Gulati v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 549
•13 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gulati v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 549 |
| CLAIMANT: | Adarsh Gulati |
| INSURER: | NRMA |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act; miscellaneous claims assessment; whether insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 in respect of a motor vehicle accident; claimant pedestrian walking across driveway on footpath; insurer conceded breach of duty of care; whether claimant guilty of contributory negligence; Held – insured driver’s failure to maintain a proper lookout was a significant departure from the requisite standard of care which carried the relevant causal potency for the accident; claimant’s actions did not in any way diminish the insured’s ability to maintain a proper lookout, which was the sole cause of the accident; insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017 and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 7 August 2022. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is nil. |
STATEMENT OF REASONS
INTRODUCTION
The claimant lodged an Application for Personal Injury Benefits on 30 August 2022 in respect of an accident which occurred on 7 August 2022.
The insurer issued a Liability Notice - Benefits up to 26 Weeks on 1 September 2022 accepting liability for statutory benefits for 26 weeks from the date of the motor accident.
The insurer also issued a Liability Notice - Benefits After 26 Weeks on 21 November 2022 accepting liability with contributory negligence for statutory benefits after 26 weeks from the date of the motor accident. It determined that the claimant contributory negligence was assessed at 50% because she failed to ensure it was safe prior to crossing and failed to observe the vehicle moving towards her prior to crossing the road.
The claimant requested an internal review of the insurer's fault decision on 15 December.
The insurer conducted the internal review on 28 December 2022 and substituted the original decision for a determination that the claimant contribution to the accident and/or her injuries amounted to 25%. A Further Liability Notice - Benefits After 26 Weeks was subsequently issued on 30 January 2023.
The claimant applies to the Personal Injury Commission (Commission) for the determination of a miscellaneous claims assessment matter under Schedule 2, cl 3 (g) of the Motor Accident Injuries Act 2017 (the Act) as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 (Reduction of weekly statutory benefits after 6 months for contributory negligence) in respect of a motor vehicle accident.
THE ACCIDENT
According to the police report, the accident occurred between 10:00am and 10:40am on
7 August 2022. There was one vehicle involved in the subject accident. The claimant was a pedestrian.The accident took place on Blaxland Road (100m east of Doomben Avenue), Eastwood at the carpark exit ramp of the carpark at 'Sommerville Park'.
Police did not attend the accident scene.
The crash summary is as follows:
(a) Dr Gulati was walking north along Blaxland Road toward the vicinity of Sommerville Park;
(b) upon approaching the entry/exit driveway of the carpark to the LOC, Dr Gulati saw the insured driver's vehicle stopped approximately 1.5-2m from the driveway attempting to exit the carpark. At this time, Dr Gulati believed that the insured driver had seen her and began crossing the driveway, and
(c) the insured driver attempted to exit the carpark and made contact with Dr Gulati with the front left side of his bumper. The contact caused Dr Gulati to fall over and land on the concrete causing large scratches to her elbows, bruising to both her elbows and knees and grazes to her hand and knees.
Upon falling to the ground, the insured driver had still not seen Dr Gulati and began moving forward to exit the carpark and again made minor contact with Dr Gulati before he was stopped by Dr Gulati's husband.
Constable Dack obtained the insured driver’s version of the accident as follows:
“I was in my car with my wife, Sook Lin Chen, attempting to leave Somerville Park, Eastwood. At this time I have driven out of the driveway and have stopped my vehicle directly on the edge of the road, where I have remained for about ten seconds. At this time I have not seen any pedestrians, and had been watching cars to my right due to oncoming traffic and attempting to turn left. I have not looked left before attempting to turn due to having already stopped past the pedestrian strip and not believing anyone would be walking in front of the car due to where I was stopped‚ I have begun to accelerate, turning on to Blaxland Road, before my wife screamed stating I’d hit someone. There was also a man yelling at me‚ and I have then seen someone laying on the road to the side of my car. I’ve immediately stopped my car to check on the lady and apologise. At this point my car was half on the road and completely blocking the first lane, and she was lying on the ground... I had my left indicator on.”
