Howell v QBE

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howell v QBE [2021] NSWPIC 386
CLAIMANT:	Orlagh Howell
INSURER:	QBE
MEMBER:	Elizabeth Medland
DATE OF DECISION:	13 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of statutory benefits after 26 weeks as claimant at fault; pedestrian accident on four lane roadway; claimant had crossed three lanes during heavy traffic and stepped into path of insured vehicle; Held – determined that the claimant was at fault and insurer entitled to cease statutory benefits after 26 weeks.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 5 May 2020. 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $900 plus GST. 5. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to the cessation of statutory benefits after 26 weeks arising from a dispute as to whether the injured person was mostly at fault in accordance with sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant suffered injuries in a motor vehicle accident which occurred on 5 May 2020. The claimant was a pedestrian crossing Blacktown Road, Blacktown NSW when she was hit by the insured vehicle.
The claimant subsequently lodged a claim with the insurer. The insurer apparently issued a notice dated 16 September 2020 denying liability for statutory benefits after 26 weeks due to a determination that the claimant’s contributory negligence was over 61%. In other words, the insurer found that the claimant was mostly at fault under sections 3.11 and 3.28.
The claimant subsequently made an application for internal review with the insurer. The internal review determination was issued on 18 January 2021 affirming the original decision.
An application was subsequently lodged with Dispute Resolution Services (now Personal Injury Commission). The application has been allocated to me for determination.
A teleconference was held on 14 July 2021 where both parties advised that no further evidence or submissions would be relied upon and that it was appropriate for the matter to be determined on the papers.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Accident circumstances

The accident site of Blacktown Road, Blacktown, involves a four lane main roadway, with two south bond lanes and two northbound lanes. The traffic is divided by double white lines.
At approximately 1.30pm the claimant, a pedestrian, crossed from the eastern kerb in a westerly direction, crossing both southbound lanes. The claimant had crossed lane two of the northbound lanes and the collision occurred with the insured vehicle in lane one of the northbound lanes.

