Lee v Allianz Australia Insurance Limited
[2023] NSWPIC 232
•22 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Lee v Allianz Australia Insurance Limited [2023] NSWPIC 232 |
| Claimant: | Doo Ho Lee |
| insurer: | Allianz Australia Insurance Limited |
| SENIOR Member: | Brett Williams |
| DATE OF DECISION: | 22 May 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether for the purposes of sections 3.11 and 3.28 the accident was caused wholly or mostly by the fault of the claimant; where insurer alleged contributory negligence of 65%; accident in the early morning on a country road with single lanes in each direction; where the claimant failed to activate his right hand indicator, and commenced a right hand turn into the path of the insured driver’s vehicle, that he knew was travelling in the southbound lane; where the insured driver had formed the view that the claimant was going to make a right hand turn, and knew, or ought to have known, that he was going to do so imminently; Held – the accident was caused by the fault of both drivers; finding that the claimant’s contributory negligence was greater than 61% would not be just and equitable; for the purposes of sections 3.11 and 3.28 the accident was not caused mostly by the fault of the claimant. |
| determinations made: | Certificate Issued under section 7.36(4) of the Motor Accident Injuries Act2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 the accident on 15 June 2022 was caused neither wholly nor mostly by the fault of the claimant. 2. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,800 plus GST. |
REASONS FOR DECISION
BACKGROUND
Mr Doo Ho Lee (claimant) was injured in a motor vehicle accident that occurred on the Escort Way, Eugowra, in the early morning of 15 June 2022. He subsequently 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 other vehicle involved in the accident.
On 29 September 2022 the insurer denied the claim on the basis that the accident was caused mostly by the fault of the claimant. In this regard, the insurer found that the contributory negligence of the claimant was 65%. On 8 November 2022 an internal reviewer affirmed the insurer’s decision.
These proceedings were commenced by the claimant on 5 December 2022. The dispute about whether the accident was caused mostly by the fault of the claimant for the purposes of s 3.11 and s 3.28 is a miscellaneous claims assessment matter within the terms of Sch 2 cl 3 MAI Act.
PRELIMINARY CONFERENCE
A preliminary conference was held on 24 January 2023. At that time, the insurer confirmed that, for the purposes of s 3.11 and s 3.28 of the MAI Act, it conceded that the accident was caused by the fault of the insured driver. The claimant’s position was that the accident was not caused by any fault on his part.
Leave was sought, and granted, for the insurer to issue a direction for production on NSW Police. Directions were made for the provision of a joint bundle of documents relied on by the parties, together with updated submissions.
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 (PIC Act) and Procedural Direction PIC2, I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
EVIDENCE
The parties have provided a joint bundle that contains all the evidence they rely on in the proceedings. I have read and considered all the material in the joint bundle. In circumstances where a number of critical facts are agreed between the parties, I do not propose to provide a summary of all the material in the joint bundle. I will canvas relevant aspects of the evidence necessary to illuminate my path of reasoning.
Body-cam footage
The material relied on by the parties contains body-cam footage from members of NSW Police that attended the accident scene.[1] The footage depicts the scene of the accident, including the position of the vehicles involved where they came to rest after colliding. The footage also depicts the claimant being extracted from his vehicle. Whilst the truck driven by the insured driver is upright, the claimant’s vehicle is seen to be resting on its passenger side. Damage to the front driver’s side of the truck in the region of the driver’s side headlight can be clearly seen in the footage.
[1] IMS ID – 13211313-0005, IMS ID-13325299-0001, IMS ID-13325337-0004, IMS ID-13673711-0003, IMS ID-13673714-0004, IMS ID-13673722-0001.
The footage in IMS ID-13673711 records the insured driver’s version of events taken at the accident scene. The footage also includes a version of the accident taken from the claimant, and is date stamped 5 August 2022. I will address both versions of the accident later in these reasons.
Claimant’s version of the accident
The NSW Ambulance Electronic Medical Record dated 15 June 2022 (ambulance report) contains, relevantly, the following description of the accident provided by the claimant:
“…Driver states he was almost stationary, turning right into driveway when he was hit from behind, causing him to be pushed onto the opposite side of the road and roll onto passenger side. Pt states he was wearing he [sic] seatbelt, but when suspended by it he was finding breathing difficult so he undid seatbelt, causing him to fall approx lm onto passenger side window/footwell, landing on left hand side. Pt limited english, NESB…”
The claimant made a claim for statutory benefits dated 4 July 2022 (claim form). The claim form contains the following description of the accident:
“The Claimant was the driver of a white Toyota Hilux, bearing New South Wales registration CV34NM. The Claimant was driving in an easterly direction on the Escort Way, Eugowra, NSW. The Claimant turned on the right indicator to make a right turn into Nanga, 7017 the Escort Way, Eugowra, NSW. Suddenly, the driver of a big truck, which was traveling behind the Claimant, increased speed to overtake the Claimant's vehicle. As a result, the driver at fault rear-ended the Claimant's vehicle at high speed. Due to the impact of the collision, the Claimant's vehicle fell to the side.”
