Heagney v Allianz Australia Insurance Limited
[2022] NSWPIC 632
•15 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Heagney v Allianz Australia Insurance Limited [2022] NSWPIC 632 |
| CLAIMANT: | Sean Heagney |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 15 November 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant on bicycle entering roundabout when the insured continued into intersection failing to give way to claimant and caused collision; whether insurer is entitled to reduce statutory benefits payable in respect of the motor accident in accordance with section 3.38; contributory negligence; Held – incumbent on insured to give way upon entering the roundabout to vehicles oncoming on its right; insured did not slow down and did not stop to give way; claimant took evasive actions to avoid the accident; claimant not contributorily negligent; insurer 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 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 of payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 26 January 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to an application for a miscellaneous claims assessment made pursuant to Schedule 2(3)(g) of the Motor Accidents Injuries Act 2017 (NSW) (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 six months for contributory negligence).
Sean Heagney (the claimant) is a 44-year-old police officer who was involved in an accident where his bicycle collided with a Mitsubishi motor vehicle registered number 039 XKQ, registered to a Queensland driver at a roundabout at Baulkham Hills in the State of New South Wales.
The claim for personal injury benefits has been allocated to Allianz Australia Insurance Limited through the nominal defendant scheme.
The original decision of the insurer was made on 28 April 2021 from which internal review was sought. The internal review was concluded by way of a determination made on 16 June 2021 which maintained the decision originally made by the insurer that the claimant’s contributory negligence in respect of the accident was 20%.
The accident occurred at 9.10am on Tuesday, 26 January 2021 (the Australia Day public holiday) at the intersection of Mackillop Drive and Leone Avenue at Baulkham Hills. The intersection was controlled by a roundabout.
The claimant was travelling southeast on Mackillop Drive whereas the insured driver was travelling along Leone Avenue from the claimant’s left.
In his Application for Personal Injury Benefits dated 28 January 2021, the claimant gave the following account:
“I was travelling by bicycle in a south easterly direction from Barina Downs Road. As I approached the roundabout at the intersection of Leone Avenue I saw a white Mitsubishi ASX station sedan bearing Queensland registration 039 XKQ, travel up Leone Avenue to meet the intersection. I had entered the roundabout as the vehicle continued into the intersection with a right indicator flashing failing to give way to me. As a result I was unable to stop avoid colliding with the vehicle.”
In a statement provided dated 26 May 2021, the claimant said at paragraph 8 in respect of the accident as follows:
“As I approached the roundabout at the intersection of Mackillop Drive and Leone Avenue I began braking. I would estimate that I commenced braking about
40-50 metres before the intersection. In doing so I activated the brake levers on the handlebars for the front and rear brakes of the bicycle. I looked and saw that there was no traffic coming from the opposite direction meaning there was none on my right to give way to. I also looked and saw that there was also no traffic approaching from my left. As I entered the roundabout, I saw a white coloured Mitsubishi ASX wagon approaching the roundabout from my left on Leone Avenue. I had crossed a broken line indicating the perimeter of the roundabout prior to the white vehicle crossing the broken line from Leone Avenue. I would estimate that I was travelling at around 35kph.”He continued on at paragraph 9:
“Having seen the vehicle approaching from my left I increased the pressure on both the front and rear brakes as I was aware that the vehicle had failed to stop prior to entering the roundabout and had failed to give way to me. I saw the vehicle continue into the roundabout and directly into the path of my bicycle. I applied as much force as I could to both brakes to the point where my wheels locked up and the tyres began to skid. I turned the handlebars to the right as the driver of the vehicle slowed down. In turning I was attempting as best I could to avoid a collision by manoeuvring my bicycle around the front of the vehicle. Unfortunately, I had no space left to continue that manoeuvre and the front wheel and left side of my bicycle collided with significant force with the front offside quarter panel of the vehicle. The impact caused me to flip head first over the bonnet of the vehicle. My bicycle was propelled skywards. I landed heavily on my left shoulder and head on the roadway in front of the vehicle. My bicycle landed beside me. Thankfully, the vehicle had come to a stop. The driver got out of the car and apologised. I managed to walk off the roadway and sat against a fence adjacent to the roundabout. An ambulance later attended and conveyed me to hospital where I was treated and diagnosed with a fracture of my left clavicle as well as abrasions.”
