Leow v Allianz Australia Insurance Limited
[2022] NSWPIC 166
•15 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Leow v Allianz Australia Insurance Limited [2022] NSWPIC 166 |
| CLAIMANT: | Fong Xie Leow |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Shana Radnan |
| DATE OF DECISION: | 15 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous assessment matter; the claimant a pedestrian crossing 20m east of intersection ran in front of two vehicles stopped for red light and subsequently is hit by insured travelling in the third lane; insured driver was travelling along Liverpool Road, in the right hand lane in a easterly direction; collision between the claimant and the insured driver as claimant walked/ran out in front of the insured without warning; speed limit 60km/h; insured driver travelling within the speed limit; insured driver faced with a solid green light; whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Held -the claimant was mostly at faut running into path of oncoming vehicle, insured driver was keeping a proper lookout; accident caused mostly by the fault of the claimant, no reason to change 80% contributorily negligent. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was caused mostly by the fault of the claimant. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 15 April 2022 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1826.00 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
On 24 December 2020 the claimant was a pedestrian, attempting to cross the roadway at a non designated pedestrian crossing when he was struck by the insured.
A claim was lodged for personal injury benefits. The insurer issued a liability notice on 29 January 2021 accepting liability for statutory benefits up to 26 weeks.
On 31 March 2021 the insurer issued a liability notice for benefits after 26 weeks, asserting contributory negligence of 80% and denying entitlement to statutory benefits beyond the initial 26 week period.
The Claimant sought internal review and a certificate of determination was issued on 3 November 2021 confirming the earlier decision.
The Claimant referred the dispute to the Commission for determination of liability pursuant to s3.11 and 3.28 of the Act.
The claimant commenced these proceedings in the Dispute Resolution Service on 1 December 2020. He argues that the accident was caused neither wholly nor mostly by his fault. The dispute constitutes a miscellaneous assessment matter.[1]
The application was lodged on 2 December 2021 and referred to me on 17 January 2022.
Evidence
Statements of Claimant
Constable Nichol obtained a statement on at the home of the claimant. He recorded in his notebook the following:-
“6. As I waked into lane there I accidentally walked in front of the car travelling in lane there and caused a collision..”
The Claimant in his own words described the accident in his personal injury claim form..
“I was crossing Liverpool Road Burwood in front of the Comfort Inn Hotel with my girlfriend. I tried to cross 3 lanes to the pedestrian island, in front of the crossing area. The traffic light was red. I crossed behind one car, then in front of another. I did not see the car in the 3rd lane and it hit me,”.
In a further statement dated 24 December 2020 the claimant at paragraph 9 stated:
“I checked left and right and could see that the cars in the first two eastbound lanes were stationary as they had stopped for the red light. AT this point I could not see the third lane as the traffic in the first two lanes obstructed my view. I then proceeded to cross the first two lanes of Liverpool Road in between stationary cars. As I reached the third eastbound lane, I looked right which is when I noticed the oncoming vehicle travelling at a speed around 40km/h to 50 km/h and the provisional license plate. I did not hear any brakes at this point. The vehicle then collided into my right side at the same speed at which I saw it coming towards me.
In a statement taken by investigator O’Neill dated 18 February 2021 with the use of Mandarin interpreter the claimant stated:
“26.I left the Comfort Inn Hotel a couple of minutes before the accident. My girlfriend waited out the front of the hotel while I went to get pizza. I have stayed at the Comfort Inn many times before and I have crossed the road outside many times before. I always wait until the traffic lights are red and traffic stops, and then I cross the road outside the hotel. It has always been safe doing that previously instead of using the crossing….
28.I walked out across the first 2 lanes. I was walking not running. I crossed the first 2 lanes and I continued walking out across the third lane 3 of 3. I didn’t stop to check as I assumed any cars approaching would see the lights at the intersection were red and would stop. I was looking toward the kebab shop when crossing the road.
29.I was struck by the vehicle before I ever saw it. I never heard it approaching. The vehicle was travelling eastbound in lane 3 of 3. I had no chance to take evasive action.”
The claimant believed that both he and the driver were at fault for the collision. His fault was that he did not cross on the pedestrian crossing and the driver was travelling too fast and should have slowed down for the red light. He stated the closest crossing was approximately 30m east of the intersection.
NSW Police Investigations (A6)
The Event Ref E76983806 recorded the incident as follows:
About 12.40 on the 24 December 2020 DR2 and her friend were in veh 2 which was travelling about 60km/hr east in the right lane of Liverpool Road, Burwood. There was a vehicle travelling in the middle lane, next to VEH2 on the left side.
