Le v NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Le v NRMA [2022] NSWPIC 76
CLAIMANT:	Trung Le
INSURER:	NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	15 February 2022
CATCHWORDS:	MOTOR ACCIDENTS - Dispute as to whether the insurer is entitled to reduce payments of weekly statutory benefits on account of the claimant’s contributory negligence, pursuant to section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); claimant was injured when attempting to cross roadway and stepped behind insured vehicle which was parallel parked next to the kerb; the insured reversed his vehicle causing collision; Held- insurer made an assessment of contributory negligence of 50%; contributory negligence assessed at 25%.
DETERMINATIONS MADE:	1. For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 21 November 2020. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $660 inclusive of GST.

Reasons for Decision

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

Background

This determination relates to a dispute as to whether the insurer is entitled to reduce payments of weekly statutory benefits on account of the claimant’s contributory negligence, pursuant to section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act)

This dispute is deemed a miscellaneous claims assessment matter by virtue of Schedule 2 subclause(3)(g) of the MAI Act. Whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 (Reduction of weekly statutory benefits after six months for contributory negligence).
Mr Trung Le (the claimant) suffered injury in a motor vehicle accident on 22 May 2020. He was a pedestrian who was struck by the insured vehicle in Punchbowl NSW.
An application for personal injury benefits was lodged with NRMA (the insurer) on 18 June 2020. Liability for statutory benefits for the first 26 weeks was admitted by the insurer via notice dated 14 July 2020.
A liability notice – benefits after 26 weeks dated 11 September 2020 was issued by the insurer advising that investigations were continuing.
A further liability notice – benefits after 26 weeks dated 27 January 2021 was issued by the insurer which included a decision that the claimant’s contributory negligence was 50%.
It is worth noting that this liability notice lacks clarity and information. The liability notice quotes sections 3.11 and 3.28 of the MAI Act and discusses the fact that payments after 26 weeks are not payable if the claimant is “mostly at fault”. However, it is clear that the insurer’s decision does not invoke such sections given the percentage of contributory negligence assessed by the insurer is less than 62%.
Further, the liability notice does not mention the relevant section, being section 3.38 of the MAI Act. The notice also fails to explain that the claimant’s payments of weekly statutory benefits would be reduced by 50%, nor the date such decision would come into effect. Moreover, the wording of the notice under the sub heading “what does this mean?” simply states that the claimants reasonable and necessary expenses for treatment and care would be paid. It fails to mention the fact that he is still entitled to payments of weekly statutory benefits pursuant to the relevant sections of the Act.
The claimant’s solicitors lodged an application for internal review and a decision was issued by the insurer dated 12 March 2021. The internal review decision affirmed the original decision.
The internal review notice does a better job at explaining the fact that the insurer would be reducing payments of weekly statutory benefits by 50%. The notice also references the correct section, being section 3.38. It does not state, however, from what date such reduction would be applied.
The claimant subsequently lodged an application with the Personal Injury Commission (PIC) and the matter has been allocated to me for assessment.
I have held one teleconference with the parties wherein both parties indicated that no further material would be relied upon and it was agreed that the matter would be determined “on the papers” by me.

