Hlaihel v AAI Limited t/as GIO
[2022] NSWPIC 510
•13 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Hlaihel v AAI Limited t/as GIO [2022] NSWPIC 510 |
| Claimant: | Nabiha Hlaihel |
| insurer: | AAI Limited t/as GIO |
| Member: | David Ford |
| DATE OF DECISION: | 13 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Whether for the benefit of the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the 2017 Act) the motor accident was caused mostly by the fault of the injured person; the claimant was a pedestrian attempting to cross Waterloo Road at Greenacre when she was struck by a motor vehicle being driven by the insured driver; claimant initially provided statements that she had no recollection of the accident at all but subsequently made a further statement claiming she looked to her right for oncoming traffic prior to stepping out onto the roadway; the insured driver stated the claimant was about 2 metres in front of the insured vehicle and was walking in a manner as she was crossing the road with her back turned on oncoming traffic; determined the insured driver had no opportunity to brake or swerve or avoid colliding with the claimant as she attempted to cross the road; Held – for the purposes of section 3.11 and 3.28 of the 2017 Act the motor accident was caused mostly by the fault of the injured person. |
| determinations made: | 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 13 September 2022. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is assessed at the maximum regulated fee. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of s 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
This is a dispute between Nabiha Hlaihel (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant seeks to challenge the determination.
On 2 October 2021 the claimant was attempting to cross Waterloo Road at Greenacre when she was struck by a motor vehicle being driven by the insured driver. As a consequence of the accident the claimant sustained the following injuries:
(a) fracture to the left leg;
(b) fracture to the left ankle;
(c) head injury, and
(d) psychological.
The insurer undertook an internal review in their Statement of Reasons dated
26 April 2022, the insurer considered the claimant mostly at fault and assessed the claimant’s contributory negligence at 70%, and after 26 weeks, their weekly payments under ss 3.11 and 3.28 were ceased.The claimant submits she was not mostly at fault in the motor vehicle accident, and she is entitled to continuation of statutory benefits. She has now filed this application seeking a determination of the dispute with the insurer.
Documents considered
I have considered the documents provided in the application and the reply. I also acknowledge subsequent receipt of a Government Information (public access) Act 2019 decision (GIPA), dated 28 July 2022.
Claimant’s submissions
The insurer submits the motor accident was caused mostly by the fault of the claimant as she commenced to cross Waterloo Road and failed to look to her right to see whether there was any oncoming motor vehicles and accordingly, she stepped out in front of the motor vehicle being driven by the insured driver and as a consequence, did not allow the insured’s driver any opportunity to take evasive action to avoid the collision.
In the Application for Personal Injury Benefits (document A4) the claimant on page 11 has stated as follows:
“Question – In your own words, please describe or draw, the motor vehicle accident you were involved in?
Answer – I was a pedestrian walking along Waterloo Road, and as I crossed the road, I was hit by motor vehicle registration CTE59D.”
In a signed statement dated 8 November 2021 the claimant states the following:
“13) I do not remember the accident at all
14) I am not sure how long we were walking for but we had finished and we were leaving the park to come home. I don’t remember if we were still in the park or we had left the park but I blacked out. I don’t know anything about what happened.”
The claimant provided a further statement dated 20 June 2022 (document AD1) where she states the following:
“7) I remember getting to the area where I was going to cross the road at Waterloo Road which is where there is a pedestrian refuge island. There were many cars parked on either side of the road. I looked to make sure there was no traffic and stepped out onto the road to start crossing, but I do not remember anything else after that until I woke up at Liverpool Hospital. It was then I was told what had happened to me in that I had been struck by a car whilst crossing Waterloo Road.”
The solicitor for the claimant also served a statement of Ms Feryal Fahmi dated
30 June 2022 (AD2). In her statement Ms Fahmi confirms that just prior to the accident she had been walking home with the claimant and they were both walking along the footpath on Waterloo Road and needed to cross the Road. Ms Fahmi states at paragraph 9 the following:“9) I continued to walk along the footpath, intending to cross the road a little further ahead of Mrs Hlaihel.
10) I recall that there was a pedestrian refuge island in the middle of the road.
11) I heard a loud bang, I turned around and saw Mrs Hlaihel was hit and thrown by a car onto the road near the island. At no point did I try and pull Mrs Hlaihel away from an oncoming car. I was not aware there was an accident until I heard the bang. I did not hear any car beep their horn.
12) I screamed and ran to her side.”
I refer to the claimant’s submissions dated 6 June 2022 and I note their following submissions:
(a) the insured driver failed to keep a proper lookout; should have slowed the speed of the vehicle down as there was a need to take greater care where there were persons in parked cars on the side of the road and oncoming traffic on the right side;
(b) there was a foreseeable risk to other pedestrians including children knowing there was a park on the side of the road and furthermore because of the parked cars at the side of the road, the insurer driver should have been aware that a pedestrian’s view could have been obstructed and therefore the insured driver should have proceeded with added caution;
(c) since the claimant was struck on the driver’s side of the vehicle, the claimant would have been halfway across the left side of the roadway, and
(d) since there was a refugee island warning sign, the insured driver should have observed there was a possibility pedestrians will be crossing ahead and also that the insured driver should have taken a greater level of caution and care because of the fact she was approaching a pedestrian refugee island. The solicitor for the claimant then makes reference to a number of case law to assist me determining my reasons.