Constable Dack obtained the claimant’s version of the accident as follows:
“I was walking north along Blaxland Road in the vicinity of Somerville Park. Upon reaching the driveway leading to Somerville Park car park, I have checked the driveway for cars before attempting to cross. At this time there was a black car stopped at the exit. This car was about 1.5 to two metres away, and I thought he would see me and stop. I have attempted to walk across the driveway before I have been hit in the knees by the car. This has caused me to fall to the ground. At this time I have felt my ankles get hit by something again, and I thought my ankles were going to go under the car tyres.”
Police did not interview Dr Gulati's husband.
The claimant provided the following version of events in her Application for Personal Injury Benefits:
“I and my husband were walking on footpath on Blaxland Road Eastwood. As we approached the driveway of Sommerville Park, there was a stationary car at exit. There was space to walk across driveway. The driver was apparently only looking right for oncoming traffic and did not look left. He knocked me down on road then stopped as he could not beat the oncoming traffic. Then he started again and knocked me a second time. My husband banged on window and then he stopped... .”
The claimant participated in an interview with investigator on 9 September 2022, which is summarised as follows:
(a) Prior to the motor accident, she and her husband, Mr Suresh Gulati, were walking towards Epping on the footpath on the eastern side of Blaxland Road, on their way to have breakfast. Her husband was walking on her right-hand side.
(b) There was a car waiting to make a left hand turn out of the exit of Sommerville Park onto Blaxland Road, the car was still on the park side of the footpath, she cannot say how far from the footpath that he was or recall if he had the left-hand indicator on. She did not see the car coming towards her before it hit her.
(c) She was impacted on the outside of her right knee and was knocked left onto the roadway. The car then kept coming very slowly and hit her on the second occasion on her left foot.
The insured driver, participated in an interview with investigator on 6 September 2022, which is summarised as follows:
(a) Prior to the accident, the insured driver was leaving the Sommerville Park.
(b) He had clear vision from inside his vehicle, and he was unfamiliar with the roadway as it was the first time her had been to the park.
(c) He intended to turn left onto Blaxland Road.
(d) As he approached Blaxland Road, he put his left-hand indicator on. There was traffic coming from his right, so he came to a complete stop. When he stopped the front of his car was almost on the edge of Blaxland Road. There were no pedestrians in front of him. He was stopped for at least 10 seconds waiting for the traffic to clear so that he could make a left hand turn onto Blaxland Road. During this time, he was looking to his right to make sure that it was safe for him to make the left-hand turn.
After about 10 seconds, the traffic to his right cleared and he says gently accelerated to make the left-hand turn. He heard his wife scream. She told him that he had hit someone. He says he stopped straight away and got out of the car.
He did not at any time observe the claimant or her husband.
He did not look to his left before turning onto Blaxland Road.
There was no damage to his vehicle.
The claimant’s husband provided a statement to investigator on 9 September 2022, which is summarised as follows:
(a) the claimant and her husband were walking side by side on the footpath, with the claimant being on the left;
(b) the insured driver’s vehicle was waiting to make a left hand turn out of the exit of Sommerville Park onto Blaxland Road, and
(c) he cannot recall if the insured driver's vehicle had its left indicator activated.
He stated:
“The car was behind the footpath on the park side of the footpath as we walked in front of the car at a normal walking pace the car took off and knocked my wife onto the ground and the impact took her onto the roadway. The driver then stopped I could see that he was still looking right and didn't know that my wife had been knocked down by his car. The car took off and impacted my wife again and I then banged on his window.”
SUBMISSIONS
Insurer’s submissions
The insurer concedes that the insured driver owed a duty of care the claimant, that he breached that duty and that he is at fault in causing the motor accident.
