Kelly v Allianz Australia Insurance Limited
[2024] NSWPIC 108
•8 March 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kelly v Allianz Australia Insurance Limited [2024] NSWPIC 108 |
| CLAIMANT: | Zara Kelly |
| INSURER: | Allianz Australia Insurance Limited |
| SENIOR MEMBER: | Williams |
| DATE OF DECISION: | 8 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether accident caused wholly or mostly by the fault of the claimant; disputed facts; claimant was a pedestrian; collision with trailer being towed by a vehicle; claimant’s case was that the vehicle and trailer had cut a corner and collided with her; insurer’s case was that the claimant was intoxicated and walked into the trailer; Held – the claimant stepped or stumbled backwards into the trailer after the vehicle towing it had passed her; claimant had failed to exercise reasonable care; there was no fault on the part of the driver, who was driving carefully and to the prevailing conditions; the accident was caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 18 March 2023 was caused wholly by the fault of the claimant. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 18 March 2023 was caused wholly by the fault of the claimant. 3. A statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
BACKGROUND
Zara Kelly (claimant) was injured in a motor accident at Rose Bay on 18 March 2023 (accident). Following the accident she made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer), the insurer of the vehicle involved in the accident.
By notice dated 18 April 2023 the insurer accepted liability for the claim for up to 26 weeks after the accident. Liability for the claim after 26 weeks was denied by the insurer in notices dated 10 July 2023 and 11 September 2023.
The 10 July 2023 notice refers to Part 5 of the MAI Act, and states that the accident was “a no fault accident”. Contributory negligence of 80% was alleged, and a finding made, for the purposes of s 3.11 and s 3.28 of the MAI Act, that the accident was caused mostly by the claimant’s fault. The 11 September 2023 notice is in similar terms.
The claimant sought an internal review of the insurer’s decision to deny liability for her claim. On 11 August 2023 an internal reviewer issued a certificate of determination. The internal reviewer affirmed the insurer’s decision that the claimant’s contributory negligence was 80%.
The claimant disputes the insurer’s decision to deny liability for her claim. She referred
the dispute to the Personal Injury Commission (Commission) for assessment under sub-division 3 of Div. 7.6 of the MAI Act. The disputes about whether the accident was caused wholly or mostly by the fault of the claimant are miscellaneous claims assessment matters: Sch 2 cl 3(d) and (e).At the preliminary conference held on 18 October 2023 I advised the parties that Part 5 of the MAI Act did not apply to a claim for statutory benefits. Sections 5.2-5.6 of the MAI Act make it clear, in terms, that they only apply to a claim for damages[1].
[1] Amendments to Part 5 of the MAI Act made by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 (Sch 1.2[19]-[23]) removed references to “statutory benefits” from Part 5.
On 9 November 2023 the insurer issued an “amended liability notice”. Among other things, the notice records the insurer’s determination that “[t]he motor accident was not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle”, and that the insurer had determined that the claimant was “wholly at fault for this accident”.
In this way, the insurer has refined the basis for its decision to deny liability for the claim in accordance with s 3.11 and s 3.28 of the MAI Act. That being the case, I am satisfied that an internal review of the insurer’s “amended liability notice” was not required in order to vest the Commission with jurisdiction to determine the disputes; the substantive disputes about whether the accident was caused wholly or mostly by the fault of the claimant were already before the Commission for determination. Neither party argued to the contrary.
ON THE PAPERS
The parties agree that the proceedings can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2, I have concluded that the matters that arise in the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
EVIDENCE
The evidence relied on by the parties is contained in a joint bundle. I have considered all the material contained in the joint bundle, including photographs of the claimant’s injuries, the trailer being towed by Mr Hawley’s vehicle when the accident occurred, and photographs of the accident scene.
Police records
Sergeant Gregg was in the vicinity of Rose Bay wharf, attending to other matters, prior to the accident occurring. His notebook has been produced in response to a direction for production. No witness accounts of the accident are recorded in the notebook. The Sergeant prepared the “Narrative Details” in the COPS report. The report records that the accident occurred at 5.00pm. The narrative records relevantly as follows:
“...
The pedestrian, Zara KELLY left a party boat, heavily intoxicated. At this time Thomas HAWLEY was driving his motor vehicle…out of the ramp, having dropped a boat into the water and was moving out of the ramp, towing the boat trailer…out.
