Khamis v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Khamis v QBE Insurance (Australia) Limited [2023] NSWPIC 183
CLAIMANT:	Andrew Khamis
INSURER:	QBE Insurance (Australia) Ltd.
MEMBER:	Terence Stern OAM
DATE OF DECISION:	24 April 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment - whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 ; Held – claimant not wholly or mostly at fault; costs assessed in accordance with the Regulations.
DETERMINATIONS MADE:	Certificate *Issued under section 7.36(4) of the Motor Accident Injuries Act* 2017**

STATEMENT OF REASONS

INTRODUCTION

Andrew Khamis (‘Mr Khamis’) was riding a motorcycle and sustained injury when his motorcycle came into collision with a vehicle being driven by the Insured’s son.
The Insurer has alleged that the Claimant was wholly or mostly at fault, for the purposes of section 3.28 of the Act.

THE EVIDENCE

Statement of the Claimant of 26 March 2021

On 26 March 2021, the Claimant confirmed answers he had given to an investigator, Brett Daley. The questionnaire is set up with answers to questions, rather than sequentially: -
Motorcycle questions:
[2]A 1999 Honda 800.
[3]Reasonably familiar. Had ridden the motorcycle several times.
[4]Good mechanical condition.
License questions:
[1]First issued with his licence on 18 February 2020.
Riding conditions questions:
[1]No alcohol.
[2]No drugs or medication.
[3]Approved helmet.
[4]Singlet and jeans.
Journey questions:
[1]Collected the motorcycle at Westfield shopping centre, Liverpool. Was riding to Austral when the accident occurred.
[2]Commenced the journey at about 1:30 pm.
[3]Weather conditions were good.
[4]The speed limit was 70km/h.
[5]Familiar with the section of the Hume Highway. Had travelled it many times.
Accident Questions:
[1]Was travelling in the middle lane, heading Southwest.
[2]Was in the middle lane prior to reaching the traffic lights at the intersection of Hume Highway and Leacock Lane.
[3-6]Claimant was travelling at about 65 km/hr and the traffic light was green. The distance between 100 metres from the intersection to 50 metres
[7]At about 25 metres the traffic light was still green.
[8]The Claimant’s speed about 65 km/h.
[9]The traffic light was orange when the Claimant first entered the intersection.
[10]The Claimant first noticed vehicle “CV 48 KK” when he was about 5-10 metres from the intersection.
[11]The driver of CV 48 KK was travelling in a north-easterly direction along the Hume Highway when they turned right to turn into Leacock Lane. The vehicle collided with the motorcycle.
[12]No time for evasive action.
[13]The Claimant alleges that he had a green light and right of way. The light turned to amber just as he crossed the white line on entering the intersection. He was paying attention to road traffic and entered the intersection with the intention of travelling straight ahead. He believed it was safe to do so. He saw the black 4WD on the other side of the Hume Highway, facing the opposite direction, when it was about 50 metres away. It was stationary at the lights. He began to take notice of it when it was in the middle of the intersection and it was starting to turn into the intersection, towards him, at about 5 – 10 metres away. There was nothing he could do to avoid the collision. He recalls finding himself flung from his motorcycle, onto the ground, some 30 metres along the Hume Highway, in the kerb-side lane. He was travelling at about 65 km/h.
[15]CV 48 KK was moving at the point of impact.
[16]He does not know his speed.
[17]The vehicle collided directly into the right-hand side of the motorcycle.
Injury questions
[1]The Claimant sustained a fracture of his right pelvis/acetabular, a dislocation of his posterior hip, wounds to his right groin and left lateral hip, a fracture of the right tibia/fibula, wounds to the right leg, a bilateral pneumothorax, a fracture of his left hand and injuries to his neck, upper and lower back, and shock.