Audio and video footage of the version of the accident provided by the claimant at Auburn Police Station on 5 August 2022 is relied on by the parties. The interview was conducted with the assistance of a Korean interpreter. I have considered the footage in its entirety. It is consistent with the version contained in the transcription of the interview between the insurer’s investigator and Constable Rogers, that records as follows:[2]
“A Yep. Constable Chuong from Auburn Police Station the camera in front of me is recording our conversations and actions, yeah the camera’s recording conversations and actions, hello, yeah the camera is recording our conversations and actions, okay I’m going to ask you some questions about a motor vehicle collision that you were involved in at 6.55am on Wednesday the 15th of June 2022; I think it was around 7am; yeah I said 6.55; yep; okay do you agree you were involved in a collision that occurred outside 7017 The Escort Way Eugowra; yes that’s right around 1[5th] of June yes; okay I’ll ask you some questions in relation to what happened okay, you don’t have to do or say [or do] anything if you do not want to; yeah; however anything you do say or do I can record and use that recording in court do you understand; yes; at approximately what speed were you traveling along the Escort Way like the road; because I was, cause I have to turn right before the accident I was doing under ten k, kilometres; okay what about on the road prior; sorry; what about on the road prior to the collision; I was traveling about eighty to ninety then I had to slow down because I had to turn right in four hundred metres so I was slowing down and then slowly slowing down onwards; okay and what was [your] reason for turning right; / was doing a delivery at 7017 I need to go to turn right that’s why I could turn right; okay prior to turning right did you indicate to turn right; before I was turning right before about four hundred metres I’d been indicating that I’m going to turn right; okay it’s alleged that you stopped very quickly to turn into the driveway what was the approximate distance when did you start slowing down; because i had to turn right I’ve been slowing down from four hundred metres and I cannot just quickly turn right because the car is a truck and there’s a car vehicle so i cannot suddenly turn right because it will tip over so for twenty metres, thirty kg onwards I was slowing down then turn onto driveway; okay what was the visibility like; visibility was good; sorry; visibility was good; okay was it daytime, night time was the sun up; there was no light, there was no sunlight; were there street lights; there was no street lights; okay, what was the road conditions was it a sealed road or was it unsealed; it was a service road; okay and was it dry or wet; it was not wet; okay were you wearing your seatbelt; yes I was wearing a seatbelt; do you have any conditions that you have to abide by on your driver licence; pardon; do you have any conditions that you have to abide by on your driver licence for example do you have to wear glasses; licence states that when I was driving it states that I need to wear spectacles; okay were you wearing spectacles; yes; okay do you have any other information for me that might assist, that might assist in the investigation; / was trying to turn right but I had to stop because I was turn right I saw the mirror and the car was trying overtake me but on the right it was that lane near it is not possible to overtake so I had to stop and I was able to see the car pretty well because there was lights coming a car so I can see and if I had to turn right there would be a big accident so I wasn’t able to turn right straight away and there was a big car I think it was about one kilometre away but I can see that that car has followed up to me that’s why from four hundred metres I’d been slowing down and I’m not able, I wasn’t able to stop I’m not able to turn right because of the car that’s what I saw and that’s how I describe the accident, I’m on this road regularly every, almost every Wednesday because it’s a hundred kilometre zone I’m very much aware of it so I always be careful when there’s a car coming in front or a car coming from the rear because I cover this road every day I be careful because it’s a hundred kilometre zone and I go this road on that time every time usually at the time, at that time usually; okay thank you for your time appreciate it.”
[2] In response to Q143.
The claimant gave a statement dated 13 October 2022.[3] The statement confirms that the claimant had the assistance of a Korean interpreter. In his statement, the claimant provided details of the date, time and location of the accident, together with his employment as a delivery driver. He states that the brake lights and indicator lights on the vehicle “both worked fine”. He states that he had set off from Sydney at approximately 2.20am the morning of the accident, that he had “driven the road many times” and that he was “very familiar with the road and the property near where the [accident] occurred”.
[3] While the statement records that it was taken by telephone on 5 October 2022, the date 13 October 2022 is recorded above the signature of the claimant and the witness on the last page.
The claimant states that on the morning of the accident, the weather was fine and dry, and that the visibility around the area was good. He states that he had a clear view of the road ahead and behind him. He states that there was a single truck driving behind him, and no other nearby traffic. He first observed the truck travelling behind him about two or three kilometres before the accident area. He states that it was his intention to turn to his right side into the entrance to a property (No. 7017) to perform a delivery.
At [16], the claimant states as follows:
“16. I put my right indicator on about 400 metres before the entrance. I was going 80 or 90 kilometres per hour. I slowed as I approached. I checked my right-side rear mirror and saw that the truck had now moved into the oncoming traffic lane (and on my right side) but still behind me about 100 to 120 metres or so. As far as I know, you can’t overtake at that point. I did not move my car from the lane I had been travelling in at any time before the accident happened. I slowed right down near the entrance but did not came [sic] to a stop. I did not begin a turn to the right at all as the truck was now right behind me. All of a sudden, the truck ran into me from behind.”