Documents considered

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

Evidence as to the circumstances of the accident

The accident occurred on 22 May 2020 at around 10.40am on Punchbowl Road, Punchbowl.
The claimant describes the accident in his application for personal injury benefits, as follows:
“Was crossing the kerb, standing at the kerb. A car reversed while parked and hit me.”
The NSW Police report includes the following description:
“…Driver 1 entered Vehicle 1 then put their seat belt on. Driver 1 then reversed their car and impacted the rear of his car into the pedestrian. Driver 1 heard the impact of the collision and got out of his car to see the pedestrian laying on the road. Driver 1 existed his vehicle and stayed on scene until Police arrived.
Police attended the above address a short time later and obtained a version from driver 1. The ambulance also attended the scene to assess the pedestrian who was conveyed to **** hospital and treated for injuries at the time that were unclear to Police and Ambulance. Police followed up with the pedestrian a few days later and offered to obtain a version from him which he denied.”
The NSW Ambulance report includes a case description as follows:
“Patient is pedestrian who was struck by reversing vehicle whilst attempting to cross busy road…Per pt he stepped out onto curbside [sic], was looking right for oncoming traffic, then a parked car to his left begun reversing and struck him on his left knocking him to the road…”
An ED Discharge referral from Bankstown-Lidcombe Hospital includes the following relevant description:
“History of presenting complaint
Mr Le was at a Bus Stop in Punchbowl train station
-    He was attempting to cross the road
-    He was on the curbside, looking right for oncoming traffcic [sic]
-    A parked car on his left reversed back
-    Hitting him on the left shoulder/arm…”
The insurer obtained a factual investigation report of Barringtons dated 4 August 2020.
That factual investigation report includes a number of photographs of the accident scene. Those photographs depict a four lane roadway at what appears to be a shopping strip. The area is a straight stretch of road. On the northern side of the road, where the accident occurred, lane one appears to allow for parallel parking. On the southern side, there is a further two lanes for traffic travelling in the opposite direction (westerly).
A statement of the insured driver was obtained by investigators dated 29 July 2020. The insured described the traffic flow at the relevant time as being medium.
The insured describes the accident as follows:
“About 10.30am, I parked on the northern side of Punchbowl Road at Punchbowl and my vehicle was facing to east. At the time, it was day and the weather conditions were fine and the roadway was dry. I left my vehicle and then walked to a Shop called the Yum Yum Bakery. I then returned to my vehicle and sat in the driver’s seat. I put my seat belt on and started the vehicle. I was not using a mobile telephone. I did have the car radio on and I was not distracted by anything. I was the only occupant in my vehicle.
I then intended to drive out of my parking space. Behind my vehicle was a Bus stop that was vacant. In front of my vehicle were other parked vehicles. I put my vehicle into the reverse gear and I then looked over my left shoulder and then into the reversing camera. I did not see any person or vehicles behind my vehicle and I formed the opinion that it was safe for me to reverse. I then slowly reverse bout one metre and I was looking down at the reversing camera screen on my console. I then heard a bang and I felt an impact to the rear of my vehicle. I then saw an Asian male in the screen fall behind my vehicle and onto the roadway. I then immediately stopped. I then got out of my vehicle and I saw an Asian male and he was lying on the roadway and he was holding his nose…”
The insured confirms he was interviewed by the police at the scene, that he made a statement at the scene which was transcribed into the officer’s notebook. He signed the statement. The insured states that the Police determined that he was not at fault.
The insured driver contends that the cause of the accident was the claimant walking behind his vehicle as he reversed. He states that he did not see the pedestrian prior to the accident.
The investigators interviewed Probationary Constable Benjamin Powditch at Bankstown Police Station on 28 July 2020. The factual investigation report includes a transcription of such interview.
The officer indicated that he first learned of the accident when it came through as a “late injury report” on 8 July 2020. He interviewed the claimant at his address thereafter. The interview notes do not include any detailed description of the accident, other than the location.
The officer confirmed that a different officer undertook the initial investigation who attended the accident scene. It was this other officer, Constable Grey, that interviewed the insured driver.
When asked by the Police what happened, the insured stated as follows:
“I just jumped in the car after getting food. I put my seatbelt on. I then started to reversing and the bloke just came out of nowhere. I just heard a boom and got out and saw the guy laying on the ground.”
When asked by Police whether he saw the claimant before he started reversing, the insured stated: “no, I did not see anyone. Even before I got in the car, no one was behind me”. He was also asked whether he used his car vision mirror and the insured confirmed that he had.
The officer confirmed that no action was taken against any person. The officer also stated that he was not aware of a determination in relation to who was deemed at fault.
As part of the internal review process the insurer requested that the claimant provide a statement. One was eventually provided, through his solicitors, dated 12 March 2021. That statement contends that the claimant had taken a bus from Riverwood shopping centre was “supposed to arrive at Bankstown but instead,
I exited the bus when we reached a stop near Punchbowl Station”. He goes on to state:
“I wanted to see if there was a next bus coming as I need to get to another bus that will transport me back to Bankstown. At the time, the roads were very congested, and I could not see both sides of the road due to the bus and the vehicle at fault thereby obstructing my view at each side.
Before I stepped a foot onto the kerb, I had looked both sides and I note that the vehicle at fault was stationary and I did not see any hazard lights or reversing lights to indicate that he was reversing. Once I was on the kerb, I looked at the left side to see if it was clear and then I was focusing on look at my right side. [sic]
The vehicle fault suddenly reversed abruptly and pushed me to side. It caused me to push forward of about 2 metres. I could not remember what happened after that as I lost consciousness and was transported to a hospital by ambulance.
I believe the driver was at fault because he had failed to check his rear view before reversing his vehicle. Furthermore, he abrupted reversed his car and caused a large impact. This resulted me in being pushed away two metres into the ground. [sic]
I did not say how the accident happened to the ambulance. The ambulance records are incorrect as they did not witness the accident.
I recall the Police attended the accident. On 8 July 2020, I was interviewed by Constable Josikovic at my home where I gave details of the accident. Also, Atif was the witness of the accident and he can be reach by mobile 0480 *** ***. [sic]”
There is nothing before me that indicates that either party has contacted or interviewed the named witness.