Statement of the Insured driver, William Matapo, 28 February 2021

Mr Matapo answered questions, put to him by an investigator, Brett Daley, and I refer to the answers by paragraph number:
[10]Held a C class Learner’s driver licence.
[11]First issued with the Learner’s licence when he was sixteen.
[13]At the time of the accident, he was being supervised by his mother, who has her full licence.
[14]Was wearing prescription glasses.
[26]At about 1:15 pm was driving the vehicle along the Hume Highway, towards Liverpool. He had to turn around and head back in the opposite direction in order to get onto the M7 Motorway.
[28]Saw an intersection controlled by lights, it was intention to turn right at the intersection, do a U-turn and then head back onto the Hume Highway in order to travel in the opposite direction.
[29]Was not “overly familiar” with the intersection.
[30]In preparation to turn right, he indicated and moved from the lane into the designated right-turn only lane and continued towards the intersection. He had already begun to slow down to about 40 km/h, then 30 km/h, and then 20 km/h, as he got closer to the intersection.
[31]When he was about 50 metres from the set of lights, he was looking ahead and could see the traffic light, facing his direction, with a green circle. There was no arrow displayed.
[32]He was just concentrating on his lane.
[35]As he arrived at the white line, at the intersection, he saw the lights change from a green circle to an orange circle. He was looking at the oncoming traffic and saw there were a couple of cars slowing and coming to a stop in the left and middle lanes opposite, but no traffic in the right-hand lane, opposite.
[36]Because he had already entered halfway into the intersection, past the white line, he realised it was not safe to stop, otherwise he would be blocking the intersection.
[37]He saw the oncoming cars in the left and middle lanes, opposite, had completely stopped. Because he still did not see any traffic in the right-hand lane, he believed it was safe to turn right.
[38]He continued to move forward into the intersection, to then commence to turn right. He believed his speed was no more than 20 km/h.
[39]The traffic light was still an orange circle. He had only turned a metre or so into the oncoming lane, when suddenly he caught a glimpse of a yellow bike coming towards him from the opposite direction, in the right lane.
[40]He estimates that the rider was in only about 10 metres away and “would also say he was speeding, perhaps doing as much as 100 km/h.”
[41]It happened “that quick and suddenly.” He stepped on the brake, but there was nothing else he could do.
[42]It was a really hard impact. The force of the impact actually turned his vehicle sideways “maybe a metre or two.”

Statement of Mrs E Matapo of 28 February 2021

The Claimant’s mother gave a statement to the Insurer’s investigator, Brett Daley, on 28 February 2021, and I briefly summarise, by reference to paragraph numbers:
[17]At the time of the accident, she was the front seat passenger. Her son only had a Learner’s licence, but he had been driving for over eight years.
[18]Her husband was sitting in the seat behind her.
[20]The vehicle moved into the right turn lane, just before the intersection.
[22]She could hear the sound of the “blinker”.
[23]She was looking straight ahead and could see the lights were green (green circle).
[25]As the car got closer to the intersection, her son slowed down to what she estimated to be about 20 km/h.
[26]She was looking directly ahead and could see cars from the opposite direction that were slowing down and stopping before the intersection, because she had just noticed the lights change from green to orange as the vehicle was driven into the intersection.
[28]Her son drove forward and slightly turned into the oncoming lane when she saw “all of a sudden a bike rider coming from the opposite direction really fast.”
[29]The bike rider was in the right lane, but she could not estimate how far back from the intersection he was when she first saw him. He was driving really fast as he rode towards her. It happened very quickly. Hard to remember everything. Just as her son had turned slightly into the oncoming lane the motorbike crashed into the front of the car.

Statement of witness, Rafaell Catanzaro, contained in the Police Notebook

The entry states that Rafaell Cantanzaro alleges at about 2:00 pm on Sunday, 27 December 2020, he was driving on the Hume Highway, in the right lane closest to the middle of the road. There were no other vehicles around his vehicle. The weather was fine. He was driving towards a set of lights, near the BP. He noticed a yellow and black motorbike come from behind his vehicle and move into the left lane. At this time, the witness was driving at about 65 kph. The rider of the motorbike maintained his position in the furthest left lane, nearest to the footpath. It appeared that he was travelling at about 80 – 90 kph. The driver was about 100 metres behind the motorbike. From the opposite side of the Hume Highway, in the lane turning right into Leacock Lane, he noticed the black Ford Territory cross over the line, and into the intersection. At the same time, he saw the bike speed up and enter the intersection. At the exact same time, he observed both the motorbike and the Ford Territory collide.

QUANTUMCORP AUSTRALIA PTY LTD Investigation Report of 22 March 2021 (A15)

Note, this Report has not been summarised in the Reasons, as it duplicates information already provided in these Reasons.

QUANTUMCORP AUSTRALIA PTY LTD second Report of 24 September 2021

Adds nothing relevant.