He was travelling at a slow pace, as numerous people had alighted from several party boats at the time. He was travelling at less than 5km/h as the [p]edestrian was walking over the roadway, failing to see the trailer. She walked into the pedestrian side wheel of the trailer, which knocked her down and dragged her onto the ground.
The vehicle immediately stopped and occupants spoke with KELLY making sure she was ok…
KELLY was clearly intoxicated and sustained visible superficial injuries to her legs…”
The COPS report records that the narrative was created on 30 March 2023, 12 days after the accident occurred. The report appears to have been created after the claimant sent an email to Sergeant Gregg on 27 March 2023 requesting a “police evidence number”.[2]
[2] In an email to the claimant dated 29 March 2023, Sergeant Gregg recorded that he would “complete a report shortly”.
Hospital and medical records
Clinical records from St Vincent’s Hospital (Hospital), record that the claimant presented at the Hospital at 9.32pm on the day of the accident, and was subsequently admitted on 19 March 2023 at 2.21am.
A “Trauma Response Form” records, under the heading “Mechanism of Injury: “Car v Ped @ 1730 X unknown speed”.
Under the heading “Results”[3] the following is recorded:
“Pt intoxicated, no recollection of events…”
[3] Joint Bundle page 169.
An “Emergency Nursing Assessment” dated 18 March 2023 contains the following history:[4]
“pt hit by car at unknown speed – pt amnesic to events, states bystanders witnessed pt go over bonnet + land in trailer…”
[4] Joint Bundle page 174.
Progress notes recorded on 19 March 2023 state: “24F hit by car while intoxicated. [A]mnesic to events…”
The clinical pathology results record that at 10.13pm on 18 March 2023 the claimant’s blood alcohol content was 0.14%.[5]
[5] Joint Bundel page 206.
The clinical notes of Dr Ricketts contain the following history taken on 22 March 2023:
“… car crash on weekend…
4 cans beer drunk prior
Flipped into trailer and knocked out at time…”
The claimant’s evidence
In an Application for Personal Injury Benefits dated 30 March 2023 the claimant described the accident as follows:
“I was standing at Rose Bay wharf, when I was hit by a trailer, which was being towed by the motor vehicle.”
There is an unsigned statement from the claimant taken by an investigator instructed by the insurer on 27 April 2023. Among other matters, the statement records that: prior to the accident she had been on a harbour cruise on a yacht for St Patrick’s Day; the cruise went from 10.00am to 4.00pm; the yacht returned to Rose Bay wharf between 4.00pm and 4.30pm; there had been seven different boats involved in the St Patrick’s Day celebrations; there were about three hundred people getting off boats at the wharf; that it was “extremely busy and chaotic”; and people were standing in the car park and surrounding area. The statement records that there were “fights going on in the car park and all sorts of commotion, it was mayhem.”
The unsigned statement records that the claimant consumed four cans of “Lime seltzers alcoholic drink”, and that she was “not intoxicated or feeling drunk at all”.
The statement records that the claimant was standing near the “footpath/kerb” on the corner of New South Head Road and the Rose Bay wharf car park area, and that: “[t]here was so much going on and so many people standing around everywhere near me in that car park and all over the surrounding area.” The statement records that the claimant did not recall anything after “standing on the corner”. She then recalled being lifted out of the “trailer/tyre” near the corner where she had been standing.
It is recorded that the claimant “vaguely recall[ed] the motion of being dragged along the ground and the sound of people shouting out for the car to stop.” At [30] of the draft statement it is recorded that she “really wasn’t sure what had happened and was still quite confused.” There are details of her attendance at Hospital, treatment and investigations. There is also reference to what Mr Tuite had told her about the accident.
While the statement is unsigned, I accept that it accurately records what the claimant told the investigator.
The claimant has provided a signed statement dated 17 November 2023. The statement records that on the day of the accident the weather appeared fine and sunny. She had attended a St Patrick’s Day cruise that went from 10.00am to 4.00pm. The boat returned to the wharf between 4.00pm and 4.30pm. She states that after returning to the wharf, there were several boats returning, with hundreds of people disembarking at the wharf. “It was very busy and chaotic” as the patrons were celebrating St Patricks Day.
The claimant states that “in the time before the accident, [she] had only consumed around four cans of a Lime seltzer alcoholic drink.” She states that she was not intoxicated, did not “feel drunk”, and was “well aware of [her] surroundings.”
At [13] the claimant states:
“…There were many people, a lot was going on around me and the surrounding area. I recall standing on this corner and facing towards the water with my back facing towards the carpark when I felt a sudden and significant hit to the left-hand side of my body…I don’t recall anything after that moment….”