Submissions

The claimant’s submissions

The claimant has not provided written submissions with the application. This was confirmed at the teleconference and it was confirmed that no further documents would be relied upon other than those set out in the insurer’s reply. It was also stated that the only submissions relied upon by the claimant are those set out in the internal review application.
The application for internal review appears to be simply an email from the claimant’s solicitors dated 22 February 2021 requesting a review of the decision. However, further short submissions were provided to the insurer as part of the internal review process via email from the claimant’s solicitor dated 12 March 2021. Those submissions can be summarised as follows:
“-      The insured driver did not safely reverse the vehicle as he was reversing at an excessive speed.
-         The insured driver failed to observe the surroundings on the left rear and was looking at only the reversing camera “which is not a reliable means of driving.” The insured driver failed to, at all material times, look at the side view mirrors before trying to exit the parking spot.
-         Appropriate checks were not made prior to reversing the vehicle.
-         It is submitted that there should be no finding of contributory negligence, however, if there was contributory negligence it should be no more than 25%.”

The insurer’s submissions

The insurer’s submissions, other than a summary of the evidence, are also brief.
The submissions incorrectly refer to sections 3.11 and 3.28 of the MAI Act, and whether the claimant is entitled to statutory benefits beyond 26 weeks. There is no dispute that the claimant is entitled to statutory benefits beyond 26 weeks. The insurer has not made a decision that the claimant is mostly at fault as provided under sections 3.11 and 3.28.
Of course, the correct section which this dispute relates to section 3.28 which provides that payments of weekly statutory benefits are to be reduced after 26 weeks by the amount of contributory negligence.
The insurer appropriately acknowledges that the insured driver failed to take care and keep a safe and proper lookout while reversing the vehicle. Accordingly, it is submitted that the insured contributed to the accident in the amount of 50%.
It is submitted that the claimant failed to access a pedestrian crossing or traffic walk signal. The insurer notes the claimant’s acknowledgment that the road was congested at the time and that he could not see in both directions because of the bus and the insured vehicle.

Legislative framework

Section 3.38(1) of the MAI Act provides as follows:
“The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.”
Relevant to this dispute is section 3.38(2) of the MAI Act provides as follows:
“The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—
(a)if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or
(b)by such percentage as the parties agree, or
(c)in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.”
Subsection (4) provides that the regulations may fix the amount that statutory benefits of weekly compensation be reduced on account of contributory negligence in respect of specified conduct. The Motor Accident Injuries Regulation 2017
(the Regulation) does not fix any such amounts.
Accordingly, my decision is based upon what I determine as being the percentage of contributory negligence that I consider to be just and equitable in the circumstances of the case as set out in section 3.39(4)(c) above.
Section 5R of the Civil Liability Act 2002 applies to motor accidents in NSW by virtue of section 3B(2) of the Act. Section 5R provides as follows:
“(1) 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.
(2) 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.”