SUBMISSIONS

The Claimant’s Submissions of 17 October 2022

I briefly summarise the Submissions, so far as relevant to the issue at hand, by paragraph number:
[16]Claimant’s speed was significantly less, at the point of impact, than contended for by the Insurer, who bears the onus of proof.
[18]The Claimant had been slowing down as he approached the intersection. By the time the Claimant passed the BP service station, his speed had reduced to at least 116 kph.
[19]At that point, the Claimant was still 100 – 200 metres from the point of collision. Further Associate/Prof Anderson concedes he could not determine whether or not the Claimant was decelerating as he passed the service station. As a matter of fact, the Claimant had been slowing since passing the speed camera.
[21]The Insured driver states the Claimant’s speed was no more than 100 kmph. He told the QBE investigator that he saw the approaching motorbike, as he began to take the right-hand turn. He said he believed the Claimant’s speed was no more than 100 km/ph. He says that the motorbike was doing as much as 100 km/h.
[22]The estimate of 100 km/h, corroborated by an important fact. The Insured driver said he had time, after first seeing the motorbike about 10 metres away, to react and hit his brakes before impact:
“It is inconceivable that any driver could react that fast if the Claimant was approaching at 116 kmph as he would have covered that 10 metres in about 0.3 seconds. This is all the more so when one notes the accepted average reaction time of road users is about 1 second.”
[23]It is implausible the Claimant would have been travelling at such high speed, and yet the Insured could still react and hit his brakes before the collision. This finding is not available on the evidence. A more likely finding is the Claimant had continued decelerating as he approached the intersection and that his speed, as estimated by the Insured driver, was no more than 100 kmph.
[24]This is consistent with Associate/Prof Anderson’s assessment of the speed:
(a) His methodology (from p.13 of his report) is to determine the time the Claimant took to cover the distance travelled two locations, 50.7m apart, as seen in the CCTV footage from the BP Service Station about 90-200m north of the subject intersection. At [7.2] of his
report, he says he worked out the elapsed time by counting the number of frames in the CCTV Footage between these two positions. At [7.8] he says, ‘there were 11 CCTV fames between each position’, corresponding to an elapsed time of 1.57 seconds. But it can be seen earlier in his report, that he had not precisely determined the time between each frame and he had to try and manually do it by reference to the clock display. As he says at [6.8.2], ‘By observation, it is apparent that the playback frame rate is 7 frames per
elapsed second. The time is displayed in seconds, and the time may be calculated to fractions of a second by counting frames between increments in the clock display.’
(b) So, if his count was slightly out, and one allows that there were, say, 6 frames per second, then the elapsed time for the 11 CCTV frames between each position is 1.833 seconds, then his assessment of the Claimant’s average speed over the distance would be 50.7/1.833 = 27.65 mps or 99.57 kmph.
(c) Further, and in the alternative, there is no reason why A/Prof Anderson did not include (in his count of the 11 CCTV frames between each position) the frame at the beginning and the frame at the end – i.e., there were 13 frames showing the Claimant between the two locations. Allowing for 13 CCTV frames and even accepting his initial impression that there were ‘apparently’ 7 frames per second, this means the elapsed time was 1.85 seconds, and the Claimant’s average speed over the distance would have been 50.7/1.857 = 27.3 mps or 98.2 kmph.
(d) If one gives the Claimant the benefit of the doubt on both of these propositions (and he should be, as the Insurer bears the onus of proof), the elapsed time was 2.17 seconds between the two locations, and so the Claimant’s average speed over the distance would have been 50.7/2.17 = 84.1 kph.
(e) The remaining shortfall in A/Prof Anderson’s analysis is that he cannot determine whether,
and to what extent, the Claimant was decelerating as he passed the BP Service Station and can do no better than work out ‘average speed’ over the distance of 50.7 m adjacent to the BP Service Station.
(f) Given the Insurer bears the onus of proof, these matters cannot be assumed in favour of the Insurer.
The submission argues that the forgoing analysis, leads to the conclusion that the Insured driver’s assessment of the Claimant’s speed being no more than 100 kph should, in all the circumstances, bee accepted.
[25]The submission continues that the speed limit does not automatically equate with Common Law negligence. The fact that the speed limit was 70 kph does not necessarily mean that any greater speed must lead to a finding that the Claimant failed his duty to take reasonable care.
[26]The submission proceeds that the situation depends on a range of factors. His visibility was excellent. There was reduced traffic. Travelling over the speed limit, while attracting a speeding fine, does not automatically mean the Claimant breached his duty, or that if he did, his departure from the standard of reasonable care was serious.
[27]The Insured driver turned in front of the Claimant, clearly failing to ensure oncoming lanes were clear. Under the Road Rules, he must give way to oncoming traffic. He could have waited for the next cycle of the green lights. His actions were, at least, equally as causative as the Claimant’s. Submitted that the Insured driver ought to have greater responsibility as a turning motorist, and that an apportionment would only be a 30% reduction for contributory negligence.

The Claimant’s Further Submissions of 2 February 2023

I briefly set out the Further Submissions by reference to paragraph numbers:
[1]Accepts the collision hypothesis of Associate/Prof Anderson in his Supplementary Report of 25 November 2022. It shows that Claimant’s speed at about 4.5 – 3.5 seconds before the collision was 83 km/h.
[2]The Claimant had slowed down considerably as he approached the intersection. The exceeding of the speed limit has to be understood in the context of good weather conditions and light traffic.
[3]After this point, the Claimant then sped up, likely corresponding with the lights having turned green, and by about 2.5 seconds before the impact, his speed was 97 km/h, and, at 2 seconds before the impact, according to Associate/Prof Anderson, his speed was at 115 km/h.
[4]Likely that the Insured driver began to make his right-hand turn, across the Claimant’s path, at about 2 seconds before impact, when the Claimant’s speed was about 100 km/h.
[5]The Claimant accepts he breached his duty of care to himself as he should not have been speeding. His speed at the critical moment was about 100 kmph, not 116 kmph. His split-second decision to accelerate when the lights turned amber, may well have seen him reach a speed of 116 km/h at about the point of collision, is deserving of criticism, but the Insurer cannot prove that this further increase in speed played a causative role, so the increase in speed, above 100 km/h should not factor (at least significantly) in the determination of contributory negligence.
[6]The driver of a stationary vehicle, intending to turn across the path of an approaching vehicle, carries the obligation to Give Way, not just under Road Rules, but as a matter of common sense, as the turning driver is best placed to control the outcome. The driver of the Insured vehicle appears to have assumed that the bike would stop at the amber light. This was an incorrect assumption. The Insured vehicle failed to give way. An appropriate apportionment is 30%.