It was at this time, without warning and for an unknown reason, PED ran from the north side of the curb of Liverpool Road, across the left and middle lane into the right lane. Upon seeing the PED, DR2 applied Veh 2 brakes however was unable to stop and as such, collided with the PED. WIT1 was driving in the opposite directions witnessed the PED run across Liverpool Road and collided with VEH 2 and stopped to help.
….Police spoke with multiple members of the public who were at the location, who all stated the PED has run across the road without warning and collided with VEH2.”
The subject incident was investigated by NSW Police who issued an event report dated 5 February 2021.
The police report noted that the incident occurred at approximately 12.40pm on
24 December 2020 approximately 20m east of the intersection of Quandong Avenue and Liverpool Road, Burwood. The speed limit in the area was noted to be 60km/h. The insured was travelling in the right hand lane of Liverpool Road in an easterly direction when the claimant attempted to cross Liverpool Road and, without warning, collided into the insured vehicle.
A more detailed account of the circumstances of the accident is set out on page 5 of the report which notes that the insured was travelling at approximately 60km/h in the right hand lane of Liverpool Road. There was a vehicle travelling in the middle lane, on the insured’s left hand side when, without warning and for an unknown reason, the claimant ran from the northern side kerb of Liverpool Road, across the left and middle lanes, into the right hand lane. Upon seeing the pedestrian, the insured driver applied the vehicle’s brakes however was unable to stop and collided with the pedestrian.
A witness travelling in the opposite direction on Liverpool Road observed the claimant run across Liverpool Road and collide with the insured vehicle.
Police viewed the insured vehicle and identified damage to the front bumper bar, bonnet and windscreen. Police spoke with multiple members of the public who were at the location who all stated the claimant/pedestrian had run across the road without warning and collided with the insured vehicle.
The police notebook of Constable Brett Nicholl contains a statement of the claimant to the effect that he had checked out of the Century Hotel and was wanting pizza from a shop on the opposite side of Liverpool Road. There were cars stopped in the eastbound lanes 1 and 2 of Liverpool Road and as he walked across the road, in between stopped cars, but did not see the insured vehicle driving in lane 3 as it was in his blind spot. The claimant stated he accidentally walked in front of the car travelling in lane 3 (the insured vehicle) and caused a collision.
The notebook reflects that the claimant stated he caused the collision by accidentally walking out in front of the vehicle in lane 3.
A statement from the insured driver taken at 12.53pm on the day of the accident was to the effect that she was driving in the right hand lane at Liverpool Road at approximately 60km/h. There was a vehicle travelling next to the insured vehicle, in the middle lane. At that time, the claimant ran across Liverpool Road, in front of the insured vehicle. The insured slammed her brakes on but could not avoid hitting the claimant.
A statement of a witness (details redacted) dated 23 January 2021 noted that he had been travelling in a westerly direction on Liverpool Road when he witnessed the subject collision. He observed the claimant get hit by the left hand side of the vehicle before going up onto the vehicle’s windscreen and onto the ground. He believed the claimant had entered Liverpool Road from the side of the roadway and was walking towards the centre dividing lane. He observed the insured vehicle to be travelling at a normal speed and that the set of lights was green in both directions.
The witness believed the claimant was at fault and caused the collision with the vehicle.
Photographs of the insured vehicle confirm damage to the centre bonnet and windscreen of the vehicle.
Statement of the Insured Driver, Enkhtsetseg Enkhbat dated 8 February 2021 (A5)
At the location of the collision, Liverpool Road, Burwood runs in an east west direction. The accident happened directly outside of 111 Liverpool Road, approximately one car space east of the front door of the Comfort Inn.
Liverpool Road has three lanes in each direction marked by a single broken line. The speed limit in the area was 60km/h.
The insured was familiar with the roadway and at the time of the collision, the traffic density was moderate to heavy in lanes 1 and 2 but clear in lane 3. There were vehicles in front, behind and to the side of the insured vehicle in the left two lanes but no traffic directly in front of the insured in her lane.
The insured was travelling in the eastbound direction of Liverpool Road in lane 3 of 3 at a speed of approximately 50km/h to 60km/h. The first two lanes had traffic congestion and were travelling slowly at an estimated speed of 30km/h to 40km/h. Lane 3 was empty with no traffic.