Evidence provided by parties

The Application for Personal Injury Benefits dated 2 June 2020 contains the following version of events
“Crossed over to the midsection of the road. Waited and checked multiple times, walked out and suddenly a car travelling approx. 50km an hour was upon me. Felt the impact bounced off bonnet and was then thrown through the air and hit the road.”
The NSW Police incident report contains the following narrative:
“…the Pedestrian was walking from her address towards the Dan Murphys store located on Blacktown Road, Blacktown. This being her place of work with the Pedestrian expected to commence work at 2:00pm.
Blacktown Road is a main road consisting of two lanes of traffic travelling in both a Northerly and Southerly direction. The Road generally has high level of traffic with traffic crossing lights being located on the intersection of Blacktown Road, and Bungarribee Road.
At this time, the Pedestrian has proceeded to cross the road from the Eastern Kerb in a Westerly Direction. At the same time VEH1 was travelling in a Northerly direction in lane 1 of 2.
It appears the Pedestrian has failed to notice VEH1 and in doing so had proceeded to run across th road and the path of VEH1 resulting in the Pedestrian colliding with the front offside of VEH1. This has caused the Pedestrian to be thrown several metres onto the road way, with Driver1 and numerous witnesses stopping to render assistance.”
The NSW Police held the claimant to be responsible for the accident, however, no action was taken against either party.
The insured driver completed an accident report form dated 27 July 2020. It contains the following version of events:
“A Pedestrian crossed the road in the midst of the ongoing traffic. I jambbraked but could not avoid hitting the pedestrian.”
The form includes a note from the insured stating that a truck was travelling behind her that apparently had a dashcam. It is also stated that the insured was surprised to learn of the claim as the claimant was at fault.
The insurer obtained a factual investigation report from Verifact dated 8 September 2020. The report notes a pedestrian crossing was located between 100 to 150 metres away from the accident location.
Photographs and diagrams included with the report verify the description of the roadway as set out in the NSW Police report. There appears to be a good sight line at the accident location for oncoming vehicles in both a southerly and northerly direction.
Investigators obtained a statement from the claimant dated 13 August 2020. The claimant stated that the accident occurred around 1.20pm with her shift at Dan Murphy’s due to commence at 1.30pm with the journey from her home to her workplace taking seven minutes.
She stated that she had walked this journey for around twenty years. She stated that she looked to her right and there were no cars coming. She then walked across the two lanes to the centre of the roadway, looking left and right as she walked.
She stated that there was a small area in the centre of the road which has white painted markings. At paragraph 16 she then stated: “I got to the lane closest to the footpath when I suddenly noticed that there was a blue car that was so close. I knew that I was going to be hit. I think I was about in the centre of that lane.” At paragraph 36 she went on to state: “I don’t know how this accident happened. How did I not see that car. I cross this road all the time. She obviously didn’t see me because she hit me or it was too late regardless.”
The claimant stated that she did not have any alcohol or medication in the 12 hours prior to the accident.
Before me is a further statement of the claimant dated 3 February 2022 (presumably correctly 3 February 2021). This statement has further detail. From paragraphs 5 to 11 of that statement it reads:
“I was crossing the road heading towards my work, Dan Murphy’s, which is located at 80 Blacktown Road. I looked to my left and right and crossed the first half of the road where vehicles would be travelling in a south-easterly direction.
Once I crossed the road across that direction, I stopped to give way to vehicles travelling in the opposite direction.
The traffic in the lane immediately in front of me, being lane 2 of 2, was stopped and the cars were lined up coming from my left-hand side.
Lane 1 of 2 was clear. I looked to my left and a driver in a truck stopped, saluted me, and waved to say that I could cross and that the road was clear.
I crossed in-front of his vehicle and again looked to my left to ensure it was safe for me to proceed. The lane was clear, and I continued to cross the remainder of the road.
I was more than halfway across lane 1 of 2 when the insured driver collided into me.
I spoke to a customer of Dan Murphy’s who witnessed the accident and was in the car park at the time. She told me that the car had merged form the lane that contained stationary vehicles into the clear lane and collided with me.”
The Verifact report does not include a statement from the insured. The report indicates that the insured’s husband “would not agree” to his wife participating in an interview. It is not clear whether the insurer communicated with the insured further as to her obligations under the insurance policy.
Verifact conducted an interview with Leading Senior Constable Aaran Prior on 30 July 2020. A record of that interview is included with the report. Senior Constable Prior attended the scene of the accident after several calls from members of the public reporting the accident. When he arrived the insured vehicle (a blue Nissan hatchback) was in the left lane closest to the kerb and the claimant was laying on the ground two to three metres in front.
The Senior Constable described the traffic on the day as moderate.
A notebook version of events was obtained by the Senior Constable from the insured driver. After being asked what happened the insured driver is recorded to have said: “I was just driving on my lane, which was the first lane from the left. She just came in front of my car, and I screamed. I saw her hit my windscreen.”
The insured is recorded as stating she was travelling at around 50 km/h. She could not recall if there were vehicles in front of her. When asked if she braked before the collision she stated: “Everything happened so quickly. I braked and she hit the car.” When asked if she saw the claimant cross the road she is recorded stating: “No, it all happened very quickly.”
The investigators asked Senior Constable Prior if he spoke to witnesses to the incident and he stated that he had and confirmed the insured’s version of events. No statements were taken, and there was just a verbal exchange.
Another officer apparently obtained the details of the witnesses, and Senior Constable Prior did not have those details during the interview. It is not clear whether the insurer took any further steps to obtain those details. Clearly, further witness statements would have been of assistance.
Senior Constable Prior was questioned regarding the dashcam in the truck following behind the insured. He indicated that this was explored but the camera was not operating and apparently the SD card was removed.
The record of interview states that Senior Constable Prior obtained a verbal version of events over of the phone from the claimant. He described her memory as vague and he is recorded as stating: “Basically she said she was crossing the road. She was trying to get to work, which is at the Dan Murphy’s. And the next thing she remembers is she got hit by a car.”
The insured was given a breath test at the scene of the accident which returned a negative result.
The claimant had a blood sample taken at hospital and Senior Constable Prior is recorded as stating that the claimant had a 0.208 concentration of blood alcohol from such sample.
The claimant has included with her application a statement of an apparent witness, Valerie Walker, dated 15 February 2021.
Ms Walker stated that she had parked her car at Dan Murphy’s and witnessed the accident. She stated that there was a line of traffic on Blacktown road for the vehicles travelling in a North-Westerly direction. She stated that the claimant had crossed in front of a truck that was stationary in lane two of two. She then stated: “A blue vehicle, which was behind the stationary truck, abruptly merged into lane 1 of 2 and collided into Ms Howell as she was halfway across that lane.”