The insurer relies upon an informal statement taken from the insured driver to the following effect:
· he approached the roundabout looking for cars, saw none and proceeded into the roundabout;
· he did not see the claimant on his bike until the claimant was ahead of him, and
· he tried to turn left to avoid colliding with the claimant. The claimant fell. The insured driver was uncertain whether or not there was an impact between the vehicle and the claimant’s cycle.
There was also Go-Pro footage of the I incident taken by a following rider. Both parties have set out in detail how I should interpret this footage.
The insurer says that the footage shows the claimant riding for about 10 seconds approaching the intersection, hunched over his handlebars in an aerodynamic posture. It submits that this has the purpose of minimising the body habitus to in turn minimise wind resistance to achieve maximum speed with minimum effort. It submits the claimant is not pedalling but is coasting or freewheeling. It submits he appears to be travelling quite quickly.
Importantly, it submits, the claimant does not appear to slow down on his approach to the roundabout, which it says is contrary to his statement.
It is clear, it submits, from the footage, that the distance between the two cycles, that is ridden by the claimant and that ridden by his companion who takes the footage, remain the same as the claimant approached and entered the intersection. It submits therefore that the two must have been travelling at the same speed.
It is submitted that one can see from the footage that the claimant’s companion depressed the right calliper (brake) at point 11 seconds into the 34 second footage. It submits that the claimant’s companion was then about 30 metres from the mouth of the intersection. At this point, the claimant had already entered the intersection. The collision had not then occurred.
It submits therefore, that it follows, that the claimant had not applied his brakes before entering the intersection and therefore he must have been mistaken in his belief that he did so.
It refers to the claimant’s statement that he looked to his left as he approached the roundabout and did not see any traffic. It submits that the footage demonstrates that at the time the claimant enters the roundabout, the insured vehicle was in the roundabout. It submits therefore that the reason why the claimant did not see the vehicle is because he was not looking out for it.
It submits that I should draw the inference that the claimant was entirely focussed on his ride or in the alternative he saw the insured vehicle and believed that he could beat it through the intersection.
It submits that it is not entirely clear from the footage whether or not it was the insured vehicle or the claimant’s bicycle which entered the intersection first. Either way, it submits it was a very “fine line” and both ought to have been wary of the intentions of the other.
It submits that the only inference that could be drawn from the Go Pro footage is neither the claimant nor the insured driver was aware of the presence of the other.
It submits that the claimant concedes in his statement that the insured driver had his right-hand indicator flashing which showed an intention to turn right. So at least some point in time prior to the impact the claimant was aware of the presence and intention of the insured vehicle yet did nothing to ensure the insured vehicle was aware of him on his bicycle.
The claimant rejects the insurer’s suggestion that the footage does not clearly depict who entered the roundabout first. He submits that the claimant entered the roundabout first. It relies on a number of screenshots taken from the Go Pro footage which shows the claimant’s bicycle at the mouth of the roundabout. It submits that at this point in the footage the insurer’s vehicle is not even in the screenshot and therefore not at the mouth of the roundabout.
At 11 seconds of the footage, the claimant’s bicycle is depicted as being well into the roundabout as the insured’s vehicle is at the mouth of it. He notes that the shadow of his bicycle is to the right of him and towards the camera, which he submits means that his bicycle is further ahead than his shadow. The shadow is over the white line depicting the mouth of the intersection. He submits therefore that the insured driver should have given way to the claimant as he was already on the intersection.
Documents considered
I have considered the documents provided and the further information provided by the parties.
SUBMISSIONS
Claimant’s submissions
The claimant disputes that the insured vehicle was travelling slowly. The Go Pro imagery demonstrates that the vehicle was not in the frame at the time of which the claimant’s bicycle was at the mouth of the roundabout. The fact that the collision has occurred at all suggests that in the circumstances, the insured vehicle was travelling at a speed greater than 10 kmph as it entered the roundabout and obviously the speed at which it was travelling was dangerous in the circumstances.