The claimant recalled being lifted out of a trailer/tyre by a lifeguard near the corner where she had been standing, and could “vaguely recall” being dragged along the ground and people shouting for a car to stop. She states that she was “advised” that a car towing a boat trailer had hit her and that she was “dragged along”.
As with the draft statement, the claimant’s signed statement records details of her attendance at Hospital, investigations, injuries, and subsequent treatment. As with the unsigned statement, she also records what Mr Tuite told her about the accident. At [26], she makes what amount to submissions about “fault”.
There are photographs that depict the claimant’s injuries attached to the statement.
Mr Hawley’s evidence
There is an unsigned statement of Mr Hawley. The statement records that it was taken by an investigator appointed by the insurer on 17 May 2023. There is also a signed version, dated 30 September 2023, that is in the same terms as the draft. It is to the signed statement that I will refer.
Mr Hawley states that prior to the accident he had been driving east on New South Head Road, Rose Bay, and then turned left into Rose Bay wharf. He was towing a 15-foot “very lightweight boat trailer” that was mainly designed to tow very small “rubber ducky” type boats. The weather was fine and the roads were dry. He recalled that after turning into Rose Bay wharf at between 4.00pm and 4.30pm, he was travelling “very very slowly” as there were people “everywhere, standing all over the roadway and the car park”. He states that he edged very slowly forward because of all the people standing around. He stated that “it was quite obvious most of the people were very loud and intoxicated”. Mr Hawley described “stopping and starting and [coming] to a complete stop a number of times, and going extremely slowly as there were so many people on the Rose Bay wharf road.”
He estimated travelling at between 2-5kmph when he heard some yelling for him to stop. He looked back and saw that a female had fallen into the boat trailer. After alighting his vehicle he saw that the claimant had fallen into the trailer. He stated that “it became immediately obvious she was extremely intoxicated”, and later that “she was very drunk”. Mr Hawley stated that there were many drunken people around, there was “yelling and carrying on”, and that “it was absolute chaos”.
Mr Hawley expressed the opinion that the claimant was extremely intoxicated, was not paying attention or looking at the roadway, was facing backwards away from the roadway, and had stepped backwards and fallen into the trailer. The accident was, in his opinion, “totally her fault”.
In a further statement dated 11 December 2023, Mr Hawley explained that the trailer he was towing on the day of the accident was approximately “12 foot”, extremely lightweight, and follows the tread of the tyres very closely, as it is short and narrow.
He stated that at the time of the accident, he was driving straight, past the ramp so he could reverse down the ramp. He states that he did not drive the car up either the gutter or the footpath, that the trailer did not go up either the gutter or the footpath, and that he was driving “straight at the time”. Mr Hawley states that he did not see the claimant until he turned around after he had stopped his vehicle. When he did see her, she was in a sitting position on the road but in the trailer. He postulated that, given the position that he saw her in, the claimant “must have fallen backwards as she was facing the water.” Mr Hawley denied that his car or trailer were anywhere near the footpath, as there were “so many people on the footpath and surrounds.”
Attached to his statement is a photograph depicting the roadway, the wharf, and the boat ramp. Mr Hawley has sketched on the photograph the position of his vehicle and the trailer.
Mr Tuite’s evidence
Mr Tuite provided a signed statement dated 20 November 2023. He states that he had been on a cruise to celebrate St Patrick’s Day, and that he was a witness to the accident. He states that after disembarking from the yacht, he was walking behind the claimant with a friend. He states that the claimant “did not seem intoxicated”, and that they “were all very much aware of [their] surroundings and were not drunk”.
Mr Tuite states at [10]:
“We were walking towards the footpath and there was a one-way road that goes into the car park where there is a boat ramp. We were on a corner on the footpath when a black BMW which had a boat trailer attached to the back took the corner too tightly. The vehicle was parallel with Zara and was on her right but Zara was looking towards the left with her back facing towards the carpark. The BMW turned as he went past Zara, though as it appeared to be a tight turn, the trailer cut the corner causing it to hit Zara, knocking her down and dragging her along the road way for a few metres.”