Submissions

The submissions lodged on behalf of the claimant suggest that the version of events provided in the NSW Police report should not be relied upon as the police officer did not witness the accident. It is then stated that therefore the police cannot say with any level of certainty which lane the insured was travelling along.
Referencing the police narrative that the claimant failed to notice the insured, the submissions refer to a photograph provided of the roadway which demonstrates that the “road is long, straight, and with no bends of [sic] curves that would have obstructed the claimant’s view from seeing the insured vehicle.”
The submissions then state that had the insured been travelling in lane 1 of 2 as she asserted to police, then the claimant would have “definitely” been able to see her vehicle travelling up Blacktown Road.
It is then stated that “it is shown that the claimant is a cautious and safe pedestrian as she waited until the truck that was in lane 2 of 2 had come to a stop, before proceedings in front of him.”
Referencing the statement of the witness, Ms Walker, it is submitted that the consistency of the version of events provided by the claimant and the witness should be accepted.
The submissions state that the claimant was very familiar with the traffic conditions at the stretch of roadway and as such she would have been “cautious” when crossing the road and ensured that she looked for oncoming vehicles. It is submitted that this “substantiates the claim that the insured driver could not have been travelling in lane 1 of 2.”
It is then submitted that the evidence supports the insured travelling in lane 2 of 2 and came to a stop in the traffic. It is then submitted that “seeing that lane 1 of 2 was clear, the insured driver has recklessly and abruptly changed lanes to avoid traffic, without keeping a proper look out for pedestrians, breaching their duty of car, and has subsequently collided into the claimant.”
It is submitted that if the insured driver had ensured the road ahead was clear the accident would have been avoided.
Written submissions relied upon by the insurer submit that there is no material that establishes or infers that at the point of time that the claimant emerged into the insured driver’s potential view; that there was sufficient time and space for the insured driver to observe, react and avoid the claimant.
It is submitted that in her statements the claimant does not state that she looked left before crossing the second lane. It is therefore submitted that had she done so she would have observed the insured.
The insurer submitted that the stationary line of traffic would have blocked the insured’s view of the claimant and whilst the height of the vehicles in the line of traffic is unknown it is noted that the claimant stated that she walked in front of a truck.
The photographs included in the Verifact report of the insured vehicle depicting the damage to the right hand corner and driver’s side windscreen is submitted to be consistent with the claimant taking very few steps into the lane before colliding with the insured vehicle.
The insurer submitted that the most likely version of events is that the claimant stepped out in the last left hand lane without keeping a proper lookout as if she had kept a proper lookout she would have noticed the insured vehicle.
It is also submitted that it is important that there was an available traffic light to cross the road at approximately 200 metres away.
The insurer submits that there was no reasonable opportunity for the insured to see the claimant as the claimant crossed in front of a truck which would have obscured the insured’s view.
It is submitted that the claimant should be found wholly at fault or in the alternative that the claimant’s contributory negligence is greater than 61% rendering her mostly at fault under the MAI Act.
In respect of the claimant’s blood alcohol level it is submitted by the insurer that no exculpation allowance should be made for the claimant’s intoxication relying upon the Court of Appeal decision in Serrao (by his Tutor Serrao) v Cornelius (no. 2) [2016] NSWCA 231