He remarks upon the insurer’s recognition of an overriding obligation that all traffic approaching a roundabout must slow down, and if necessary, stop to avoid a collision. It remarks upon the insurer’s assertion that neither its insured driver nor the claimant did so. The claimant agrees that the insured driver failed to slow down and stop to avoid the collision. The claimant denies that he failed to slow down and took all the necessary steps to avoid the collision. He remarks that the insured driver has not stated, nor has he alleged, that he slowed down on his approach to the roundabout. He says that he did not see the claimant until he was “ahead of him”. The claimant submits that this is to be interpreted that he did not see the claimant until there was a collision.
The claimant asserts that the insured driver failed to slow down on approach or when entering the intersection. The only evidence as to either the insured’s vehicle or the bicycle was slowing down prior to impact is that contained in the claimant’s statement and the footage which shows that the claimant was not pedalling, which is submitted because he was also applying the handlebar brakes.
He submits that any weight relied upon pertaining to the insured driver’s version should not be given any weight. He relies upon a decision in Joyce v Anderson [2020] WASCA 48 from the Western Australian Supreme Court of Appeal, which dealt with contributory negligence involving a cyclist entering a roundabout with a vehicle approaching from the cyclists left causing a collision with the cyclist who suffered injuries which led to his death. The facts of that case were that just prior to the collision the deceased was approaching a roundabout. He intended to continue after passing through the intersection straight on. The insured driver in that instance was approaching the roundabout in the perpendicular direction. She intended to continue straight on when passing through the roundabout. There was a requirement that the insured driver give way to the cyclist. It was common ground that the insured driver had not seen the cyclist upon entering the intersection. The Court determined that the cyclist was travelling at a speed between 15 to 20 kmph. The insured driver was found to have only been travelling slowly and was able to brake almost immediately but because of the position of the cyclist in the roundabout there was not sufficient time for the insured vehicle to brake or take evasive action.
The Court of Appeal considered s 5K of the Civil Liability Act 2002 (WA) (CL Act) which mirrors s 5R of the NSW CL Act. The Court of Appeal found that there was no contributory negligence.
The claimant urges upon me to adopt the reasoning of the West Australian Court of Appeal and make a finding of no contributory negligence.
The claimant asserts that he kept a proper lookout and slowed down his bicycle upon approaching the intersection. If it was not for this, he would not have survived the collision. He submits that his defensive riding saved his life.
The claimant submits that the only evidence to which I should give way to is the claimant’s statement, wherein he says that he approached the intersection without pedalling, slowed his bicycle on approach using his handlebar brakes and entered the roundabout intersection before the insured vehicle.
He submits that there should be no reduction for contributory negligence.
Insurer’s submissions
The insurer relies upon Rule 114 of the Road Rules NSW 2014 (Road Rules) which requires that a driver upon entering a roundabout must give way to any vehicle in the roundabout. Note 2 to this rule provides that for this rule, give way means the driver must slow down and if necessary, stop to avoid a collision.
It submits that the usual rule that vehicles must give way to traffic from their right would apply. Although this does not override the obligation that all traffic approaching a roundabout must slow down, if necessary, to avoid a collision. It submits that neither party did so.
In making submissions with respect to contributory negligence it relies upon s 5R of the CL Act and refers to the epithetical decision in Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492. It also relies upon a decision in Sibley v Kais (1967) 118 CLR 424. This decision provides:
“The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."
The insurer also relies on a recent decision of Member Cassidy in ABY v QBE Insurance (Australia) Limited 2019 DRS CA051. In that case, ABY was riding his bicycle along Queen Street in Kogarah in a generally northerly direction. The insured driver was driving in the opposite direction. At the intersection with Ocean Street, the insured driver turned right across the path of the claimant’s bicycle causing him to collide with her vehicle, fall and sustain injury. QBE was the relevant insurer and it alleged 30% contributory negligence. The insured driver in that accident gave a version of events to the police that as she was turning onto Ocean Street, she suddenly noticed a male was on the passenger side front window screen. She did not feel the impact of her car with the cyclist.
The claimant’s statement was to the effect that as he was approaching the intersection of Ocean Street he was continuing straight ahead. He noticed the car making a turn through the stopped traffic onto Ocean Street. He braked hard and looked at the driver to see if she was looking at him but saw that she was looking at stopped traffic. The cyclist was unable to avoid the collision.