SUBMISSIONS
Claimant’s submissions
The claimant relies on updated consolidated written submissions. Her case is that:
(a) the insurer has failed to discharge the onus it carries of proving that the accident was caused wholly or mostly by her fault and/or that she contributed to the accident;
(b) Mr Tuite’s evidence “should be given greater weight as it is a first-hand account of what happened” and is consistent with the available contemporaneous evidence of the claimant (said to be the description of the accident she provided in the Application for Personal Injury Benefits);
(c) Mr Hawley’s evidence as to how the accident occurred was “questionable” given he did not see her until after the accident had occurred;
(d) the “injury pattern” is consistent with the evidence that she was standing on the footpath with her back facing towards the car park;
(e) she did not place herself in a position of risk;
(f) while she may have been intoxicated, her intoxication was “not the primary cause of the accident”;
(g) the primary cause of the accident was Mr Hawley’s failure to keep a proper look out and heed the presence of pedestrians;
(h) the accident was caused neither wholly nor mostly by her fault, and
(i) where it is not possible to decide whose account is to be preferred, the controversy should be resolved in her favour.
Submissions are also made with respect to costs.
Insurer’s submissions
The insurer relies on written submissions dated 15 February 2024. The insurer argues that there was no fault on the part of Mr Hawley, and that the accident was caused wholly by the fault of the claimant. In the insurer’s submission, the accident occurred when the claimant failed to keep a proper lookout and take care for her own safety, and moved into the nearside trailer wheel of Mr Hawley’s very slow moving trailer, while heavily intoxicated, causing her to fall backwards into the trailer.
The insurer disputes the claimant’s evidence that she was standing on the corner of New South Head Road and Rose Bay Wharf car park area, and submits that the accident occurred at the top of the boat ramp. The insurer disputes the claimant was “standing” when struck and submits that she walked forward into the trailer.
The insurer submits the claimant’s memory of where the accident occurred was likely impaired by her “heavy intoxication”. At [56], the insurer refers to the evidence it relies on in relation to the claimant’s intoxication. That material includes the COPS report, the Hospital notes that include the toxicology results, and Mr Hawley’s evidence.
The insurer submits that the evidence is inconsistent with the claimant’s account that she had consumed four cans of alcoholic lime seltzer, was not drunk, and was not feeling drunk.
Further, the insurer argues that given the blood alcohol reading of 0.14% at 10.13pm on the night of the accident, and that some hours had passed since the blood alcohol test and the claimant’s last alcoholic drink, her blood alcohol concentration at the time of the accident was (based on the calculations at [63] of the insurer’s submissions) approximately 0.23%.
The insurer submits the statement of Mr Tuite should be given no weight at all, in circumstances where he alleged the “boat trailer attached to the back took the corner too tightly”, a fact that is disputed as there was no corner turned. The insurer’s case is that Mr Hawley travelled slowly in a straight line past the top of the boat ramp. The insurer disputes that either the vehicle or the trailer took “the corner too tightly”, disputes the vehicle “turned”, disputes there was “a tight turn”, and disputes the “trailer cut the corner”. The insurer argues that Mr Tuite “was more likely equally as intoxicated as the claimant at the time and has reconstructed what he thought may have happened” and that “[e]ither way, his version is factually incorrect with the scene” when compared to the diagram provided by Mr Hawley.
The insurer argues that neither the claimant nor Mr Hawley can give evidence as to how she came into collision with the boat trailer.
The insurer points to:
(a) the evidence that Mr Hawley was travelling at a speed of less than 5km/h when the accident occurred;
(b) the narrative in the COPS report that “the claimant walked into the pedestrian side wheel of the trailer”;
(c) the tyre mark on the claimant’s left leg, at the front of her shin, and
(d) the photographs of the bruises on the front of the claimant’s left leg.
The insurer submits the claimant’s left leg moved into the moving trailer tyre, which caused her to twist and fall backwards into the trailer, consistent with the abrasion over her left scapula. The insurer argues that a finding should not be made that the claimant was facing backwards away from the roadway and stepped backwards falling into the boat trailer, as alleged by Mr Hawley. This is because, the insurer argues, he did not see the claimant before being alerted to her presence in the trailer.
In the insurer’s submission, the accident was caused wholly by the claimant’s fault because she:
(a) failed to take reasonable care of her own safety in attempting to cross the road when it was not safe to do so;
(b) placed herself in a position of danger while intoxicated by not crossing with care or at a designated pedestrian crossing;
(c) failed to keep a proper lookout;
(d) moved into the path of an oncoming trailer after allowing the oncoming vehicle towing the trailer to pass;
(e) failed to ensure her presence on the roadway was known to the insured driver, and
(f) attempted to cross the roadway whilst her ability to do so was affected by consumption of alcohol.