The claimant states that he did not recall exactly what part of his vehicle the truck first struck, and was not sure at what speed the truck was travelling.
I do not accept the claimant’s evidence that the insured driver’s vehicle hit his vehicle from behind. Nor do I accept that he did not commence making a right hand turn into the path of the insured driver’s vehicle while it was traveling in the southbound lane. As will be seen, I have found that the vehicles collided side on.
Insured driver’s version of the accident
The accident occurred at approximately 6.55am. Body-cam footage[4] records the insured driver providing an account of the accident at the scene from 7.17am, as recorded by the time stamp on the footage. I have proceeded on the basis that the time stamp is accurate. The audio of the account provided by the insured driver is recorded in the transcript of interview between the insurer’s investigator and Constable Rogers. I have listened to the account in the body-cam footage. It accords with the version transcribed in response to Q137 in the transcript as follows:
“A What I’ll do I’ll just get a quick version off you obviously there’s been a collision with your car and his car yeah just give me a run down, what happened; alright I was going to the Yarra by the way he only had one left hand car light that’s all he had on; yep; and I was following him and he’s doing a hundred and he’s slowing down to eighty he kept, looked like he was looking in the, (inaudible 0:20:19.9) yep anyway come up here and he, and he, i could see like he was going to stop somewhere; yep; and he stopped right in the middle of the road and I was just going to go around him; yep; and I just started coming out and then he pulled out right in front of me and I had nowhere to go; yep; and hit him sideways; oh okay, how fast do you reckon he was going just like speed he was going about a hundred; yeah a hundred and he’d slow down to about eighty right there; yep; right where and then he stopped and I had no where to go, yeah; yep; / was right behind him; how heavy’s that roughly is that a load as well or; about fifty yeah right; that’s why I hit him so far across the road; yeah fair enough; he would of been stopped right there to start turning out in front of me right as I was right behind him; yep no dramas what I’ve got to do is just a quick breath test to tick that box, you haven’t had anything to drink; that’s it.”
[4] IMS ID-13673711-0003.
In addition to the statement given to police at the scene of the accident, that is recorded in the body-cam footage, there is body-cam footage[5] which records the insured driver stating to police that the claimant “had no blinkers”, which I take to mean that the claimant did not activate his blinkers.
[5] IMS ID-13673714-0004 at 07:38:30.
There is a transcript of an interview that took place on 13 September 2022 between the insured driver and an investigator instructed by the insurer. The insured driver states that he had been driving trucks “all his life”. On the morning of the accident he was driving to work. He was “born and bred” in the area where the accident occurred.
At the time of the accident he was heading northeast, away from the town of Eugowra heading towards the quarry at Toogong. There was a single lane in each direction. He stated as follows in response to Q58:
“Well this guy was going fast he was doing a hundred then he was slowing back down to eighty he was going speed back up to a hundred then he would slow back down, speed back up, slow back down he was obviously looking for a gateway and I knew he was looking, that’s what it looked like to me he was looking for a gateway to turn into and then yeah I was doing less probably when the accident happened I would of been doing probably sixty, seventy or something maybe less cause he ...”
He went on to state that:
“I was following [the claimant] cause yeah it was dark and he had one taillight on the left hand side of his vehicle, that’s all he had one taillight on the left hand side”.[6]
[6] Response to Q60.
And that:
“I was following him and when he was driving like that erratically speeding up slowing down I didn’t know where he was going he just took off in front of me and then all of a sudden he’s pulled up right on the left hand side off to the left hand side of the lane and then just as I went to avoid him ...”.[7]
[7] Response to Q61.
The insured driver states that it was dark when the accident happened. The transcript records the following exchange:
“Q73. You’re travelling behind this vehicle that’s situated in front of you. What sort of gap was there between you and the vehicle in front just in the moments before he attempted to turn?
A Yeah well he kept speeding up and taking off from me and I eventually catch up to him at the normal speed limit ninety five what I was doing and I’d eventually catch up to him cause he was slowing down and he was obviously looking for a gateway or something he’d slow right back down to eighty and then he’d take off again up to a hundred and then I was catching back up to him again and then all of a sudden he must of seen the gateway that he wanted to go to and he pulled over to the left real quick and then he just turned right in front of me, he turned right smack in front of me I had nowhere to go I locked the brakes up and I just skidded sideways and trying to avoid him and I thought I nearly would of avoided him and right at the last minute the truck tapped the side of his didn’t even do any damage to his car it just tapped the side of his car we hit side on my right side to his right side and as it clipped him on his, on the side.
Q74. Alright just to be clear, did it appear to you as though the other vehicle was looking to turn to the left or the right off The Escort Way?