Reasons

It appears to be uncontroversial that the claimant was in lane 1 of 2 when the accident occurred. Having traversed both southern bound lanes and lane 2 of the northern bound lanes.
The claimant in her statement of 3 February 2022 (should be 3 February 2021) states from paragraph 8 that a truck stopped in lane 2 of 2 of the northbound lanes, that he waved to her to cross. She then proceeded to cross in front of the truck.
I make a factual finding that the claimant did proceed to walk across lane 2 of 2 in front of the stationary truck. In this regard, I note the account of witness, Valerie Walker, is consistent with such finding.
I am not, however, sufficiently persuaded by the claimant’s assertion in her statement of 3 February 2022 that she looked to her left before stepping beyond the truck and into lane 1 of 2. In this regard, I note in her earlier statement to investigators she stated that she didn’t know how the accident happened or how she did not see the car. Moreover, the version recorded by police is that she was walking to her employment and the next thing she remembers is that she was hit by a car. I find that if she had in fact looked to her left, or if she remembered looking to her left, then she would have told the police and investigators as such.
There exists some uncertainty as to whether the insured vehicle was travelling in lane 1 for sometime or had instead moved from lane 2 from behind the truck and in to lane 1 before the accident occurred. On balance, given the account of the witness, Valerie Walker, I am persuaded that the insured more likely than not moved from behind the truck into lane 1. I make this finding as the statement of the insured is not sufficiently detailed to determine for how long she was travelling in lane 1.
However, moving from behind the truck and into lane 1 does not of itself translate to any liability of the insured for the accident occurring.
As detailed by the NSW Police the subject stretch of roadway has a high level of traffic. The claimant herself acknowledges that there was a line of stationary traffic in lane 2, suggesting a high volume of traffic.
I find that a reasonable person in the position of the claimant would not have chosen to cross the roadway at the point that she did given the high volume of traffic, and the fact that a pedestrian crossing was available within a reasonable distance.
Whilst it is submitted on behalf of the claimant that because she had walked the path for many years that she would have been careful, I find that it is just as likely, if not more likely, that a person who habitually walked such path would be less careful than a person who was not familiar with the roadway. I therefore reject such submission.
Whilst the submissions on behalf of the claimant suggest the insured’s movement from lane 2 to lane 1 was abrupt and reckless, I decline to make such finding. I consider that it was reasonable to move lanes when the adjacent lane was free from traffic.
I find that the insured would not have seen the claimant walking in front of a truck, given that the truck would have obscured the view of the roadway immediately ahead of it.
I do not accept the submission or contention of the claimant that the collision occurred as she was halfway across lane 1. In this regard, the photographs of the insured vehicle show damage to the front driver’s side of the vehicle, which suggests the claimant would have only travelled a very short distance into the lane before the collision occurred. This is also consistent with the insured’s version to police where she states that she did not see the claimant, that it all happened very quickly.
In summary, I therefore find that the most likely version of events on the evidence before me is that the claimant walked in front of a stationary truck in lane 2, that she stepped into lane 1 without keeping a proper lookout. I further find that the insured had moved to lane 1 and proceeded along the lane when the claimant suddenly appeared from in front of the truck into lane 1 leaving no time for the insured to avoid the collision. I find the insured did not have sufficient time to react to the presence of the claimant on the roadway, when she first became reasonably visible to her, to avoid the collision.

I do not consider the insured would be reasonably expected to anticipate the presence of pedestrians at the position the collision occurred given the busy nature of the roadway and the available pedestrian crossing at a relatively short distance. It is not reasonable to expect a driver to anticipate all possibilities when driving (Mobbs v Kain [2009] NSWCA 301). There is no evidence that she was travelling at an excessive speed. I have also found that the insured could not have reasonably seen the claimant walking across lane 2. I am therefore not persuaded that the insured was not keeping a proper lookout.
On the evidence available to me, and the factual findings above, I find no fault of the insured driver in respect of the accident.
Given the above, it follows that I find that the claimant failed to take reasonable care for her own safety. I therefore consider that she was at fault for the accident.

Costs and Disbursements

68. The claimant's solicitors have submitted that costs be awarded at the maximum regulated amount.

69. There are no submissions on behalf of the insurer in respect of costs.

70. Under Schedule 2(3)(g) of the MAI Act, this dispute is declared to be a miscellaneous claims assessment matter.

71. Under Schedule 1(3)(1) of the Motor Accident Injuries Regulation 2017 (the Regulation), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.

72. I have found against the claimant. However, I do not consider it wholly unreasonable that the dispute was pursued given the divergence in the version of events.

73. I however decline to award costs at the maximum regulated amount. Submissions have been prepared and a witness statement obtained on behalf of the claimant.

74. Utilising my discretion, I award an amount of $900 plus GST for costs.

75. I am satisfied that the claimant is entitled to the payment of legal costs.

76. I allow costs in the sum of $900 plus GST.

77.

Conclusion

78. My determination of the Miscellaneous Claim is as follows:

79. For the purposes of section 3.11 the motor accident was not caused by the fault of another person

80. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person

81. Effective Date: This determination takes effect on 5 May 2020.

82. Legal Costs: The amount of the claimant’s costs assessed in accordance with the the Regulation is $900 plus GST.

Legislation

83. In making my decision I have considered the following legislation and guidelines:

· MAI Act, and
· the Regulation.

Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission

[2021] NSWPIC 386

13 September 2021