While the insurer’s primary case is that the accident was caused wholly by the fault of the claimant, it argued in the alternative that her contributory negligence was “high” and no less than 80%. That being the case, the accident was caused mostly by her fault.
FINDINGS
As recorded earlier, these proceedings have been determined on the papers. The insurer did not require either the claimant nor Mr Tuite for questioning. The claimant did not require Mr Hawley for questioning. No oral evidence was given.
Neither the claimant nor Mr Hawley were able to give direct evidence as to how the claimant and the trailer came into contact. Mr Tuite’s evidence is that Mr Hawley’s vehicle “took the corner too tightly”, and that as it passed the claimant on her right, the trailer “cut the corner” causing it to hit the claimant, knocking her down and dragging her along the roadway. His evidence is that the claimant was looking towards her left, with her back facing towards the car park.
The insurer argues that Mr Tuite’s statement should be given no weight at all because: his evidence conflicts with that of Mr Hawley; he was “likely equally as intoxicated as the claimant”; and he has reconstructed events.
True it is that Mr Tuite had been on the same St Patrick’s day cruise as the claimant; a cruise that commenced at 10.00am and concluded at 4.00pm. While it seems likely that Mr Tuite consumed alcohol on the cruise, there is no evidence before me as to the type of alcohol, or the quantity of alcohol, he consumed. That being the case, I do not accept the insurer’s submission that his statement should be given no weight because he was intoxicated at the time the accident occurred. I do, however, consider it more likely than not that he had consumed some alcohol while he was on the six hour St Patrick’s Day cruise, and that his alcohol consumption may have affected the reliability of his recollection of events.
I accept the insurer’s submission that the claimant was under the influence of alcohol when the accident occurred. I also accept that when the accident occurred, her blood alcohol content was higher than when tested at Hospital some six hours later. I am not, however, prepared to find that the claimant’s blood alcohol content was approximately 0.23% in the absence of expert evidence. I am satisfied on balance, and I find, that at the time the accident occurred the claimant’s blood alcohol content was higher than the 0.14% reported at 10.13pm.
Further, that the claimant was intoxicated was recorded by Hospital staff and Sergeant Gregg. I consider that the Hospital staff and Sergeant Gregg were in a position to express an opinion that the claimant was intoxicated based on their professional knowledge and experience, and their observations of her. I accept those opinions; they are supported by my findings as to the claimant’s likely blood alcohol content when the accident occurred.
The claimant’s unsigned statement records at [15] that she was “standing on the corner of New South Head Road and the Rose Bay wharf car park area…near the footpath/kerb.” It also records at [17] that she could “recall standing on the corner”. In her signed statement at [13], the claimant stated that prior to the accident she was standing on the footpath on the corner of New South Head Road and the Rose Bay wharf car park area. She states that she recalled “standing on this corner and facing towards the water with my back facing towards the car park…”. Mr Tuite’s evidence is that they “were on a corner on the footpath”.
Attached to Mr Hawley’s further statement dated 11 December 2023 is a still photograph on which he has drawn his vehicle and trailer. I am satisfied that the photograph depicts the accident scene.
In the absence of expert evidence I am not prepared to make findings, on the balance of probabilities, with respect to inferences or conclusions that may be drawn from the claimant’s physical injuries. For this reason, I do not accept the insurer’s submissions as to the findings it says should be made on the basis of the claimant’s injuries.
I find that immediately prior to the accident, the claimant was looking left, facing towards the water, with her back to the carpark and oncoming traffic, including Mr Hawley’s vehicle. This finding accords with the claimant’s evidence, Mr Tuite’s evidence, and Mr Hawley’s opinion that the claimant was facing backwards away from the roadway.
I accept Mr Hawley’s evidence that neither his vehicle nor the trailer moved onto or mounted the gutter or footpath. If either his vehicle or the trailer had moved onto or mounted the gutter or footpath, I am satisfied that he would have been aware that this had occurred; he would have heard it, felt it, or both. Further, while Mr Tuite stated that Mr Hawley “took the corner too tightly”, and that the trailer “cut the corner”, he did not state that either the vehicle or the trailer mounted the kerb or footpath.
I find that immediately before the accident occurred, the claimant was standing in or about the location of the pathway marked with a yellow “zebra” pattern on the roadway, near the boat ramp that is seen to the left of the photograph attached to Mr Hawley’s statement.
I accept Mr Hawley’s evidence that he was travelling forward at a speed of between 2-5km/h, and I find that he was travelling at that speed immediately prior to the accident.