The Insurer’s Submissions in the Internal Review decision (R1)

In a letter of 6 October 2022, the Insurer set out its reasons for its decision on the internal review. Previously, it had, in the Liability Notice of 22 August 2022, assessed the Claimant’s contribution to the cause of the accident, by failing to keep a proper lookout and by driving at an excessive speed, at 70%.
The Insurer considered the following documents and case:
i.Application for Personal Injury Benefits dated 18 January 2021
ii.NSW Police Report dated 28 January 2021
iii.Quantumcorp Investigations Reports – various dates
iv.Anderson Hall Expert Report dated 27 July 2022
v.QBE Liability Notice dated 22 August 2022
vi.Sanford Legal Internal Review Application Letter dated 15 September 2022
vii.Hall v Yang [2014] NSWDC 36, per Judge Levy.
The Insurer also considered what it called the relevant legislation:
i.Motor Accident Injuries Act 2017 (the Act)
ii.Motor Accident Guidelines (Guidelines)
iii.NSW Road Rules 2014
The Insurer referred to the NSW Road Rules 2014:
“20 Obeying the speed limit
A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.”
The Insurer also referred to Road Rule 62:
“62 Giving way when turning at an intersection with traffic lights
(1) A driver turning at an intersection with traffic lights must give way to—
(c) if the driver is turning right—any oncoming vehicle that is going straight ahead or turning left at the
Intersection.”
The Insurer then went on to give their Reasons for Decision and I briefly summarise.
The Insurer referred to the NSW Police Report of 21 January 2021:
“About 13:40 on Sunday 27th December 2020, vehicle one was travelling east bound in the designated right turn lane of the Hume Highway, Casula turning right into Leacock Lane. In doing so has collided with vehicle two travelling in the opposite direction of travel. Driver 2 suffered serious injuries and was immediately conveyed to Liverpool Hospital for emergency treatment.”

The Insurer also relied on paragraph [37] of the statement of the Insured driver:
“I also saw the oncoming cars in the left and middle lanes opposite had completely stopped, and because I still did not see any traffic in the right hand lane, I believed it was safe for me to make my right turn.”
The Insurer then referred to the Accident Reconstruction Report of Associate Professor Robert Anderson, of 25 July 2022. He was of the opinion, using the CCTV footage from a service station 68 metres from the point of impact, calculating the speed of the motorcycle by reconstructing the distance, that the Claimant’s speed was 116 kph and he continued:
“Hence, it is my opinion that the risk of crashing was high given that the Claimant’s speed exceeded the speed limit by 46 kph; moreover, the Claimant’s speed was the most significant factor in the causation of the crash. The Claimant was severely injured and this is also attributable to his speed at the point of
collision. It is my opinion that had the Claimant approached at the speed limit the accident would likely have not occurred. In the case the collision would have occurred despite the lower speed, the lower speed would have resulted in a significantly reduced risk of injury”
The Insurer then refers to the decision of Hall v Yang [2014] NSWDC 36 per Judge Levy, who found that a motorcyclist, who was travelling at 65 km/h in a 50 km zone, and, in doing so, was 30% higher than the speed limit, and should be recognised as contributing to the cause of the accident of a high order because:
“[210] Having reached that conclusion, it becomes necessary to evaluate the just and equitable apportionment of the respective culpability of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529.
[211] In my view travelling at a speed of 15 kph in excess of the speed limit, or 30 per cent higher than the speed limit, should be recognised as being contributory negligence of a high order. This is because the plaintiff's speed necessarily meant that he left himself with significantly less opportunity to utilise his post-reactions time opportunity to avoid having an accident.
[212] In those circumstances, I consider it just and equitable that the plaintiff's culpability for his contributory negligence should be assessed at 25 per cent, which means that the defendant's culpability should be assessed at 75 per cent.”
The Insurer refers to the submissions on behalf of the Claimant and submits that it was unlikely that the Claimant was slowing down given his documented level of comfort with high speeding and having a green light ahead. It submits that:
“It would be extremely unlikely that you were slowing down, given the CCTV footage confirming you speeding, just prior to impact”.
The Insurer maintained its argument that the extent of contributory negligence amounts to at 70%.