The insured first saw the claimant appear from her left hand side in front of her as he was trying to cross the roadway towards her right side. He was not on a pedestrian crossing and was not at the traffic lights. He was looking to the east, away from the insured, towards the other side of the roadway. He never looked at the insured.
The insured first saw the claimant’s head when he was in lane 2. At that point he was only about one third of a car length from the insured and was crossing the road between moving traffic.
The insured described the claimant to be running on a bit of a curve to the right and jumped out in front of her vehicle from the left hand side, just as she was passing the vehicle on her left. The claimant never checked his right side for oncoming vehicles and was running across the road, jumping out in front of her vehicle.
The insured tried to stop but did not have enough time. She braked and slowed down to a speed of about 30km/h. The incident occurred over a very short amount of time. She stated:-
“I tried to stop but I didn’t have enough time. I braked but I have no time to stop. I slowed down a bit but could not stop. I think I may have slowed down to about 30 Kph but I am not sure. The incident occurred in a very short amount of time, immediately before the collision, my friend yelled out and said there is a person and the impact then occurred.”… I don’t know why he was running across the road at the time..”
The insured did not recall seeing skid marks or debris on the roadway after the incident but did recall a screeching sound of braking before the impact.
The insured stated there was nothing in her vision in front to her left or right hand sides, other than the other traffic in the lanes around her.
The insured was of the view the claimant caused the collision by running across the roadway, between traffic without looking.
Statement of Tuul Byambaa dated 16 February 2021 (A5)
The witness was a front seat passenger in the insured vehicle. The witness described the traffic density to be moderate but lane 3 was clear of traffic and the traffic in lanes 1 and 2 was moving but slowly. The witness estimated the insured to be travelling at approximately 50km/h to 60km/h and immediately before reaching the Comfort Inn Hotel, where the incident occurred, the witness was looking at her phone and first saw the claimant when he came running in southerly direction across Liverpool Road from the witness’ left hand side towards the right hand side. The claimant appeared from between the slower moving traffic in lane 2 and was less than a car space from the witness’ vehicle when she first saw him. The witness stated the claimant never stopped moving and kept running into the lane in front of them. The witness could not recall where the claimant was looking but described the claimant to be running fast.
As soon as the witness observed the claimant she called out to the insured who had no time to take any evasive action to avoid the collision. The insured hit the brakes immediately but was too late to avoid collision.
“18...I first saw the claimant when he came running in a southern direction across Liverpool Road, in the directions from my left-hand side towards my right-hand side. He appeared from between the slower moving traffic in the left 2 lanes. The incident occurred so quickly and suddenly after I first saw him..
19.The claimant was less than a car space from us when I first saw him.The claimant never stopped moving, he kept running into our lane in front of us. I don’t remember where he was looking. He was running fast like sprinting.”
Insurer’sSubmissions
The subject accident occurred solely due to the negligence of the claimant who attempted to cross a three lane roadway when it was not safe to do so and without having regard to his own safety including ensuring that lane 3 was clear before he attempted to cross same.
There was no perceivable risk which the insured should have taken into account but did not. The insured was driving appropriately in the circumstances, travelling within the speed limit and in a manner expected of traffic travelling along a busy roadway in the conditions described by the witnesses.
It is apparent from the evidence, the insured observed the traffic in lanes 1 and 2 to be travelling at a slower speed however, lane 3 was unobstructed by traffic and, accordingly, permitted the insured to travel at her pre-accident speed.
It is noted the independent witness, travelling in the opposite direction, described the insured’s speed to be normal and that the traffic lights were green in both directions. Further, both the insured and claimant estimated the insured’s speed to be less than the posted speed limit of 60km/h.
It is evident from the insured’s evidence that notwithstanding that she was keeping a proper lookout, she did not anticipate a pedestrian to attempt to be crossing the roadway at the point in which the claimant did so. Notwithstanding this, she did observe the head of the claimant as he emerged from in front of the vehicle in lane 2 and immediately attempted to take evasive action to avoid the collision.
Accordingly, it is submitted that immediately the claimant could be observed, the insured took evasive action by braking however, the actions of the claimant were such that the accident was inevitable as there was no opportunity available to the insured to avoid the collision.
In this regard, it is the evidence of the insured that at no point did the claimant look in her direction before attempting to cross the roadway. This assertion is not refuted by the claimant who stated that he had not seen the approach of the insured vehicle and that he was looking directly across the roadway, in the direction of the pizza shop, and did not see the vehicle until he was struck.