A Well he looked like he was going to turn to the right, he was looking, I couldn’t tell where he was going to turn, left or right but I knew where the gateways were where he must of been going to turn and I thought he was just going to stay there on the left hand side and then and I could go around him and then as I was going around him he turned right, right in front of me.
Q75. Right, so relative to your line of travel where was the gateway that you believed he was trying to go to, on the left or the right?
A On the right hand side.
Q76. Alright and ...?
A On the right hand side cause there was nothing on his, there was nothing on his left, there was nothing on his left so he sort of, he must of been pulled over to the left and then he just turned right right in front of me.
Q77. Okay so...
A And I was already committed to ...
Q78. You both, you were both,
A I was committed to going ...
Q79. Sorry, okay, you were both approaching the roadway and the vehicle in front of you pulled to the left initially is that correct?
A Yeah, pulled to the left and he had no blinker, there was no blinkers whatsoever at the back of his vehicle.
Q80. And did you see the brake lights go on?
A No, no, well he touched them a couple of times and then all of a sudden I seen the brake lights when he stopped he only had one left hand taillight remember and he just pulled up, he stopped real quick and then he decided to turn real quick in front of me he just, he mustn’t of realised how far, that I was overtaking him and yeah bang I had nowhere to go so I locked them up I had a bout ten feet to spare and my truck just turned sideways and we tapped side by side.”
The insured driver states that the claimant’s vehicle had a left rear taillight illuminated and didn’t have any left blinker, or right blinker to turn right. He states that there was no right hand tail light, and that the claimant turned right in front of him.
He states that the approximate distance when he saw the claimant’s vehicle slow down was 20 meters. He states that he didn’t know the claimant was going to stop, or stop and turn right. He states that his vehicle was travelling “at speed” when the claimant’s vehicle came to a stop, and that he activated his right blinker to go around the claimant. Despite saying that the claimant’s vehicle came to a stop, the transcript records the following exchange:
“Q90. When he pulled to the left did the vehicle stop completely before it moved to the right?
A No, no it nearly stopped and then just turned right ...”
I consider that it is more probable than not that the claimant’s vehicle did not come to a complete stop before he made a right hand turn.
The insured driver states that when the claimant turned across his path he “hit the brakes and turned left”, as he had “nowhere to go”.
Other evidence
There is a transcript of the investigator’s interview with Constable Rogers on 30 September 2022. The Constable confirmed that he was the first member of NSW police to attend the accident scene, arriving five to ten minutes after the accident occurred. He provided a description of the scene, including the position of both vehicles. He states that there were skid marks in a northerly direction going from the southbound lane into the northbound lane. He confirmed that the claimant was in the cab of his vehicle because it had landed on its side. Where the accident occurred there were “double lines”. At the location of the accident there was a slight bend in an otherwise “fairly straight road”. He stated that the claimant was taken by ambulance from the scene, and that a statement was not taken from the claimant. There were no witnesses. The versions of the accident provided by the claimant and the insured driver, that are included in the transcript of the interview, are recorded earlier in these reasons.
The NSW police COPS report, to which reference will be made later in these reasons, contains a narrative of the accident.
The joint bundle includes photographs taken by police on the day of the accident, together with photographs of the accident location taken by the insurer’s investigator. The photographs taken by NSW police include photographs of the damage to both vehicles, and skid marks on the road way.
SUBMISSIONS
Claimant’s submissions
The claimant’s case is that the accident was not caused by any fault on his part. He argues that prior to the accident he started reducing his speed from approximately 400 metres before Nangar, and that he gradually reduced his speed as he approached his destination. He submits that when he was close to the entrance to Nangar, his speed was approximately 10 kilometres per hour. He submits that he checked his right side mirror before he started to turn right, and saw that the insured driver’s vehicle was in the oncoming traffic lane. It is argued that he did not stop his vehicle nor begin a right turn because he thought it was unsafe to do so.
The claimant submits that the insured driver was not maintaining a safe distance behind him, and the manner of his driving was erratic. He argues that when he checked the insured vehicle through the rear-view mirror, before he started reducing speed, there was sufficient distance between the insured vehicle and his vehicle.
The claimant argues that the facts in these proceedings are similar to those in Stufano v Allianz Australia Insurance Limited [2021] NSWPIC 397 (Stufano). This submission is of limited assistance; there are factual differences, including that in Stufano the claimant was found to have indicated her intention to turn. Proceedings such as these and Stufano inevitably turn on their own facts.
The claimant argues that the insured driver failed to keep a safe distance from his vehicle. I accept this submissions. It is submitted that, if, as alleged by the insurer, the claimant appeared to be searching for a gate to turn right into, and drove erratically, the insured driver should have maintained enough distance from the claimant’s vehicle to allow him sufficient time to stop his vehicle “at any time”. In this regard, the claimant relies on r 126 of the Road Rules 2014 (Road Rules). That rule states that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
The claimant argues that the fact that the collision occurred shows that the insured driver failed to comply with r 126. Had he done so, it is argued, the accident could have been avoided. I am satisfied that the insured driver failed to drive a sufficient distance behind the claimant’s vehicle so he could, if necessary, stop safely to avoid a collision with the claimant’s vehicle, and that his failure to do so was causative of the accident.
