Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 418
•5 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 418 |
| CLAIMANT: | Kalina Ford-Gunatilake |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 5 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer’s decision about 50% contributory negligence and reduction of claimant’s statutory benefits under section 3.38; claimant was picking her children up for school; she had put the children in the car and the bags in the boot; she walked around the back of the car and down the side of her vehicle when she was struck by the wing mirror of the insured motor vehicle; narrow road with many pedestrians due to time of day; evidence including dashcam and expert supported a finding that the insured was driving at 30 km/h; claimant did not look before moving around her vehicle; claimant’s intention’s clear to driver for one second; insured vehicle visible to claimant for 2.8 seconds; insurer admitted fault on the part of insured driver for driving too fast and failing to brake soon enough; Held – both claimant and insured driver equally responsible; claimant’s statutory benefits to be reduced by 50% on account of her contributory negligence; no matter of principle. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. In accordance with s 3.38 of the Act, the claimant’s weekly payments of statutory benefits payable in respect of the subject accident are to be reduced by 50% on account of the claimant’s contributory negligence. 2. No legal or other costs are payable in the matter. |
STATEMENT OF REASONS
INTRODUCTION
Kalina Ford-Gunatilake was involved in a motor accident on 14 March 2023. She picked her children up from school and had put them in the car and their bags in the boot. She moved from the back of the car around toward the driver’s side of the car and was struck by a vehicle passing alongside hers.
Ms Ford-Gunatilake was injured and made a claim for statutory benefits against NRMA, the third-party insurer of the motor vehicle that struck her. The claim is made under the Motor Accident Injuries Act 2017 (the MAI Act).
On 5 April 2024, NRMA issued a liability notice to the claimant accepting fault on the part of the insured driver but alleging contributory negligence on the part of the claimant at 50%. In an internal review dated 18 April 2024, the insurer maintained this allegation of 50% contributory negligence.
The claimant does not agree with the insurer’s decision and referred the dispute about contributory negligence to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me and I have held two preliminary conferences in the proceedings.
PROCEDURAL MATTERS
Ms Ford-Gunatilake was present at the first conference held on 30 May 2024. During that conference the claimant became emotional and was clearly overwhelmed by the dispute and the proceedings. Ms Ford-Gunatilake had told me that she had made a damages claim and that she had a lawyer assisting her with that claim. I deferred the assessment to enable the claimant to consider engaging her lawyer to assist her with the current proceedings.
The second preliminary conference was scheduled for 4 July 2024. On 2 July 2024 the claimant contacted the Commission and advised that she wished to cancel the preliminary conference as she was struggling with mental health issues. An officer of the Commission asked the claimant when she thought she might be ready to engage with the proceedings, but the claimant said she was not sure.
After that message was relayed to me, I was advised that the officer of the Commission attempted to speak with the claimant again, but the claimant did not answer the calls.
On 4 July 2024, the insurer was present for the second preliminary conference but there was no attendance by the claimant. I informed the insurer of the communications between the Commission staff and the claimant. The insurer’s representative requested the proceedings be heard and determined and that, in the absence of any further information or submissions from the claimant or her legal representative, that I should determine the matter on the papers. Ms Haddad said NRMA did not wish to put on any further information or documentation or make further submissions.
I wrote a report which was issued to the parties. I advised the parties I would determine the dispute on the material that was currently before me unless the claimant advised otherwise or discontinued the proceedings. The claimant was given until 19 July 2024 to provide a response and the parties were advised that in the absence of a response I would determine the matter on the papers on or before 5 August 2024.
No further communication has been received from the claimant or any legal representative on her behalf.
LEGISLATIVE BACKGROUND
Ms Ford-Gunatilake’s claim for statutory benefits is made under Part 3 of the MAI Act. The statutory benefits that are available are weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
The entitlement to weekly benefits, the duration of payments and limits on payments are provided throughout Part 3. Almost all persons injured before 1 April 2023 receive benefits for the first 26 weeks after the accident however under ss 3.11 and 3.28 those who are found to be wholly or mostly at fault receive no benefits after that first 26 week period.