Insurer’s submissions
I refer to the comprehensive submissions of the insurer (document R1) dated
12 July 2022. It is submitted the claimant was about 2 m in front of the insured driver’s vehicle and was walking in the manner as she was crossing the road with her back turned on oncoming traffic. I refer to the statement of the insured driver who makes reference to a woman standing next to the claimant. As soon as the insured driver saw the claimant she braked and beeped her horn. I refer to paragraph 31 of the insured’s driver statement:“31) As soon as I saw her, I braked, and I beeped at her. The lady just stopped in the middle of the road I can’t remember if she turned around, but I remember the other lady tried to grab her off the road but when she saw how close I was she moved out of the way. I couldn’t swerve to the left because there were people and other vehicle parked down further and I couldn’t swerve to the right because I would have hit the oncoming vehicles.”
Furthermore, a front seat passenger in the motor vehicle driven by the insured’s driver also provided a statement to the police as follows:
“At 5:30pm on 2 October 2021 I was in the front seat passenger seat of my girlfriend’s car. We were doing 50km down Waterloo Road. I saw a group of people, which is when we slowed down. And, as soon as we got close, the lady stepped out on the road. She was only about 1 metre away, we beeped, but it was too late, and she got hit. We stopped straightaway to check if she was ok.”
There was also a further statement from a witness which was provided to the police, a Mr Bassel Watfa who states as follows:
“I was driving up this way towards Greenacre shops and that Toyota Corolla was driving the opposite direction, upon approaching the intersection, the old lady that’s on the floor walked between two cars onto the road and that’s hit her was driving this way and they’ve, sort of stepped out onto the road thinking its safe to do so, the cars hit her. But the car wasn’t speeding it was just doing normal speed.”
There is a further statement from a witness a Mr Moustafa Alsam who states as follows:
“I was looking, just looking around I was seeing that old lady I was just standing here, right here I was just about to walk and looking right and seen that old lady. She just walked straight, and she got hit by a car. I don’t think she was aware like it think she just crossed without even looking really.”
He estimated the insured driver’s speed at no more than 50km.
The insured driver also provided a statement to the police as follows:
“I was driving southbound down Waterloo Road. As I approached the island on Waterloo Road at Greenacre, in front of Roberts Park, a lady walked in front of my car I did not notice her before that. But noticed she did not look left or right before stepping out on the road. When I noticed her, I immediately braked my car. The lady then tried to run off the road.”
Reasons
Was the accident mostly by the fault of the claimant?
The onus of proving contributory negligence rests upon the insurer and deciding whether the claimant was guilty of contributory negligence, I must have regard to the standard of care set out in section 5R of the Civil Liability Act 2002.
Having regard to the statements of the insured driver and the statements of the various witnesses referred to in the insurer’s submissions, I find the insured driver had no opportunity to brake or swerve or avoid colliding with the claimant as she attempted to cross the road.
I find the claimant commenced to walk across Waterloo Road and failed to look to her right to see if there were any oncoming motor vehicles, and if she had looked, she would have clearly seen the motor vehicle being driven by the insured driver and would not have stepped out in front of the oncoming motor vehicle.
I also note the claimant in her Application for Personal Injury Benefits clearly states she had no recollection of the accident and since then, has attempted to submit statements which may assist her claim however, I do not accept her statement dated 20 June 2022 wherein, she sates she “looked to make sure there was no traffic”.
Furthermore, I do not find the statement of Ms Fahmi is of assistance to the claimant in her claim and I further note Ms Fahmi states she was not standing alongside the claimant, immediately prior to the claimant being hit by the insured vehicle, despite an independent witness stating she was in fact standing next to the claimant. In any event, the statement of Ms Fahmi is of no assistance in making a finding in favour of the claimant.
Accordingly, I find the motor vehicle accident was caused mostly by the fault of the claimant.
Costs and disbursements
The insurer submits in their submissions dated 12 July 2022 (document R1) they agree the solicitor for the clamant is to be awarded regulated legal costs.
Therefore the claimant is entitled to costs having regard to s 8.8 of the MAI Act and Schedule 1, Part 1 s 3 of the Regulation.
I am satisfied that the claimant is entitled to the payment of regulated legal costs.
Conclusion
My determination of the Miscellaneous Claim is as follows:
For the purposes of s 3.11 of the MAI Act, the motor accident was caused mostly by the fault of the claimant.
For the purposes of s 3.28 of the MAI Act, the motor accident was caused mostly by the fault of the claimant.
Effective Date: This determination takes effect on 13 September 2022.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020 is assessed at the maximum regulated fee.
Legislation
In making my decision I have considered the following legislation and guidelines:
(a) the MAI Act;
(b) Motor Accident Injuries Act Regulation 2017;
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.
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