The claimant also relies on r 140 of the Road Rules. That rule stipulates that a driver must not overtake a vehicle unless the driver can safely overtake the vehicle.
Reliance is placed on the agreed fact that for at least two to three kilometres before the accident location the claimant and the insured driver drove in the same lane. It is submitted that the insured driver had sufficient opportunity to observe the claimant’s vehicle and predict that he might turn to the right at any time. I accept this submission.
The claimant disputes the insured driver’s evidence that only one of the tail lights of the claimant’s vehicle was working and it was dark. In the alternative, if that evidence is accepted, the claimant argues that the insured driver should have been more careful when driving behind his vehicle, and should not have assumed that the claimant would stay in the left lane.
It is submitted that a reasonable person in the insured driver’s position would have known that it was dangerous to overtake the claimant’s vehicle because he could turn right at any time. In the claimant’s submission, a prudent driver would have maintained a safe distance behind his vehicle and waited until he had made a right turn. I accept this submission.
The claimant submits that he acted with reasonable care to other drivers on the road. He relies on his evidence that he turned on his right indicator and reduced his speed to approximately 80 to 90 kilometres per hour, from approximately 400 metres before the destination. He also points to his evidence that he checked his right side mirror and saw that the insured vehicle had moved to the oncoming traffic lane on his right side, and, in those circumstances, decided to continue to drive straight because it was unsafe to make a right turn.
The claimant disputes the insurer’s allegation that the manner of his driving prior to the accident was erratic, and denies the allegation that he suddenly pulled up.
The claimant submits that both he and the insured driver had an unbroken dividing line on their side of the road, with a broken dividing line to the right of the unbroken dividing line. Because the insured driver attempted to overtake his vehicle before the dividing line became a broken line, the insured driver was not permitted to overtake the claimant’s vehicle. Rule 134 of the Road Rules is relied on in this regard.
It is also argued that the insured driver breached r 142 of the Road Rules because he knew that the claimant was trying to make a right turn. The claimant submits that, while he is unsure of the speed at which the insured driver was traveling prior to the collision, the insured driver was driving too fast prior to the collision and failed to maintain a safe distance behind him.
Insurer’s submissions
The insurer’s submissions record that it concedes that the insured driver was partly at fault “in the occurrence of the subject accident”. It is submitted, however, that the claimant’s level of culpability should be assessed as greater than that of the insured driver, so as to satisfy a finding that the accident was caused mostly by the fault of the claimant for the purposes of s 3.11 and s 3.28 of the MAI Act.
The insurer’s submissions lodged with its reply argue that contributory negligence is established because the claimant had failed to wear a seatbelt. The insurer has subsequently confirmed that it does not press this submission[8].
[8] Insurer’s submissions dated 21 April 2023 at [3].
The submissions record that the insurer disputes the claimant’s allegation that the insured driver attempted to overtake his vehicle by travelling into the oncoming lane of traffic and in doing so, caused the collision and says that the claimant had pulled over to the left side of the lane towards the gravel and slowed to a stationary stop, then without using his indicator, suddenly turned right across the insured driver’s path, thereby causing the collision.
The insurer submits that the insured driver’s version should be accepted, and the Commission ought be satisfied that the accident was caused mostly by the fault of the claimant. In this regard, it is argued that a finding should be made that the claimant’s contributory negligence amounts to at least 65%.
It is submitted that inconsistencies referred to in the insurer’s submissions at [5.7] demonstrate that the claimant’s version of events are unreliable and that his account cannot be considered credible. The insurer argues that there are no similar inconsistencies contained in the insured driver’s version of events or evidence.
The insurer argues that if it is found that the claimant did not indicate to turn right or did indicate, but in a manner that was insufficient and did not allow for the insured driver to anticipate this manoeuvre and alter his path accordingly, a degree of culpability will be found on the part of the claimant. It further submits that, if it is found that the claimant had commenced turning right, this act constitutes negligence on behalf of the claimant in failing to heed other vehicles on the roadway, in failing to operate his vehicle safely and causing a collision.
It is submitted that the accident could have been avoided had the claimant acted reasonably within the circumstances by indicating his right turn, not turning across the path of the insured driver’s vehicle and maintaining a speed that was appropriate for the roadway.
The insurer submits that the Commission should be satisfied that the claimant pulled slightly to the left of the lane, slowed to less than 10kmph and did not sufficiently indicate in a manner that would alert the insured driver that he was to turn right.
The submissions record that the insurer does not dispute that the insured driver entered into the oncoming lane of traffic.
It is submitted that a reasonable person cannot and is not reasonably expected to anticipate every action that another vehicle on the roadway may perform. It is argued that, in the context of the accident that is the subject of these proceedings, such an obligation would place an expectation on the insured driver to anticipate and respond to a situation where the claimant suddenly and without warning, stopped and turned right at any given time over the distance of at least 400m. It is argued that it would represent an unreasonable and onerous burden to place on the insured driver to require him to undertake a guessing exercise and pinpoint exactly where and when the claimant would suddenly turn.