For those who are entitled to ongoing benefits, one of the limits imposed by the legislation is that weekly benefits are reduced by the degree of any contributory negligence on the part of the injured person. Section 3.38(1) says:
“The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.”
Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence which includes a determination of the degree of contributory negligence.
REVIEW OF THE MATERIAL
Claim form and liability decisions
The claimant lodged an on-line application form dated 21 March 2023. She described the accident as follows:
“I had put my children in the car and their bags in the boot. I was on the right side of my car beside [the] passenger door getting ready to open my door when I was struck by a Toyota Pajero. Right arm, right hip and right femur took the impact. I screamed in pain and went to the footpath so [as to] be off the road.”
At some stage, NRMA wrote to the claimant accepting liability to pay weekly benefits for the first 26 weeks after the accident.[1]
[1] While a copy of the letter or email has been provided, it is not dated.
On 22 June 2023 NRMA’s claims officer wrote to the claimant accepting liability to pay her ongoing benefits beyond 26 weeks after the accident. This was said to be “pending receipt of additional information”. NRMA said it had requested a factual report (from its investigators) and that new information from that investigation may result in the liability decision being reviewed.
On 14 February 2024 NRMA’s claims officer issued a further liability notice in relation to the claimant’s statutory benefits beyond the first 26 weeks after the accident. The claim was said to be “declined” on the basis the claimant was “wholly at fault”. NRMA said the dashcam footage showed the claimant did not pause and look to her right to check for approaching cars before walking onto the roadway.
Ms Ford-Gunatilake requested an internal review of that decision. On 5 March 2024, after conducting the internal review, Ms Haddad wrote to the claimant advising that “the original decision should be substituted” by a new decision that she was not wholly or mostly at fault. Extensive reasons were given. NRMA indicated at paragraph 21 that the insured driver did not exercise reasonable caution and breached their duty of care to the claimant. NRMA considered the insured driver should have been travelling at a slower speed and should have braked earlier than she did.
On 5 April 2024 NRMA’s claims officer wrote to the claimant referring to the previous liability confirming that NRMA did not believe the claimant was wholly or mostly at faut but informing her that “we have still applied a reduction to your payments based on your level of contributory negligence”. The reasons given for the contributory negligence deduction of 50% was, the claimant’s failure to check before moving onto the roadway.
Ms Ford-Gunatilake requested an internal review of that decision. On 18 April 2024, after conducting the internal review, Ms Haddad wrote to the claimant advising her at [24] that the insured driver’s contribution to the accident should be assessed at 50% because:
“I note the Insured Driver in no circumstance stated to have slowed down or attempted to brake their vehicle to avoid the collision. A reasonable person would have exercised greater caution, by slowing down to a lower speed if necessary and applying their brakes from entering Waratah Road especially noting the high pedestrian activity at the time...”
Ms Haddad then found at [27] that the claimant’s contribution to the accident and her injuries was 50% saying:
“I find you failed to keep a proper lookout, observe to the presence of the Insured’s vehicle and take reasonable care for your own safety. Furthermore, I find that you attempted to proceed to go to your driver’s side door of your vehicle from the rear of your vehicle when it was unsafe to do so and caused a traffic hazard by moving into the path of a driver, in breach of Road Rules 236.”
Submissions from the parties
In her application for assessment, the claimant says:
“I do not believe I was 50% at fault of being hit by the vehicle. I was not attempting to cross the road, I was placed on the side of my car. If my car door had been opened, it probably would have taken it off. I was hit on my hip first by what I expect to be the tire or guard for it and then the major impact was the mirror to my elbow, which pushed my shoulder upwards. I am so thankful that I had put my daughter in the car before putting their bags in the boot or it could have been her who was hit and it would have been a much worse outcome with her size. This is a very busy street at this time of day, many minors darting across the road, school crossing ahead and a lot of parents and minors entering vehicles. The driver was travelling way too fast for the width of the street and how busy it is with children everywhere. She did not travel at a safe speed and distance to avoid an incident. The dashcam footage is proof of her negligence. I do not think I was partially or equally at fault from the car colliding with me as a pedestrian. I still have ongoing injuries from this MVA, which has impacted my life and the lives of my children greatly.”