I accept Mr Hawley’s evidence that he was driving straight, past the ramp on the left so that he could reverse down the ramp, that the trailer was 12-15 feet in length and light weight, and that it followed the tread of the tyres very closely because it is short and narrow. I am not satisfied that Mr Hawley “cut the corner”.
Given the preceding findings, and the apparent logic of events, I consider it more probable than not that the claimant stepped or stumbled backwards into the trailer, after Mr Hawley’s vehicle and part of the trailer had passed her. I find that the claimant failed to look before she stepped backwards into the path of the trailer.
FAULT
Under s 3.11 of the MAI Act, the claimant is not entitled to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks[6] after the accident if the accident was caused wholly or mostly by her fault. Likewise, under s 3.28, she is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the accident if the accident was caused wholly or mostly by her fault.
[6] Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 (Amendment Act) do not apply: s 2 Amendment Act.
In my opinion, the term “fault” used in s 3.11 and s 3.28 means a failure to exercise reasonable skill and care. The burden of proving that, for the purposes of s 3.11 and s 3.28, the accident was caused wholly or mostly by the fault of the claimant, rests on the insurer: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 (Richards) at [45].
I have found that the claimant was standing on the roadway with her back to oncoming traffic. She knew or ought to have known that vehicles were likely to be traveling on the roadway at that location. She knew that there were hundreds of other St Patrick’s Day revellers in the vicinity, and knew or ought to have known that drivers of motor vehicles in the vicinity would be required to contend with multiple potential sources of danger. Her unsigned statement records that there were fights, that there was “all sorts of commotion”, and that “it was mayhem”. In her signed statement she referred to fights in the carpark.
The claimant was required to take care of her own safety. Given the matters I have referred to above, I find that the exercise of reasonable care in the circumstances required a person in the position of the claimant to maintain a proper lookout, and look before moving backwards. She did not do so, and stepped backwards into the trailer. I am satisfied that the accident was caused by the claimant’s failure to exercise reasonable care, and that the accident was caused by her fault.
The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 per McHugh J at [26]. Recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger: Manley v Alexander [2005] HCA 79, Gummow, Kirby and Hayne JJ at [11]. A driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events: Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 Meagher JA (Macfarlan and Emmett JJA agreeing) at [36].
I am not persuaded that Mr Hawley failed to exercise reasonable care. He was aware of the large number of pedestrians in the area, and that some of them were intoxicated. In response to being confronted with this environment, he was driving forward very slowly, and in my assessment, was driving to the prevailing conditions. In my opinion, he was driving his vehicle in a manner consistent with his duty to take reasonable care. It is not apparent to me what steps he could have taken to prevent the claimant from stepping into the trailer being towed by his vehicle. I am not persuaded that the accident was caused by his fault. This is not a case where the claimant emerged in front of his vehicle; she stepped or stumbled backwards into the trailer after the vehicle towing it had passed her.
Given these findings, I find that for the purposes of s 3.11 and s 3.28 the accident was caused wholly by the fault of the claimant.
If I am wrong, and the accident was caused by the fault of Mr Hawley, the question of whether the accident was caused mostly by the fault of the claimant would arise for determination.
A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident, as referred to in s 3.38, was greater than 61%: s 3.11(2) and s 3.28(2) of the MAI Act.
As none of the circumstances referred to in s 3.38(2) are relevant, and there being no percentage fixed by the regulations, the claimant’s contributory negligence is to be determined on the basis of what is just and equitable in the circumstances of the case: s 3.38(3)(c) of the MAI Act. This involves a comparison both of culpability, that is of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34.
Had I found that the accident was caused by the fault of both the claimant and Mr Hawley, I would have determined that it is just an equitable to assess the claimant’s contributory negligence as being greater than 61%. That being the case, I would have found that the accident was caused mostly by the fault of the claimant.
COSTS
The claimant makes a claim for “the maximum legal costs and disbursements” pursuant to the Motor Accident Injuries Regulation 2017. No claim is made for an order under s 8.10(4)(b). Having regard to the matters in dispute, including the disputed questions of fact, and my assessment of the work undertaken by the claimant’s lawyers in connection with the dispute, including the preparation of comprehensive written submissions, I allow $1,919 plus GST for the Sch 2 cl 3(d) dispute and $1,919 plus GST for the Sch 2 cl 3(e) dispute, a total of $3,838 plus GST.
As I have not been provided with details of any disbursements with respect to which payment is sought, I make no allowance for disbursements.
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