It is further submitted that the expectation that the insured driver should have known or was expected to anticipate that the claimant was to turn right at the exact moment he did, places a burden on him that goes above and beyond the standard imposed by the legislation and common law, and Podrebersek and Stufano, on which the claimant relies.
The insurer refers to and relies on Dent v Calcagno [2016] NSWCA 289 (Dent). As will be seen, the facts in Dent are different to the facts found in these proceedings. Among other matters, the appellant in Dent did not see the respondent, and the respondent suffered amnesia as a result of his head injuries: Dent at [4]. Indeed, it was found that the appellant did not look behind her before executing a right hand turn. Further, there was a finding at [46] that the respondent did not establish that the appellant failed to activate her indicator at a point at which he would have opportunity, on the evidence, to avoid the collision. Like Stufano, Dent was a case that turned on its facts.
It is argued that the claimant’s version of events cannot logically stand, there is no inconsistency, illogicality or error contained in the insured driver’s version of events, and the extrinsic evidence wholly aligns with the insured driver’s version.
The insurer submits that the accident was caused mostly by the fault of the claimant because he:
(a) failed to operate his vehicle in a safe manner;
(b) failed to pay attention to his surroundings and other road users;
(c) failed to maintain a consistent speed;
(d) drove in an erratic manner that was not reasonable or safe in the circumstances;
(e) did not indicate to turn right;
(f) commenced a right hand turn, was aware of the risk of collision, and failed to control his speed and direction in such a way so as to avoid a collision;
(g) suddenly and without warning turned across the path of the insured driver’s vehicle, and
(h) failed to keep a proper lookout when completing the right turn, despite being aware of the position, presence and speed of the insured vehicle on the roadway.
DETERMINATION
The claimant is not entitled to weekly payments of statutory benefits or benefits for treatment and care more than 26 weeks after the accident if the accident was caused wholly or mostly by his fault: s 3.11 and s 3.28 of the MAI Act[9]. The MAI Act defines fault as negligence or any other tort.
[9] The amendments made to s 3.11 and s 3.28 by the Motor Accident Injuries Amendment Act 2022 do not apply to a motor accident that occurred before the commencement of the amendment, 1 April 2023: Schedule 4 Savings, transitional and other provisions.
Divisions 1-4 and 8 of Part 1A of the Civil Liability Act 2002 (CL Act) apply to motor accidents. Section 5 of the CL Act defines negligence as “…failure to exercise reasonable care and skill.” Sections 5B, 5D and 5R of the CL Act apply to the claim.
The duty of the driver of a motor vehicle is to take reasonable care having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 McHugh J at [26].
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: Manley v Alexander [2005] HCA 79 (Gummow, Kirby and Hayne JJ) at [12].
Findings – the accident
A range of facts have been agreed between the parties, as recorded in the statement of agreed facts contained in the joint bundle. Where I have made a finding that reflects an agreed fact, I am satisfied that the finding is supported by the evidence.
I make the following findings with respect to the circumstances in which the accident occurred[10]:
[10] * designates a fact that has been agreed between the parties.
(a) The accident occurred at approximately 6.55am on 15 June 2022, near Nangar, 7017 the Escort Way, Eugowra.*
(b) When the accident occurred it was dark, and the road was not illuminated by street lights. The evidence of the claimant and the insured driver supports this finding. The claimant told NSW police that “there was no light, there was no sunlight”. He also confirmed that there were no street lights.
(c) The claimant was driving a White Toyota Hilux Utility and the insured driver was driving a Mack Rigid Tipper.*
(d) At the time of the accident the claimant was working as a delivery driver and was making a delivery to Nangar, 7017 the Escort Way, Eugowra.*
(e) The claimant made deliveries to Nangar on a weekly basis, commencing from approximately February 2020. Each time, he drove the same vehicle that he drove on the day of the accident.*
(f) The Escort Way has two lanes travelling north to south, there being a single lane in each direction.*
(g) The speed limit in this area is 100 km/h.*
(h) Both the claimant and the insured driver were initially travelling in a northbound direction on the Escort Way.
(i) The insured driver was travelling directly behind the claimant, and had done so for approximately two to three kilometres before the accident occurred.*
(j) The claimant first observed the insured driver’s vehicle travelling behind him approximately two or three kilometres before the accident. I accept the claimant’s evidence in this regard.
(k) As the Escort Way approaches Nangar, the lines between these two lanes become double lines, which consist of an unbroken line and a broken line, and drivers are not allowed to overtake other vehicles in this area.*
(l) The claimant intended to turn right into the entrance to Nangar and altered his speed in the 400m preceding his destination.*
(m) The right hand indicator of the claimant’s vehicle was not activated prior to the collision. I prefer the evidence of the insured driver in relation to this issue. It reflects what he told police at the accident scene and his subsequent statement.