Reasons

There is no dispute in this matter that the insured driver breached his duty of care. The evidence is clear that he did not keep a proper lookout.
The issue that is left for determination is what is the just and equitable finding of contributory negligence.
The insured driver has provided two statements; one to the NSW Police shortly after the motor accident, and a further, more detailed, statement to the insurer’s investigators on 29 July 2020 (approximately two months after the accident). There are some inconsistencies in the two statements.
In his statement to investigators the insured states that after feeling and hearing the impact he saw “an Asian male in the screen fall behind my vehicle…”. Whereas, in his statement to police the insured makes no mention of his reverse camera, nor of him seeing the claimant prior to getting out of his vehicle after hearing the impact.
What is consistent between the two statements is that the insured did not see the claimant prior to the impact. Accordingly, this is clear evidence that he failed to keep a proper lookout.
Whilst the insurer submits that the claimant is contributorily negligent due to him not using a pedestrian crossing, there is no evidence before me as to the existence of such crossing within a reasonable distance. I therefore do not make a finding that a reasonable person in the position of the claimant would have used a pedestrian crossing when I have no evidence that one existed.
The insurer also submits that a finding of contributory negligence should be made because the roadway was busy, as acknowledged by the claimant. However, whether the roadway was busy or not is not causative to the accident. The accident occurred due to a failure to keep a proper lookout. The state of the traffic in the lane adjacent is not relevant to the insured’s duty to keep a proper lookout and to ensure the rear of his vehicle was clear of hazards/pedestrians prior to reversing.
Whilst it is clear the insured did not keep a lookout, it is also the case that the claimant walked behind a stationary vehicle that parked adjacent to a shopping strip (which would indicate to a reasonable person that vehicles in the area would be parked for only relatively short periods) without proper regard for his own safety. A reasonable person in the position of the claimant would firstly keep a lookout for a person in the driver’s seat of a vehicle they are about to walk behind. In addition a reasonable person in the position of the claimant would keep a lookout for rear lights on the vehicle indicating that it was about to reverse so as to avoid being in the path of such vehicle.

On the basis that the claimant failed to observe the fact that the insured was in the driver’s seat and that the vehicle had been put in reverse I make a finding that he was contributorily negligent. However, the relative culpability of the claimant is much less than that of the insured who, on the evidence, failed to ensure that there was no pedestrian behind his vehicle prior to reversing his vehicle.
In the circumstances of this matter, I make a finding that the claimant’s contributory negligence is 25%.

Costs

Neither party has provided any submissions as to costs.
This dispute is deemed a miscellaneous claims assessment matter by virtue of Schedule 2 subclause(3)(g) of the MAI Act.
Schedule 1 subclause 3 of the Regulation provides that the maximum costs for legal services provided to a claimant or an insurer in connection with a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units.
Schedule 1 subclause (3)(g) of the Regulation deems the subject dispute to be a regulated miscellaneous claims assessment.
The claimant has not provided any written submissions prepared for the purposes of this dispute. The claimant instead relies upon short submissions provided to the insurer as part of the application for internal review. Similarly, the short statement of the claimant was provided to the insurer as part of the internal review application.
By virtue of clause 23 of the Regulation, no costs are payable for legal services provided to a claimant or to an insurer in connection with an application for internal review by the insurer under Part 7 of the MAI Act.
An application has been lodged on behalf of the claimant which relies upon documents provided by the insurer in the reply. The claimant was represented at a short teleconference. Accordingly, I decline to award the maximum legal costs payable.
In the circumstances, I award an amount of $660 inclusive of GST for costs to the claimant.

Legislation

In making my decision I have considered the following legislation and guidelines:
• MAI Act
• the Regulation
• Personal Injury Commission Rules 2021
• Civil Liability Act 2002

Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission

[2022] NSWPIC 76

15 February 2022