The insurer provided submissions with its reply. After setting out the history of the claimant and the insurer’s decision making, the insurer summarises the report of its investigators Quantumcorp and the report of Associate Professor Anderson as well as the dashcam footage.
The insurer refers at [12] to the standard of care for contributory negligence being that in s 5R of the Civil Liability Act 2002. The insurer says at [17] the claimant departed from the standard of care of a reasonable person and relies on a number of cases. The insurer also says at [18] that the claimant breached rule 236(1) and (2) of the Road Rules 2014 by causing a traffic hazard when she moved into the path of the driver and that she obstructed the path of the driver.
NRMA says at [19] that the claimant could have looked for oncoming traffic before moving onto the road but did not and had she looked she would have seen the insured’s vehicle. NRMA maintains at [22] that Ms Ford-Gunatilake’s contributory negligence should be assessed at 50%.
At the first preliminary conference I noted that the insurer had admitted their insured driver was at fault. Ms Haddad confirmed that was the case. She said the insurer had accepted that a reasonable person in the position of the driver would have driven at a slower speed noting the amount of traffic and pedestrian activity in the area (school pick up time) and done something to avoid the accident.
I also noted that the insurer had alleged that the claimant had not kept a proper lookout and that she had not looked before moving around her car to the driver’s door. I advised the parties that I viewed the dashcam footage of the incident from the insured driver. I asked
Ms Ford-Gunatilake whether she agreed there should be a finding of contributory negligence made and if so whether the only dispute between her and NRMA was the degree or percentage of that contributory negligence. Ms Ford-Gunatilake said she could not see how there could be any contributory negligence at all. She said the driver was going too fast for the area which was busy with parents picking up children. She also said she had no opportunity to see the approaching vehicle and that she would have had to step onto the road to be able to see what was coming or stick her head out into the traffic which would have resulted in a head injury.
Evidence provided by the parties
Dashcam
The insurer summarises the dashcam footage at [1] of the submissions. Having viewed the footage myself, I am satisfied that the times are accurate and have used it as the basis for my summary as follows:
(a) at 15:21:28 – 15:22:07 the insured approaches the school, and it is clear there is high pedestrian activity in the area. The insured driver slows and stops at a pedestrian crossing to allow a child to cross the road;
(b) at 15:21:33 - 35 the insured driver turns left and travels along Waratah Road. A family stops at the pedestrian refuge island but the driver does not stop (there is no pedestrian crossing). There are cars parked on both sides of the road and traffic in both lanes at various times. There is a 40km school zone sign, and
40km is painted on the road surface;(c) from 15:21:42 - 49 a female person (not the claimant) can be seen walking to the back of her vehicle and entering her vehicle. When she closes her driver’s side door, the claimant and her vehicle are visible as the next parked vehicle ahead of her;
(d) the rear of the claimant’s car appears to be parked further out from the line of other cars parked behind her and there are cars moving on the opposite side of the road;
(e) at 15:21:51 the insured driver’s vehicle is approximately two parked car lengths away from the claimant. The claimant is seen in the process of closing her vehicle’s tailgate and appeared to be looking towards the front right of her vehicle (ahead) or to the opposite side of the road. She has her arms bent and her hands are behind her as if she was adjusting her shirt but at this stage the dashcam captures only the top half of the claimant’ body. At no stage does she look to the right before walking down the side of her car;
(f) the claimant can be seen at 15:21:52 with the front passenger corner of the bonnet of the insured driver’s vehicle passing the claimant. The claimant is looking ahead and this may have been the moment of possible contact between the claimant and the wing mirror, and
(g) at 15:21:53 the insured driver continues to drive along, at 15:21:59 she slows down and at 15:22:07 the insured driver stops her vehicle and parks near the kerbside on the left side of Waratah Road.
Factual investigation
Quantumcorp provided a report to NRMA dated 7 June 2023.
The accident occurred on Waratah Road at Engadine. An aerial photograph of the street is provided, and it appears straight. The dashcam footage suggests there is a slight rise in the road, but it is minimal.
A statement from the insured driver, Ms Pu was taken on 17 May 2023. She says she is 36 years of age and a preschool teacher, married with two young boys.