It was not reasonably foreseeable that a pedestrian would attempt to cross a busy roadway, in an area estimated to be 30m from the nearest traffic controlled pedestrian crossing, across three lanes of traffic. Further, it was even less foreseeable that the pedestrian would emerge from slowly moving traffic and would step into the path of the insured vehicle without looking to ensure it was safe to do so.
It was submitted that it was not reasonably foreseeable that there was a danger to which the insured needed to respond or to do anything other than drive in the manner in which she described in her statement and which is confirmed by the independent witnesses.
The provisions of s5B of the Civil Liability Act 2002 set out the principles upon which to approach the question of whether there has been a breach of duty. Notably, the question is not to be considered prospectively, but rather, by reference to what a reasonable driver should have done by way of a response to a foreseeable risk of injury or danger to other road users.
A person is not negligent for failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in the circumstances.
Furthermore, whether reasonable care has been exercised is not determined by asking if a different conduct could have produced a different outcome to avoid a collision or accident – Derrick v Cheung [2001] HCA 48, 181 ALR 301.
The duty of the insured driver was to take reasonable steps to be in a position to know what is happening in the vicinity of her vehicle. She was not required to know, or predict every event so as to be able to react to same.
The duty of care owed by the insured did not require her to slow down to whatever speed would have avoided the accident. In Mobbs v Kain [2009] NSWCA 301,McColl JA carried out an extensive review of the authorities as to the duty of reasonable care to be owed by a driver of a motor vehicle, particularly in circumstances involving irrational or unpredictable conduct on the part of a pedestrian. At [103] His Honour said:
‘It is not reasonable, in my view, to require [the driver] to slow down to whatever speed would have avoided the accident. Leaving aside the high level of obstruction at which such a conclusion is expressed and its failure to address a particular risk, it is in my view, the product of impermissible hindsight reasoning.’
The factual circumstances of the accident are akin to those described by the High Court in Derrick v Cheung and the Court of Appeal in Knight v Maclean [2002] NSWCA 314.
To find the insured driver breached her duty of care to the claimant would impose a form of strict liability which is not the law. The law only requires a driver to comply with the requirements of the law of negligence. She is not required to drive in such a way as to anticipate everything that the plaintiff or other road users might do or to travel at a speed such that she could stop to avoid collision.
Having regard to the above, the insured driver was not negligent. However, pursuant to the blameless accident provisions, the insurer concedes that the Commission is required to apportion conduct by considering the extent to which the claimant’s behaviour departed from the standard of care expected.
In Davis v Swift, the court noted that with respect to apportion of conduct in no fault claims, it was necessary to look at the extent to which the appellant’s behaviour involved a significant departure from the standard of care expected. In that case, it was noted that in the range of possible departures from the standard of care, the appellant’s conduct was not an example of a worst possible case in that it was not inevitable that the respondent’s vehicle would run over her foot. The court took into consideration that the appellant did not consciously place herself in a position of danger or attempt to cross the road when her judgment was effected by alcohol or drugs.
Whilst in that case the court did not find 100% contributory negligence, it is inferred that in circumstances where the conduct was an example of the worst possible case, or where the claimant consciously placed herself in a position of danger, a finding of 100% would be available.
In the subject case, the insurer submitted it was inevitable that the claimant’s action would lead to a collision in that he stepped into the path of an oncoming vehicle in circumstances where there was insufficient time for the insured driver to react.
The insurer asserted the claimant was negligent as follows:
(a) Crossing the roadway when it was clearly unsafe to do so due to the presence of vehicles in lanes 1 and 2 obscuring the presence of the claimant on the roadway;
(b) Crossing the roadway other than at a marked or controlled pedestrian crossing particularly when a traffic controlled pedestrian crossing was within 30m of the point which the claimant crossed;
(c) Crossing the roadway between vehicles in lanes 1 and 2 which obscured the approach of the claimant and entering lane 3 without looking to ensure it was safe to proceed;
(d) Failing to keep a proper lookout.
The insurer submitted the evidence is incontrovertible that, had the claimant looked, he could have seen the approach of the insured vehicle which was travelling legally and within the speed limit in lane 3.
The insurer therefore submitted that a finding of contributory negligence of not less than 80% ought to be found in the circumstances.
The Claimant’s submission in reply
The statement taken by Constable Nicholl taken on 23 March 2021 should be disregarded given the absence of a certified interpreter. The claimant’s English is very poor, he having migrated to Australia from China in 2016 and his native tongue is Mandarin.