However, the insurer submits that the claimant was also at fault in the motor accident because she failed to take precautions for her own safety by not keeping a proper lookout for vehicles exiting the carpark of Sommerville Park before crossing the footpath. On that basis, the insurer submits that the claimant contributed to the accident and/or her injuries at 25%.
The version provided by the claimant was that as she approached the exit / driveway of the carpark at Sommerville Park, she noticed that the insured driver's vehicle was stationary at the exit about 1.5 - 2m away; and attempted to walk across the footpath/exit driveway as she though that the insured driver would see her and stop. It submits that this is confirmed by the claimant husband in his statement.
The version provided by the insured driver was that he was attempting to exit Sommerville Park and had driven out of the carpark and stopped his vehicle directly on the edge of road and waited about 10 seconds for traffic to clear so that he could turn left onto Blaxland Road. He checked his right side for oncoming traffic and when it was safe, attempted to turn left onto Blaxland Road. Due to having stopped past the pedestrian strip and not believing anyone would be walking in front of his vehicle, he did not check his left side before commencing to turn onto Blaxland Road and impacted the claimant who commenced walking across the footpath/exit driveway.
The insurer highlights that there are some inconsistencies in the version of events provided by the claimant and the insured driver as follows:
(a) the claimant stated that the insured driver's vehicle was stationary at the exit about 1.5-2m away (i.e., behind the footpath) whereas the insured driver stated that his vehicle was stationary directly on the edge of the road, and
(b) the claimant stated that she walked across the footpath; however, the insured driver stated that he was stopped past the pedestrian strip and if a pedestrian was to walk in front of his vehicle they would have had to get onto the roadway.
The police were unable to determine fault due to the conflicting statements from the claimant and the insured driver.
The police did not obtain the details nor statements from any independent witnesses to the motor accident.
The insurer accepts that it bears the onus of proving that the claimant departed from the standard of care expected of her and that the departure from the standard of care had some “causal potency” in relation to the accident.
The insurer concedes that there is a high degree of negligence on the part of the insured driver. Whilst waiting for a break in traffic to turn onto Blaxland Road, the insured driver failed to check for pedestrians on his left, and as such, did not observe the claimant at all despite his vehicle impacting her. He was unable to take any evasive action to avoid the accident that transpired. The insurer acknowledges that the insured driver was not keeping a proper lookout and should have looked to his left before attempting to turn onto Blaxland Road. If he had done so, he would have seen the claimant commencing to walk in front of his vehicle and taken evasive action.
Similarly, the insurer submits that the claimant departed from the standard of reasonable care for her own safety when she saw that the insured driver's vehicle was stationary and attempting to exit the carpark at Sommerville Park and turn onto Blaxland Road; however, continued walk across the footpath / exit driveway, on the assumption that the insured driver would have seen her and/or would give way to her. The insurer submits that a reasonable person in the claimant’s position, would not have walked across the footpath/ exit driveway and in front of the insured's stationary vehicle and would have either waited for the insured’s vehicle to merge/turn onto the roadway or walk behind the insured driver's stationary vehicle, which would have been the safer options.
The insurer maintains that the available evidence indicates that the claimant failed to take reasonable precautions for her own safety and contributed to the accident and her own injuries.
The insurer submits that the claimant’s negligence has resulted in her contributing to the accident and injuries by 25%.
Claimant’s submissions
In a document setting out the basis for her disagreement with the insurer’s decision to a apportion 25% contributory negligence to her, on the basis that her liability should be reduced to 0%, the claimant made several submissions by way of commentary in respect of the insurer’s internal review decision.
Relevantly, she submits that she was walking on the pedestrian footpath and the insured’s vehicle was stationary at the time. She says that the driver was only looking right to monitor the oncoming traffic coming down the hill and was not looking left where she was crossing on the pedestrian footpath. She said that she and her husband took all precautions. She said that if the insured driver were looking to both sides before exiting, she would not have been hit on two occasions. She submitted she did not cross in front of a moving car, rather the car was stationary.