The Member accepted that shortly before impact, the insured driver was looking in the claimant’s direction but was focussed on turning right. She was also satisfied that the claimant took no precautions before entering the intersection but braked as soon as he saw the insured driver. Relevantly, she found that the claimant was 20% contributory negligent.
It submits that the speed at which the claimant was approaching the intersection and his use of the brakes is of utmost relevance. It submits that the Go Pro footage rebuts the claimant’s assertion that he braked in anticipation of the intersection. It submits that the claimant was a police officer and an experienced cyclist. He would have been well aware of the risks involved in road cycling. It submits that he did not conduct himself in a manner consistent with a person taking reasonable care for his own safety, in particular, he did not:
(a) keep a proper look out;
(b) ride defensively;
(c) heed the right-hand indicator activated by the insured driver;
(d) brake on his approach and entry into the roundabout or brake sufficiently;
(e) ensure that the insured driver had seen him and was going to give way to him; and
(f) did not take all steps to ensure his own safety but rather took a risk in believing he could beat the car and pulled out of that decision when it was too late.
In these circumstances the insurer submits that it should be entitled to reduce the payment of statutory benefits by 20% according to the claimant’s culpability for the accident relative to the insured driver.
REASONS
I have relied upon the Go Pro footage (which I have viewed countless times) to determine the points at which the parties entered the roundabout.
As can be seen in the screenshot exhibited at Figure 1 below, I have, using a perpendicular red line drawn the point at which the insured vehicle would have been at the entry to the roundabout. As can be seen in Figure 2, which also bears the same red perpendicular line, the claimant has already entered the roundabout at the time which the insured vehicle meets this line. As it was incumbent upon the insured driver to give way upon entering the roundabout to vehicles oncoming on its right, it is palpably clear that the insured driver did not slow down and did not stop to give way.
[IMAGE UNABLE TO RENDER]
I am satisfied that the insured driver was inattentive, approached the roundabout at excessive speed and failed to stop or even slow down in circumstances where he was obliged to give way to oncoming vehicles on his right. The approach to the roundabout from the direction from which he was travelling is uphill and had limited visibility. It is incumbent upon a road user exercising the requisite standard of care and skill to slow down, and indeed, come almost to a stop to check whether vehicles were oncoming to the driver’s right. It is well apparent from the footage that the insured driver did not do this.
It is apparent from the Go Pro footage that the claimant took evasive actions as soon as he appreciated the presence of the insured vehicle at the entry to and in the roundabout. This is consistent with his statement. He was not challenged on his evidence. Although, submissions were made urging me to doubt it.
The insurer relies upon the second marginal note to Road Rule 114 as imposing an obligation upon the claimant to slow down so as to give way prior to entering the roundabout. I reject this submission. First, because there is no requirement for the claimant to give way at the roundabout as there were no entry points for vehicles into the roundabout to the claimant’s right. Second, as is made plain by s 35(2)(c) of the Interpretation Act 1987 (NSW), a marginal note in an instrument shall not be taken to be part of the instrument, therefore it cannot operate to impose an obligation upon the claimant in any event.
The relevant question is whether the claimant has failed to take reasonable care for his own safety.
A reasonable cyclist in the claimant’s position would have slowed down prior entering the roundabout. Indeed, the claimant’s evidence is that he did slow down. His evidence was unchallenged. I accept his evidence that he was applying his handbrakes at the time he entered the roundabout, as this is apparently demonstrated by his immediate and controlled evasive action upon apprehending the insured driver entering the roundabout. I reject the insurer’s submission that the claimant effectively tried to outrun the insured vehicle. This is not a finding available upon any reasonable viewing of the Go Pro footage.
In the circumstances, I am not satisfied that the claimant failed to take the reasonable precautions that a reasonable person in his position would have taken for his own safety. Therefore, I find he that he was not contributorily negligent. Thus, the insurer is not entitled to reduce the amount of his statutory benefits.
Costs and disbursements
I am satisfied that the claimant is entitled to the payment of legal costs.
I allow costs in the sum of $1,826 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident.
(b) Effective date: This determination takes effect on 26 January 2021.
(c) Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.
Legislation
In making my decision I have considered the following legislation and guidelines:
· The Act;
· Motor Accident Injuries Regulation 2017;
· Interpretation Act1987 (NSW); and
· Road Rules.
0
3
0