Insurer’s Further Submissions R-13 of 31 January 2023

I briefly summarise, by reference to the paragraph numbers:
[3.9]Rule 62(c) of the Road Rules 2014 applies. Traffic light phasing included the sequencing in which the red turn arrow disappeared, and there is no green right-turn arrow, therefore the Insured must give way to any oncoming vehicle:
“that is proceeding straight ahead of making the turn at the intersection, including the Claimant’s”.
[3.6]The Insurer refers to T & X Company Pty Ltd v Chivas [2014] NSWCA 235, and Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139:
“when weighing up the culpability of involved parties, it is not necessary to compare the harm that has been caused by the parties; rather, a court is to look at the respective carelessness of the both the driver and the pedestrian. If the parties are equally careless and their carelessness has contributed equally to the outcome, then culpability should be borne equally.”
[3.7]The Insurer further relies on ACA v QBE Insurance [2018] NSWDRS SA 053:
“It is relevant to consider the actions of both parties and to weigh their respective actions when determining contributory negligence”.
[3.8]The Insurer refers to Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage..
It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
[3.9]The Claimant’s evidence – the Claimant did not produce any expert evidence.
[3.10]The Insurer notes the allegations made within the Claimant’s submissions:
(a)The speed at the point of impact was significantly less than that as contended by the Insurer.
(b)The Claimant was decelerating and travelling at less than 100 kmph, as he approached the intersection.
(c)It is implausible that the Insured driver could have reacted and braked if the Claimant was travelling at 116 kmph, before the collision.
[3.11]The Claimant was fined after being detected by a speed camera at 136 kmph, approximately 100 – 200 metres before the point of collision.
(b)His speed at the time of the collision was as much as 100 kmph, and therefore, 30 kmph over the speed limit of 70 kmph.
(c)He bears some culpability in the collision.
[3.12]The Claimant makes comments surrounding validity and accuracy of the Report of Associate Professor Anderson.
[3.17]The Insurer repeats and adopts the Reasons set out in the Certificate of Reasons of 6 October 2022 (R5). The evidence supports a finding that the Claimant failed to exercise reasonable care for his own safety.
[3.14]The Insurer relies on the evidence of Associate Professor Anderson’s first Report.
[3.16]The Insurer now relies on Associate Professor Anderson’s Supplementary Report, in support of the proposition that contributory negligence should be assessed at 70 percent.
(a)The Supplementary Report clearly establishes, with detailed reasons, that the playback frame rate is 7 frames per second.
(b)What Associate Professor Anderson meant was that there are eleven frame intervals.
(c)Associate Professor Anderson’s inconsistencies are clearly clarified and substantiated by his reasoning.
(d)The Claimant’s incorrect application of the frame rate and number of intervals has led to him coming to a factually and methodologically inaccurate estimated pre-crash speed.
[3.18]Associate Professor Anderson’s opinion should be given significant probative value.
[3.19]The evidence plainly demonstrates the accident was caused mostly by the fault of the Claimant, so as to satisfy section 3.11 of the Act.
[3.20]The Insurer relies on the statement of Constable Benitez of 2 February 2021, which refers to the account of the eyewitness, Ahmad Sryta, who states that the Claimant rode through the intersection and collided with the Insured vehicle, while the Insured vehicle driver was in the process of turning.
[3.22]Is certain that the Claimant was speeding at the time of the accident.
[3.23]The Insurer relies on the following conclusion of Associate Professor Anderson:
“(a) Whilst a constant speed was presumed in the preliminary report for the purpose of illustrating the impact the Claimant’s excessive speed had on causation of the accident, the further analysis demonstrates that the Claimant in fact accelerated towards the intersection.”
(b)The Claimant accelerated from 83 kmph to 123 kmph before decelerating to 116 kmph, over the final second.
(c)The timing of the Claimant’s acceleration appears to coincide with the lights changing.
(d)The incident would not have occurred had the Claimant travelled within the speed limit. Had he done so, he would have had ample time and distance to stop comfortably at the intersection, and to arrive on the red light.
[3.25]The submission continues:
“Further, whilst the Claimant submits that the act of the Insured braking demonstrates that he observed the Claimant’s motorcycle travelling towards him and should have therefore not attempted the turn, the Insurer relies on the determinations of A/Prof Anderson that:
“In reality, the threat of a collision is likely to have emerged over a period of time as the motorcycle approached, rather than at one instant. In my opinion, this is likely to have occurred within the first 2-3 seconds after the insured began to move off, given the relevant timings described above. Although the motorcycle may have been visible for longer than this, it is not clear that its elevated speed would have been readily detectible.
It is reasonable, in my opinion, that the insured only recognised the threat of a collision just before it occurred. The Insured described the lights changing when he began to turn, and the Claimant would have been still some distance away at this time. The Claimant’s speed and intention to ride through the intersection are likely to have become apparent only during the insured's turn. The insured’s reaction is, therefore, in line with normal expectations”.
[3.27]The Claimant’s excessive speed was the most significant factor.
[3.28]The accident could have been avoided had the Claimant not been negligent.

Police Report of 28 January 2021

The Crash Summary Details are brief and properly, do not attribute blame, given the serious injury sustained by the Claimant, who was taken to Liverpool Hospital for emergency treatment.