He denied saying that he admitted to causing the collisions by accidentally walking out in front of the vehicle.
In an further statement taken by investigator O’Neill on 18 February 2021 with a Mandarin interpreter present, it was recorded that I believe both myself and the driver contributed to the collision. I do not recall stating this and “To be clear., I do not believe I contributed to the collision and that the driver of the vehicle is wholly at faut (sic) for the accident”.
In his statement dated 21 September 2021, the claimant argues that “I was wearing a white shirt, black jeans and black shoes. ..I believe the driver should have easily spotted me as I was crossing the first two eastbound lanes. I believe the driver was wholly responsible for the accident due to a combination of reasons. The first reason that being a provisional driver, she is inexperienced and lacked the necessary skills to prevent the accident. This is evidenced by the fact…she did not apply the vehicle brakes before the collision…. Secondly the driver was travelling at least 40km/h at the time of collision. I do not understand why the vehicle would be travelling so fast given the close proximity to the red traffic light.
Handley JA said in Talbert-Butt v Holloway (1990) 12 MVR 70 at [44] “The evaluation and assessment of the culpability of the Plaintiff and the Defendant must take proper account of the fact that … the plaintiff’s conduct posed no danger to anyone but herself, while the defendant who was driving … was in charge of a machine that was capable of doing great damage to any human being who got in his way.”
In Rachel Beyer v Lillian Jean Gehue [2015] NSWDC 62 at [62], Hatzistergos DCJ referred to the decision of Warth v Lafsky [2014] NSWCA 94 in which McColl JA said at [56]:- “Notwithstanding the conclusion in Derrick v Cheung … it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines…” [applied in Nettleton v Rondeau [2014] NSWSC 903]
His Honour then [at 70] referred to Hoeben JA’s judgment from Nominal Defendant v Ross[2014] NSWCA 212 at [46]:
“While it may be said that the negligence on the part of therespondent and the driver of the minibus was of a similar kind, i.e. neither kept a proper lookout, other considerations are also relevant. A failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle, such as a minibus, might result in not only injury to himself, but serious injury or death to an innocent party. In that regard, moral culpability weighs more heavily against a driver than against a pedestrian, even though their actions may, to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the courts.”
DRS Decision - ACI v NRMA Insurance Ltd [2018] NSWDRS CA 061: Assessor Terence Stern found that the claimant who crossed near the street crossing without keeping a proper lookout contributed only 50% negligence.
It is submitted that a reasonable person in the Insured Driver’s position would not consider it safe to proceed and would not have proceeded at the same speed after being aware that a pedestrian was crossing between stationary vehicles in the two left lanes.
The Insured Driver has breached her duty of care to the Claimant, as the Claimant would have been visible to the driver and there is no evidence that the driver sought to take any evasive action, slow down or engage the horn on the vehicle to alert the Claimant to the impending danger. It is submitted that the driver was the person in control of the situation and ought to bear the major portion of liability for the accident which occurred.
Determination
I make the following findings of fact:
(a) A collision between a pedestrian and the insured occurred on 24 December 2020.
(b) The collision occurred near 111 Liverpool Road at Burwood.
(c) There are six lanes of traffic, three in each direction at that location.
(d) The traffic lights for cars travelling on Liverpool Road at Burwood at the time of the collision were green in both directions. This is supported by the insured and the witness 1 noted in the Police investigations.
(e) Whilst the claimant contends that he travelled when the lights were red, this is inconsistent with other evidence before me. I gave leave to the parties to obtain traffic light sequencing, however this was not relied upon.
(f) The insured driver was travelling in lane 3 of 3 in an easterly direction.
(g) The claimant was attempting to cross in between traffic and noted by 3 witnesses including the insured to be running.
(h) The speed limit along Liverpool Road was 60 km/h. The insured was not travelling at excess speed for the circumstances.
(i) The claimant did not cross at a designated pedestrian crossing.
(j) The claimant did not look to the right to ascertain what traffic was in lane 3 before travelling across the path of oncoming traffic in lane 3. This conduct amounted to a lack of care for his own safety.
(k) There were cars in lanes 1 and 2 and traffic banking up behind those lanes.The claimant was moving both in front and behind slow moving vehicles.
(l) Lane 3 was clear of any banked up traffic when the insured proceeded across Liverpool Road into the path of the insured in lane 3 without looking at the direction of oncoming traffic. He was looking straight ahead to the Kebab shop..