(n) From approximately 400 meters prior to the collision, the claimant’s vehicle decelerated and accelerated on a number of occasions before the vehicle decelerated to a speed of less than 10km/h. I do not consider that the claimant’s actions in this regard should be characterised as “erratic”; his actions were, in my opinion, entirely consistent with a driver searching for their destination in the dark on a country road.
(o) The claimant’s vehicle did not come to a complete stop before he commenced to make a right hand turn. This finding is supported by the evidence of both the insured driver[11] and the claimant.[12]
[11] Transcript of interview – JB17 answer to Q90.
[12] See the claimant’s version of events recorded in the ambulance report and his statement dated 13 October 2022 at [16].
(p) When the claimant’s vehicle slowed down to a speed of less than 10km/h, it was positioned to the left of the northbound lane, and wholly within the northbound lane. This finding is supported by the insured driver’s evidence, which I accept, that the claimant “pulled over to the left”[13], and that the claimant’s vehicle was “on the left hand side”[14]. His evidence was not that the claimant’s vehicle had moved out of the northbound lane. The claimant’s evidence is that he did not move his car from the lane he had been travelling in.[15]
(q) From approximately 400 meters prior to the collision the insured driver had formed the view that the claimant intended to turn right. This finding is supported by the evidence of the insured driver.[16]
(r) Prior to the collision occurring, the insured driver entered the opposite (southbound) lane.*
(s) The insured driver moved his vehicle from the northbound lane into the southbound lane because he was travelling at a speed of between 60 to 70 km/h, and the claimant’s vehicle had decelerated to a speed of less than 10km/h, resulting in him being a position whereby he would not have been able to avoid colliding with the claimant’s vehicle had he remained in the northbound lane. This finding, in my view, is supported by the facts I have already found and the apparent logic of events.
(t) Before he moved his vehicle into the southbound lane, the insured driver activated his vehicle’s right hand indicator. I accept his evidence in this regard.
(u) As he slowed his vehicle to below 10km/h, and before he made a right hand turn, the claimant was aware that the insured driver’s vehicle had moved into the oncoming (southbound) traffic lane. The claimant’s evidence supports this finding[17].
(v) After slowing his vehicle to a speed of less than 10kmph, the claimant commenced making a right hand turn, into the path of the vehicle driven by the insured driver.
(w) When the claimant turned across his path the insured driver applied his brakes and turned to the left. I accept his evidence in this regard.
(x) The insured driver’s vehicle skidded from the southbound lane and collided with the claimant’s vehicle side on. I accept the evidence of the insured driver that his vehicle hit the claimant’s vehicle sideways. This finding is also supported by Constable Rogers’ evidence that it “appeared the impact was side on with the prime mover the damage to the prime mover was on the driver side front panel the right side”. It is also supported by the narrative in the police report that “the Mack locked up his brakes and began losing traction causing the vehicle to do a one eighty degree turn as the vehicle[s] paralleled with each other they collided causing the Hilux to roll on it’s side.”[18] The finding is also consistent with the skid marks identified by Constable Rogers at the accident scene, that he determined were in a northerly direction going from the southbound lane onto the northbound lane,[19] and were from the insured driver’s vehicle[20].
(y) The claimant’s vehicle came to a rest on its left side.*
[13] Transcript of interview with insured driver - answer to Q73.
[14] Transcript of interview with insured driver - answer to Q74and Q76.
[15] Claimant’s statement dated 13 October 2022 at [16].
[16] See for example the version he gave police at the scene of the accident and in transcript of interview - answer to Q73 and Q74.
[17] Claimant’s statement dated 13 October 2022 at [16].
[18] Transcript of interview with Constable Rogers - answer to Q146 and narrative in COPS report.
[19] Transcript of interview with Constable Rogers - answer to Q21.
[20] Transcript of interview with Constable Rogers - answer to Q22.
Findings – fault
I am satisfied, on the facts that I have found, that the claimant failed to exercise reasonable care in the driving of his vehicle. I find that reasonable care required the claimant to activate his right hand turn indicator before he reduced his speed to below 10km/h and commenced making a right hand turn into Nangar. Further, I find that the exercise of reasonable care required the claimant not to commence making a right hand turn until it was safe to do so. I am satisfied that the claimant knew that the insured driver’s vehicle was travelling in a northerly direction in the southbound lane. I find that he knew, or ought to have known, that the insured driver’s vehicle was travelling at a greater speed than his vehicle. It may be that he misjudged the distance between the two vehicles. I am satisfied that the exercise of reasonable care in the circumstances required him to wait until the insured driver’s vehicle had passed his before he made a right hand turn.
I find that the risk of not taking these precautions was foreseeable and not insignificant. A reasonable person in the claimant’s position would have activated his right hand indicator and refrained from making a right turn until the southbound road was clear. There was a high probability that a collision would occur if care were not taken. The burden of taking precautions to avoid the risk of harm (a collision) was not significant, and it was likely that the harm caused by not taking the identified precautions would be significant. I find the claimant failed to exercise reasonable care, and that his failure to exercise reasonable care was causative of the accident. Accordingly, for the purposes of s 3.11 and s 3.28 of the MAI Act I find that the accident was caused by the fault of the claimant.