Report of Adjunct Associate Professor Robert Anderson of 25 July 2022

Adjunct Associate Professor Robert Anderson provided a report to the Insurer of 25 July 2022. He is a well-qualified expert and entitled to give opinion evidence on relevant matters, such as a reconstruction of the speed at which the Claimant was travelling on the motorcycle, leading up to the intersection and the accident.
He notes at [6.5] that the Claimant was photographed by a speed camera detection unit, 2 km before the crash site, and recorded him as travelling at 136 km/h.
At [6.6], he refers to footage from a CCTV camera, recording the Claimant’s approach to the point of collision, and the movements of the Insured vehicle in the seconds before the collision. He notes that the camera was located at the BP service station, diagonally opposite the intersection.
He explained that the CCTV file included footage from the five cameras, with views covering various areas, and that it was apparent from the fields of view for each camera that the frames were included, apart from the camera shown in figure 4.
He continued that the footage was approximately 30 minutes long, at a play back frame rate of 7 times per second. The time is displayed in seconds and the time may be calculated to fractions of a second by counting frames between increments in the clock display.
He continued that the footage from CH8 showed the approach of the Claimant’s motorcycle, and the approach of the Insured vehicle. Although the crash was slightly obscured by signage, the approximate moment of collision is apparent.
Further, he said that the Claimant entered the frame of the video from the left, at 13.39.29.57. At the time, the motorcycle was approximately 68 metres from the point of collision. The collision appears to have occurred at 13.39.31.57 – 13.39.31.71. The Claimant’s speed was 116 kph.
Associate/Prof Anderson sets out his methodology in reconstructing the distance and the speeds at [7.7] and [7.8].
He was asked whether the Claimant could have avoided the crash had he not been speeding. He simulated two scenarios to demonstrate the effect of the speed. One represented the subject collision with an initial speed of 116 kph and a small degree of braking before the collision. The other was a counterfactual scenario that was identical except for an initial speed of 70 kph.
In the counterfactual scenario, the arrival time at the intersection would have been delayed by two seconds.
He considered that the delay was of material importance. The delay would have represented 11 metres of additional travel which would have allowed the Insured driver to completely clear the Claimant’s lane, for the arrival of the motorcycle. In the subject scenario the collision speed was 110 kph, and in the counterfactual scenario, the collision speed was 17 kph. A collision at that speed was unlikely to have led to any appreciable risk of injury.
He noted that a speed of 116 kph, equates to 32 metres. Hence, four seconds to collision. The motorcycle is likely to have been 130 metres from the intersection, and normally a vehicle travelling at that speed would have taken 6.6 seconds to cover the distance. Further, if the lights had changed from green to yellow it would be expected that a vehicle, that was 130 metres away, would slow and stop.
He continued that the Insured described the lights as changing when he began to turn, and the Claimant would still have been some distance away. The Claimant’s speed and intention to ride through the intersection are likely to have become apparent only during the Insured’s turn. The Insured’s reaction was, therefore, in line with normal expectations.
AP Anderson gave his opinion on the relevance of exceeding the speed limit and its consequences at [9.7]:
“Hence, it is my opinion that the risk of crashing was high given that the Claimant’s speed exceeded the speed limit by 46 kph; moreover, the Claimant’s speed was the most significant factor in the causation of the crash. The Claimant was severely injured and this is also attributable to his speed at the point of collision. It is my opinion that had the Claimant approached at the speed limit the accident would likely have not occurred. In the case the collision would have occurred despite the lower speed, the lower speed would have resulted in a significantly reduced risk of injury.”

Supplementary Report of Associate Professor Anderson of 25 November 2022

[5.10] The result of Associate Professor Anderson’s further analysis indicates that at 4.5 seconds before the collision, the Claimant accelerated from a speed of about 83 kph, to a top speed of 123 kph; he the decelerated over the final second. The average speed over the final one-second interval was about 116 kph. The acceleration of the motorcycle, indicated by the speed provide is 3/7 m/s. These results are consistent with the first report reconstruction, which focused on the final 1.57 seconds before the collision.
[5.12] The yellow phase of the traffic signals is likely to have been 4.5 seconds.

Associate Professor Anderson summarises:
[7.1] His analysis refutes the contention that the Claimant was decelerating as he passed the BP. Although there was deceleration in the final second before the collision, the Claimant had accelerated to a speed of 123 kph, before doing so.
[7.2]Contrary to what the Claimant’s Solicitor contends, the timings can be precisely determined, and there is no inconsistency.
[7.3] Although the motorcycle was decelerating, he does not think it was likely that the speed dropped below 100 kph on impact.
[7.4] The Claimant’s reasoning is incorrect. Associate Professor Anderson used the appropriate number of intervals in his calculation. Further analysis confirms the speed calculations provided in the first report.
[7.6] The Claimant’s speed was the most significant factor in the causation in the crash, as expressed in [9.7] of his first report.
[7.7] Appears likely the Claimant accelerated as the traffic lights were changing. Had he maintained his speed, he would have had ample time and distance to stop before the change of traffic signals. Had the Claimant travelled at the speed limit, the crash would not have occurred.