Ms Pu says that the Toyota Prado she was driving was bought new in 2016 and was in good mechanical condition having been serviced regularly.
She describes driving down Waratah Street. She says at [26] she was driving very slowly because it was a school zone, and children were everywhere. She says at [27] there were a lot of cars parked on the street on both sides and people getting in and out of cars. She says “I was driving in my lane carefully watching out for people.”
She then says at [29] that, “I caught movement in the corner of my eye to my left, I heard a sound and looked to my left and the passenger mirror had folded in. It was the mirror folding in that made the sound.”
She says at [31] she was at the time driving less than 30km. She says at [39], “there is one lane in each direction and with the parked cars on the street, there is not much room between the vehicles.”
In an accident report form sent to NRMA and dated 4 April 2023, Ms Pu said there was no damage to the car. She provided the CCTV footage, a diagram of the accident and a page which includes the following description:
“She was on the road in between her car and my car as I drove pass, bending her elbow to tidy her shirt. That’s how the mirror on the left side of my car hit her right elbow or arm (not sure).”
Quantumcorp took photographs of the location of the accident. Photographs 4 and 5 show Waratah Street with cars driving in the same direction as the claimant with cars parked on both sides. There does not appear to be much room on either side of a car driving in its lane if there are cars parked on both sides and a car coming in the opposite direction.
Associate Professor Anderson
Associate Professor Anderson provided a report to the insurer dated 29 October 2023. He had the claim form, the factual report and the dashcam footage.
He reviewed the footage and notes there was no impact between the front of the insured vehicle and the claimant. He said there was no clear evidence of contact with the claimant’s hip and thigh, but the claimant could have impacted with the wing mirror.
Associate Professor Anderson says:
(a) the insured was driving at 30kmph [7.3 page 10] in the centre of her lane [7.3 page 12];
(b) there was one second between the first movement of the claimant toward the traffic lane and the contact with the mirror [8.1];
(c) the claimant did not look before moving into the roadway, “which likely represents a lost opportunity to avoid the accident” as she would probably have seen the insured if she had looked to the right [8.1];
(d) the environment (with lots of people and cars) would lead to a driver having to shift their attention constantly [8.2];
(e) typical reaction time is between 1 and 1.8 seconds [8.3], and
(f) the most effective evasive action would have been to steer away and avoid contact. He refers to an experiment by Summula reported in 1981 which showed that about two seconds was required for a vehicle to move 10cm laterally when a driver was suddenly surprised by a car door opening in front of them [8.4].
His conclusion was that the primary cause of the accident was the claimant walking into the path of the insured vehicle without looking to her right for oncoming traffic.
In a short supplementary report dated 26 June 2024, Associate Professor Anderson says the claimant would have had an opportunity to see the approaching vehicle for at least 2.87 seconds. The vehicle was 24m away from the claimant when it could be seen. He also says the claimant would not have had to step out beyond the line of parked cars in order to see the insured vehicle.
FACTUAL FINDINGS
I am required to consider the evidence and make factual findings as to what the two protagonists did or did not do in relation to how this accident occurred. Factual findings must be supported by logical and probative evidence. Any inferences drawn must be reasonably open on the facts Australian Broadcasting Tribunal v Bond.[2]
[2] (1990) HCA 33 at [367].
I am satisfied on the evidence that has been presented to me:
(a) that Ms Pu was driving at 30kmph in a 40kmph school zone. This finding is made on the basis of Ms Pu’s statement and the expert evidence of Associate Professor Anderson;
(b) Ms Ford-Gunatilake was familiar with the area and her children attended the school where this accident happened. This finding is made on the basis of what the claimant said in her application to the Commission and what she said at the preliminary conference;
(c) Ms Ford-Gunatilake knew the street was not wide. I make this finding based on her comment about the width of the street in her application to the Commission;
(d) that Ms Ford-Gunatilake was at the rear of her car after placing her children and their bags in the boot of the car. This finding is made on the basis of the claimant’s evidence in her claim form and my viewing of the video;
(e) Ms Ford-Gunatilake moved around the back of her car and walked towards the driver’s door but at no stage did she look to her right in the direction of Ms Pu’s vehicle before walking on to the roadway. This finding is made on my viewing of the video and the expert evidence of Associate Professor Anderson;
(f) the driver would have been aware of the claimant moving towards the traffic lane for less than one second and the insured’s car was visible to the claimant for about 2.87 seconds (Associate Professor Anderson’s reports), and
(g) the claimant did not have to step into the traffic lane in order to see the insured car (Associate Professor Anderson’s supplementary report).