The insurer concedes that the accident was caused by the fault of the insured driver. I am satisfied on the evidence before me, and I find, that for the purposes of s 3.11 and s 3.28 of the MAI Act the accident was caused by the fault of the insured driver.
On his own evidence, the insured driver had formed the view that the claimant “was obviously looking for a gateway” and that he “knew [the claimant] was looking” and he “looked like he was going to turn to the right”. Given that the location was dark, given the insured driver had formed the view that the claimant intended to turn right, and given that the insured driver had formed the view that the claimant was “erratically speeding up [and] slowing down”, I find that the exercise of reasonable care required him to drive a sufficient distance behind the claimant’s vehicle so that he could bring his vehicle to a stop safely to avoid a collision with the claimant’s vehicle. He did not do so, and accordingly failed to exercise reasonable care. I am also satisfied that, given the prevailing circumstances, the exercise of reasonable care required the insured driver to drive at a lower speed. As he did not do so, he failed to exercise reasonable care. His fault in these respects caused the accident.
I find that the risk of not taking the precautions to which I have referred was foreseeable and not insignificant. I find that a reasonable person in the insured driver’s position would have taken those precautions. There was a high probability that a collision would occur if care were not taken, the burden of taking precautions to avoid the risk of a collision was not significant, and it was likely that the harm caused by not taking the identified precautions would be significant – the insured driver was, after all, driving a Mack truck at speed.
Was the accident caused mostly by the fault of the claimant?
Having found that the accident was caused by the fault of both drivers, it cannot be said that the accident was caused wholly by the fault of the claimant and, for the purposes of s 3.11 and s 3.28, I find accordingly. The question that then arises is whether the accident was caused mostly by the fault of the claimant.
Sections 3.11(2) and 3.28(2) both state 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 s 3.38) was greater than 61%.
Section 3.38(1) states, relevantly, that 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 that section) to weekly payments of statutory benefits. The enacted law relevantly is s 4.17 of the MAI Act, the Law Reform (Miscellaneous Provisions) Act 1965 (LR Act), s 9 and the Civil Liability Act 2002 (CL Act), ss 5R and 5S. The variations to the enacted law made by s 3.38(2) and s 4.17(2) of the MAI Act are not relevant to these proceedings.
In a case that does not involve a finding of contributory negligence made under s 3.38(2) or s 4.17(2) an assessment of what is "just and equitable in the circumstances of the case" for the purposes of s 4.17(3) of the MAI Act and s 9(1) LR Act involves a comparison of the kind described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at [494]:
“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. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”[21]
[21] Davis v Swift [2014] NSWCA 458 (Davis) per Meagher JA at [28].
Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that the principles applicable in determining whether a person has been negligent, which include those in s 5B, also apply in determining whether the person who has suffered harm has been contributorily negligent in failing to take precautions against the risk of harm which materialised[22].
[22] Davis at [29].
The claimant failed to activate his right hand indicator, and commenced a right hand turn into the path of the insured driver’s vehicle, that he knew was travelling in the southbound lane. Further, in my view he was the party who had the last opportunity to prevent the collision; he knew the insured driver’s vehicle was in the southbound lane, and could have prevented the accident by not commencing a right hand turn.
The insured driver had formed the view that the claimant was going to make a right hand turn, and he knew, or ought to have known, that he was going to do so imminently. Given the prevailing circumstances, he should have slowed his vehicle down, and maintained a safe distance from the claimant’s vehicle so he could avoid a collision. His failure to do so set in train the events that ultimately unfolded. There was no pressing urgency for him to drive “at speed” until such time as the claimant had found his destination. He was driving a Mack truck, a large and heavy vehicle, and knew the area well. Given the prevailing circumstances, he should not have driven in the manner that I have found he did.
Having considered the culpability of the claimant, and the relative importance of his acts and omissions in causing the accident, I have determined that, when compared to the culpability of the insured driver, and the relative importance of his acts and omissions in causing the accident, a finding that the claimant’s contributory negligence was greater than 61% would not be just and equitable.
Accordingly, I find that for the purposes of s 3.11 and s 3.28 of the MAI Act the accident was not caused mostly by the fault of the claimant.
Costs
The claimant seeks costs in connection with these proceedings under Schedule 1, Part 1, Clauses 3(1) and (2)(d) and (e) of the Motor Accident Injuries Regulation 2017, in the amount of $1,800 plus GST.
The insurer’s submissions record that it “defers” the question of costs to the Commission.
Having regard to the matters referred to in the claimant’s submissions at [46], and my assessment of the legal work involved in the proceedings, I find that the claimant’s reasonable and necessary costs in connection with the proceedings amount to $1,800 plus GST. The insurer is to pay that sum to the claimant.
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