reasonable person in the position of Mr Ferrell would have ridden the same way and there was no contributory negligence on the part of the claimant.
CONCLUSION
It therefore follows that Mr Ferrell is neither wholly at fault or mostly at fault and he is entitled to a continuation of his statutory benefits beyond the first 26 weeks after the accident.