REASONS
The claimant would be guilty of contributory negligence if she were to have exposed herself to a risk of injury which might reasonably have been foreseen and avoided and suffered the injury within the class of risk to which she was exposed: Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [16] per Mc Hugh J. The insurer alleges in this case that the claimant was guilty of contributory negligence by act and omission, that is, first, by crossing in front of a vehicle already across the footpath, and second, in failing to allow the insured vehicle to execute the turn before crossing the driveway.
The claimant and her husband’s evidence is resolute that the insured vehicle had not crossed the footpath, because they were walking along the footpath when the accident occurred. The claimant submits that because the vehicle was stationary it was safe for her to proceed along the footpath and across the driveway.
The driveway where the accident occurred is depicted by the image below.
[IMAGE UNABLE TO RENDER]
I am not satisfied that the claimant and her husband were walking on the road, as alleged by the insurer, for the following reasons:
(a) The preponderance of evidence, being that from the claimant and her husband, is that they were walking on the footpath. Their evidence was unchallenged. I am satisfied that their unchallenged evidence is not inherently improbable. This is so as a matter of common sense and is made more so by the next matter to which I refer.
(b) I am satisfied of that the claimant’s evidence is the more plausible explanation because I am satisfied that the insured’s evidence, that he had his nose on the roadway, is less likely than not. To be correct, it would require the claimant and her husband to have made a conscious decision to step out onto the roadway, which, to be consistent with the insured’s account that he waited 10 seconds, meant that that roadway must necessarily have been replete with oncoming traffic for that considerable time. In those circumstances, I am not persuaded that the claimant and her husband would jointly elect to walk out into the path of oncoming traffic when it would have been just as easy to walk behind the plaintiff’s car, which is diminutive in size.
Rule 74 of the Road Rules 2014 (NSW) provides that a driver entering the road from a road related area such as the driveway must give way to any pedestrian on the road and any pedestrian on any road related area such as a footpath.
It is not disputed that the insured driver was crossing a footpath to exit Sommerville Park. He was therefore, at all material times, regardless of where his vehicle was position on that driveway, required to give way to any pedestrian crossing the footpath or the road. The corollary being that the claimant was not required to give way to the insured’s vehicle. Although the road rules are not the metric by which the standard of care is to be adjudicated, they are nonetheless relevant.
In this instance, the claimant was cognisant of the vehicle in the driveway but took comfort from the fact that it was stationary and, therefore perceived she was entitled to cross. She proceeded cautiously. There is no suggestion that she did not exercise due care when doing so. Rather, the insurer alleges she departed from the standard of care by not waiting to allow the vehicle to enter the roadway. Objectively viewed, the claimant’s instinct that it was safe to cross is entirely consistent with expectation which would arise in a reasonable person based on the relevant Road Rule. It would not be objectively perceived as risky in the circumstances. As such I am not satisfied that her decision to cross the footpath over the driveway, as she did, constitutes a departure from the standard of care reasonably expected of a pedestrian taking reasonable care for her safety in the circumstances.
Even if I were not to be so satisfied, the insured had the primary obligation to give way to the claimant. He looked, but he did not exercise due care when doing so, in that he only looked to the right, and therefore, did not maintain a proper lookout. Had there been a proper lookout, the insured would have seen the claimant and her husband (as there was no difficulty in doing so) and he would not have proceeded into the footpath. This was a significant departure from the requisite standard of care which carried the relevant causal potency for the accident. The claimant’s actions did not in any way diminish the insured’s ability to maintain a proper lookout, which, I am satisfied is the predominant, if not sole, cause of the accident
Accordingly, I am not satisfied that the insurer has demonstrated that the claimant was guilty of contributory negligence. Therefore, the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act in respect of the motor vehicle accident.
COSTS
The claimant was self-represented. I have no evidence that she has incurred any legal costs. I therefore award no costs.
Legislation
In making my decision I have considered the following legislation:
• the Act, and
• Motor Accident Injuries Regulation 2017.
Outcome
0