LEGISLATIVE FRAMEWORK

In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) (‘the Act’);
• Motor Accident Guidelines 2017;
• NSW Road Rules 2014; and
• Civil Liability Act 2002.
Section 3.28 of the Act states:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) 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 section 3.38) was greater than 61%.”
Section 3.11 of the Act states:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if--
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person's only injuries resulting from the motor accident were minor injuries.”
Rule 20 of the NSW Road Rules 2014 states:
“20 Obeying the speed limit
A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.”
Rule 62 of the NSW Road Rules 2014 states:
“62 Giving way when turning at an intersection with traffic lights
(1) A driver turning at an intersection with traffic lights must give way to—
(c) if the driver is turning right—any oncoming vehicle that is going straight ahead or turning left at the
Intersection.”
Section 5R of the Civil Liability Act 2002 provides:
‘5R Standard of contributory negligence
(2) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm
(3) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time’

CASE LAW

The Common Law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:
‘......an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.’
At [34] his Honour referred to the judgment of the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man......and the relative importance of the acts of the parties in causing the damage.......it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’

Judge Levy in Hall v Yang [2014] NSWDC 36 explained at [210] – [212]:
“[210] Having reached that conclusion, it becomes necessary to evaluate the just and equitable apportionment of the respective culpability of the parties: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529.
[211] In my view travelling at a speed of 15 kph in excess of the speed limit, or 30 per cent higher than the speed limit, should be recognised as being contributory negligence of a high order. This is because the plaintiff's speed necessarily meant that he left himself with significantly less opportunity to utilise his post-reactions time opportunity to avoid having an accident.
[212] In those circumstances, I consider it just and equitable that the plaintiff's culpability for his contributory negligence should be assessed at 25 per cent, which means that the defendant's culpability should be assessed at 75 per cent.”
In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
‘[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ......
[117] ...the High Court held in Sibley v Kais [1967] HCA 43......that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 his Honour said:
‘The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.’
His Honour continued:
‘[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander .....reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36] The driver is not required......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 event......the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] ....nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path.....
At [121] referring to the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182:
‘15. A driver is entitled to assume that others will observe the rules of the road. .......as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether, in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required......’
McHugh J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 also held that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case:
“Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 at [11].”
In Manley v Alexander [2005] HCA 79 Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway... at 4.00 am is... remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
In Varga v Galea [2011] NSWCA 76 McColl JA delivered the judgement of the Court. She said at [10]:
“Section 5E of the 2002 Act provides that in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to causation. I would understand "plaintiff" to be read as meaning, where appropriate, the party propounding the issue of negligence, in this case, the respondents. This is made clear, insofar as the issue of contributory negligence is concerned...”