(m) The insured driver saw the claimant’s head coming from lane 2 when the vehicle was one third of a car’s length from point of impact.
(n) At the time of the accident the insured driver was travelling at approximately 50-60 km/h within the designated speed limited for the area.
(o) The insured applied her brakes but had no time to stop before the collision with the pedestrian.
72. I find that the claimant’s conduct of running in between traffic contrary to traffic lights is the major cause of the collision and such conduct was negligent on his part.
73. Whilst the claimant disputed the lights were green, I am satisfied by the evidence of the insured and of WIT1 that the traffic lights were green when he ran across the road in front of oncoming traffic without a proper lookout.
74. I am not persuaded by the claimant’s submission that: the insured’s conduct is the sole cause of the accident..
75. I find that the insured driver’s view of the claimant was a fleeting moment before impact and there was little that could be done in the circumstances to avoid impact. She applied her brakes but there was insufficient time to avoid the collision.
76. The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: McHugh J: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. 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].
77. A driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events.[2] Nor is a 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.[3] A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility. On the other hand, a motorist can hardly drive in such a way that he or she expects such accidents to occur every minute. Otherwise, no traffic would ever move. Unless there is some reason for a motorist to look to the right or the left, it is not surprising that he or she may be looking straight ahead when driving his or her motor vehicle.[4]
[2] Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 per Meagher JA at [36].
[3] Marien at [37].
[4] Dugan v Chan [2013] NSWCA 182 per Emmet JA at [17].
78. The claimant argues that the following matters should have alerted the insured driver to the prospect that pedestrians may be present on or near the road:
(a) Cars were stopped in lanes 1 and 2 of Liverpool Road.
79. While these factors are relevant to the reasonable care the insured driver was required to exercise, on the basis of the facts I have found I am comfortably satisfied that the insured driver did not breach the duty of care she owed the claimant. In my view, she was driving reasonably having regard to the prevailing circumstances. She attempted to brake but there was insufficient time.
80. I find that the insured driver was keeping a proper lookout. Her view was limited to sighting the claimant immediately before he moved into her path. She was faced with a green light. The pedestrian was not crossing the road safely at a pedestrian crossing but in between moving traffic. In my view, the insured driver was entitled to drive with her eyes ahead of her until she noticed something to her left and she took immediate evasive action to avoid the collision.
The speed limit on that stretch of road was 60 km/h. The insured driver was travelling at a speed of approximately 50 km/h along the roadway within the designated speed limit. I am satisfied that this was an appropriate speed in the circumstances. There was no factor that, in my assessment, should have caused her to reduce her speed below the speed at which she was travelling before she noticed the pedestrian.
82. The conduct of the Claimant which constituted negligence on his part were:-
(b) Crossing the roadway when it was clearly unsafe to do so due to the presence of vehicles in lanes 1 and 2 obscuring the presence of the claimant on the roadway;
(c) Crossing the roadway other than at a marked or controlled pedestrian crossing particularly when a traffic controlled pedestrian crossing was within 30m of the point which the claimant crossed;
(d) Crossing the roadway between vehicles in lanes 1 and 2 which obscured the approach of the claimant and entering lane 3 without looking to ensure it was safe to proceed;
(e) Failing to keep a proper lookout.
83. I am satisfied that the insured driver was taking reasonable care as she proceeded along Liverpool Road. I find that the accident was not caused wholly by the fault of the insured driver as submitted by the Claimant.
84. I find that the accident was caused mostly by the fault of the claimant and that the percentage of contributory negligence proposed by the insurer at 80% does not need alteration.
85. For the purposes of section 3.11 the motor accident was caused mostly by the fault of the claimant.
86. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the claimant.
Costs
87. The claimant seeks the maximum costs allowed by the regulations.
88. Success is not a prerequisite to the claimant recovering regulated costs from the insurer. The claimant is entitled to recover from the insurer reasonable and necessary costs, and other costs and expenses incurred by the claimant.[5] The claimant seeks payment of his legal costs. No claim is made for other costs and expenses.
[5] s 8.10(1) MAI Act.
89. The regulations fix the maximum costs recoverable by a claimant in a miscellaneous assessment matter.[6] I find that the claimant’s reasonable and necessary costs in relation to this matter are $1,826 incl GST. The claimant is entitled to recover these costs from the insurer.
[6] Schedule 1 clause 3(1) Motor Accident Injuries Regulation 2017.
Shana Radnan
Member (Motor Accidents Division)
Personal Injury Commission
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