CONSIDERATION OF THE ISSUES
What is the standard of contributory negligence?
Section 3.38 of the MAI Act provides that “the common law and enacted law as to contributory negligence” applies.
In terms of the enacted law, s 5R(2) of the Civil Liability Act 2002 says that the standard of care required of the claimant is that of a reasonable person in the position of the claimant to be judged on the basis of what they knew or ought to have known at the time.
Is there any contributory negligence at all?
NRMA alleges Ms Ford-Gunatilake was contributorily negligent due to her failure to look before moving onto the road and moving onto the road and causing an obstruction. The claimant denies there should be any finding of contributory negligence against her on the basis she was not crossing the road and could not have seen Ms Pu’s vehicle without sticking her head out into traffic which would have caused further injury.
The video is compelling. At no stage after securing the luggage in the rear of her car, turning and moving around the car does Ms Ford-Gunatilake look to her right in the direction of
Ms Pu’s vehicle. She moved out onto the traffic lane without looking for oncoming vehicles and therefore without seeing Ms Pu’s motor vehicle.
The video is also clear as to the environment where this accident occurred. It was school pick-up time, there were cars parked on both sides of the street and cars traveling in both directions in the street. There were children and adults on both sides of the road. Ms Ford-Gunatilke was a parent. She knew this area was a busy area at a busy time. She would have known that there were vehicles likely to be on the roadway. She knew the road was not wide.
While she was not crossing the road, she was moving in the vicinity of traffic travelling along the road. In my view a reasonable person in the position of the claimant, knowing this was school pickup time and knowing this meant the area was busy and aware of the width of the road would have looked before moving around her car onto the roadway and before moving towards the driver’s side door.
Ms Pu was travelling in the centre of her lane (according to Associate Professor Anderson) and was there to be seen. Had the claimant looked, she would have seen Ms Pu’s vehicle and would have had time to react and wait until Ms Pu had passed and it was safe to move onto the roadway and get into her own vehicle.
I am therefore satisfied that due to the claimant not looking she has contributed to the accident and the cause of her injuries.
What is the degree of her contributory negligence?
NRMA has admitted primary liability on the part of its insured driver Ms Pu on the basis that she should have been driving more slowly and should have braked earlier. According to NRMA, Ms Pu was negligent, and it was her fault that caused the accident.
In the case of Podrebersek v Australian Iron & Steel Pty Limited[3] the High Court said that in assessing the degree of contributory negligence:
“An apportionment between the plaintiff and the defendant of their respective share in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and the relative importance of the act of the parties in causing the damage … it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
[3] 59 ALJR 492.
Ms Pu’s departure from her standard of care, according to NRMA, was travelling too fast for the conditions at 30kmph in a school zone and not braking soon enough or taking other action. Ms Ford-Gunatilake’s departure from her standard of care was in not looking before she stepped onto the road and around her car. The expert’s report suggests at 30kmph the insured had 1 second from when she first saw the claimant moving towards the road and the accident. On the other hand, the claimant had 2.87 seconds to see the insured. In my view had Ms Pu been driving a little slower she may have had more time to react, brake or take other evasive action. But if the claimant had looked before she moved she could have avoided this accident regardless of the speed of Ms Pu.
In my view both Ms Pu and Ms Ford-Gunatilake are equally responsible. Ms Ford-Gunatilake’s contributory negligence is 50%.
CONCLUSION
I am satisfied therefore that Ms Ford-Gunatilake did contribute to the cause of the accident and her injuries. I am also satisfied that the degree of her contributory negligence should be assessed at 50%.
While I understand Ms Ford-Gunatilake has a lawyer acting for her in her damages claim, there is no suggestion that lawyer has provided legal advice and assistance in relation to the statutory benefits claim and therefore there is no award for costs.
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