CONSIDERATION

The evidence is that the Claimant had been speeding, riding his motorbike at a speed considerably in excess of the speed limit of 70 kph, at a roundabout.
Even if the traffic was light and the conditions were good, there were at least a number of traffic movements approaching the roundabout, and it is common sense that when approaching a roundabout, a driver must exercise care against the possibility of collision with another vehicle entering the roundabout.
As Judge Levy said in Hall v Yang [2014] NSWDC 36, by exceeding the speed limit, the Claimant denied himself the opportunity of avoiding the collision altogether and of giving the other vehicle a much better opportunity of avoiding the collision.
In determining the degree of fault on the balance of probabilities, I have taken into consideration the decision of the Court of the Appeal in the case of Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20.
In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact … … two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”: “The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
On the balance of probabilities, the Claimant breached his duty of care to himself, by failing to ride his motorcycle at a slower speed, even given the light traffic conditions, by failing to take into account the possibility that the Insured driver might enter the intersection on the amber light, by failing to avail himself of the opportunity to slow down his motorcycle by keeping a proper lookout, well in advance, and allowing the Insured driver to pass in front of him.
While the rider may bear a greater proportion of the responsibility, it does not follow that he was at fault to the extent of 61%, or “mostly at fault”, as deemed by s 3.28.
I am not required to determine the precise degree of fault of the Claimant, but I do not consider that it was as high as 61%, nor do I find that he was, as a result, “mostly at fault.”
The fundamental reasons why the Insurer determined liability against the Claimant, on the basis that the Claimant was mostly at fault, were that it accepted the following, on the balance of probabilities, as the material facts:
Fact a:At about 1:15 pm, the Insured was driving along the Hume Highway towards Liverpool but needed to turn in the opposite direction to get onto the M7 Motorway and then head home.
Fact b: It was the Insured driver’s intention to turn right at the next intersection, do a U-turn, and then head back home onto the Hume Highway.
Fact c:In preparation to turn right into Leacock Lane, he indicated, and moved from his lane, onto the designated right-turn only lane.
Fact d: He had already begun to slow down to about 20 km/h, and slowed as he got close to the intersection.
Fact e: When he was about 50 metres back from the set of lights, he could clearly see the traffic light facing his direction was a green circle with no arrow.
Fact f:As he arrived at the intersection, the lights changed from a green circle to an orange circle.
Fact g: He was looking at the oncoming traffic.
Fact h:He saw that there were a couple of cars slowing and coming to a stop in the left and middle lanes.
Fact i: There was no traffic in the right-hand lane, opposite.
Fact j: He had already entered half-way into the intersection, past the white line.
Fact k: It was not safe for him to stop, otherwise he would be blocking the intersection.
Fact l: He believed it was safe to make his right turn and continue to move forward into the intersection.
Fact m:He had only turned a metre or so into the oncoming lane when he caught a glimpse of a yellow bike coming towards him from the opposite direction, in the right lane.
Fact n: He estimated that the rider was about 10 metres away, and doing as much as 100 km/h, in a 70 km/h zone. He managed to step on the brake at the same time as the rider impacted with the front driver’s side of the car.
The Insurer relies upon the opinion evidence of Adjunct Associate Professor Anderson.
The Insurer refers to, and relies on, the decision of Judge Levy in Hall v Yang [2014] NSWDC 36, for the proposition that given the speed the Claimant was riding the motorbike, above the speed limit, he should be recognised as being guilty of a high order of negligence. In that case, at [211], Judge Levy explained:
“This is because the plaintiff’s speed is necessarily meant that he left himself with significantly less opportunity to utilise his post-reactions time opportunity to avoid having an accident.”
The Insurer’s conclusion as to liability, set out in the Internal Review Reasons, was:
“…You were travelling at an excessive speed and when considering the circumstance of the accident, I am satisfied that it is your conduct of failing to drive to the prevailing conditions, that significantly contributed to the accident.”
The Insurer did not accept that, on the balance of probabilities, the Claimant slowed down, given his documented comfort with high speeding, and having a green light ahead of him, considered that it was:
“…Extremely unlikely that you were slowing down, given the CCTV footage, confirming you speeding just prior to impact.”
The Insurer concluded that the Claimant’s contributory negligence was greater than 61%, and therefore, he was deemed mostly at fault.
The Insurer relies, also, on the statement of Constable Carlos Benitez of 2 February 2021, which contains a reference to the account of eyewitness Ahmad Sryta, where it is stated that the Claimant rode through the intersection and collided with the Insured vehicle, while the Insured driver was in the process of turning.
I make the following findings of fact on the balance of probabilities, having taken into account the elements on which I am to make a balance of probabilities decision and the requirements of s 5R of the CLA:
a.I do not need to make a finding on the exact speed of the motorcycle as the Claimant approached the intersection, as the exact speed, with a small variance does not, as a matter of common sense, have any material effect on the outcome.
b.The Claimant, however, was riding his motor vehicle, at the point of impact, at a speed of about 100 kph. This is consistent with what the Claimant says, and also what the Insured driver stated (see point 10 [40] above).
c.The accident reconstruction expert reconstructed a different speed. The critical fact, however, is that the speed at which the motorbike was being ridden was excessive in the circumstances.
d.Both the rider and the driver failed to keep a proper lookout.
e.As the driver was approaching the intersection, he failed to observe the speed at which the Claimant was approaching on the motorbike, and nevertheless entered the intersection to make a turn, rather than stopping at the amber light.
f.The responsibility for this accident was multifactorial, with both the rider and the driver failing to keep a proper look out, the Claimant riding his motorcycle at an excessive speed in the circumstance where he was approaching and entering an intersection, and by the driver failing to stop at the amber light when he obviously had the chance to do so, given his stated slow speed as he was approaching the intersection.
g.The contributions to this accident were:
i.The Claimant was travelling too fast in the circumstances.
ii.He should have been keeping a better lookout and not have entered the intersection until it was safe to do so.
iii.Notwithstanding the Insured driver’s slow speed and his opportunity to stop on the amber lights, he proceeded into the intersection.
iv.It is likely that the Insured driver was not keeping a proper lookout. Had he been doing so, he would have observed that the Claimant was travelling on his motorcycle at speed as he approached the intersection, and should have taken into account the prospect that the Claimant would enter the intersection.
Section 3.11(2) of the Act provides that:
“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 section 3.38) was greater than 61%”
While it is clear that in terms of contribution, the Claimant’s contribution was significant, it does not mean that the evidence should disregard the Insured driver’s failure to keep a proper lookout which was also significant in terms of causation.

DETERMINATION

It is just and equitable to determine as follows:
a)For the purposes of section 3.11 of the Act, the accident was not caused wholly or mostly by the fault of the Claimant.
b)For the purposes of section 3.28 of the Act, the accident was not caused wholly or mostly by the fault of the Claimant.

Legal costs

I determine the amount of the Claimant’s legal costs, as regulated at $1,800.00.

[2023] NSWPIC 183

24 April 2023