Lin v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lin v AAI Limited t/as GIO [2022] NSWPIC 408
CLAIMANT:	Xiuying Lin
INSURER:	AAI Limited t/as GIO
MEMBER:	Brett Williams
DATE OF DECISION:	26 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - miscellaneous assessment matter; whether motor 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; accident occurred at night; mixed commercial, residential, industrial area; claimant wearing dark clothing; claimant ran across road and tripped prior to the collision; driver travelling at speed limit; application of Civil Liability Act 2002; Marien v Gardiner applied; Held — accident caused wholly by the fault of the claimant; claimant failed to exercise reasonable care for her own safety; accident not caused by the fault of the driver; had finding of fault on the part of the driver been made finding would have been made that the accident was caused mostly by the fault of the claimant.
DETERMINATIONS MADE:	Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 78 of the Personal Injury Commission Rules. The findings of the assessment of this dispute are as follows: 1. For the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 the motor accident was caused wholly by the fault of the claimant. 2. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

BACKGROUND

Xiuying Lin (the claimant) was involved in a motor vehicle accident on 13 July 2021. The accident occurred as the claimant was crossing Queens Road, Five Dock. Following the accident she made a claim for statutory benefits dated 23 July 2021. AAI Limited t/as GIO (the insurer) denied liability for the claim on 19 October 2021 on the basis that the accident was caused wholly by the fault of the claimant. The decision was affirmed by an internal reviewer on 30 November 2021.
The dispute between the parties is whether, for the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAI Act), the accident was caused wholly or mostly by the fault of the claimant. The dispute is a miscellaneous assessment matter: Sch 2 cl 3(n) of the MAI Act.

ON THE PAPERS

The parties agree that the proceedings can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the matters that arise in the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.

STATUTORY FRAMEWORK

The claimant seeks payment of statutory benefits in accordance with Part 3 of the MAI Act. She 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 her fault. In this regard, s 3.11 and s 3.28 are in the following terms:
“3.11   Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)  the motor accident was caused wholly or mostly by the fault of the person, or
(b)  ...
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
3.28   Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a)  the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)  ...
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3)…”
The MAI Act defines fault as follows:
“fault means negligence or any other tort”
Divisions 1–4 and 8 of Part 1A (Negligence) of the Civil Liability Act 2002 (CL Act) apply to motor accidents: s 3B(2)(a) CL Act. Section 5 of the CL Act defines negligence as follows:
“negligence means failure to exercise reasonable care and skill.”
Section 5B of the CL Act is in the following terms:
“5B   General principles
(1)    A person is not negligent in failing to take precautions against a risk of harm unless—
(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)  the risk was not insignificant, and
(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)  the probability that the harm would occur if care were not taken,
(b)  the likely seriousness of the harm,
(c)  the burden of taking precautions to avoid the risk of harm,
(d)  the social utility of the activity that creates the risk of harm.”
Section 5D of the CL Act contains general principles applicable with respect to causation. Section 5D(1)(a) states relevantly:
“ 5D   General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a)  that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)  that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) …
(3) …
(4) …”

EVIDENCE

The parties have lodged a joint agreed bundle of material relied on in the proceedings.[1] The material relied on includes CCTV footage of the accident[2] and electronically recorded police interviews with the insured driver on 13 and 14 July 2021.
[1] AD12
[2] A2

The claimant’s statement

The claimant has provided a statement dated 4 March 2022. She states as follows at [7]:
“My memory about the accident is hazy due to the severe injuries I suffered in the accident… However, I recall the accident occurred on my way home from work. Sometimes l got a lift home from my co-worker after work. I took public transport when no one was available to give me a lift home. I recall taking public transport home that day. l usually took a bus from Burwood Station, and got off the bus at a stop on Parramatta Road, near Regatta Road at Five Dock. I would walk along Regatta Road, and when I reached the corner of Regatta and Queens Roads, just outside the Smash Repair Shop I would stop to look for traffic to clear on both sides before I walked or jogged across Queens Road in a northerly direction to the other side where my home is located a few hundred meters down Regatta Road.
I took the same route whenever l used public transport to get home from work. I believe that was what l did prior to the accident.”

The insured driver’s evidence

The insured driver, Simon Nematalla, provided a statement executed on 17 May 2022. The statement records that he was driving home from work at the time of the accident. He is very familiar with the route. He was not using a GPS or navigator. He was travelling eastbound in the direction of Great North Road. There is a single eastbound and westbound lane, with a cycle lane and parked cars to the left. The road was straight and flat, and “quite dark”.
The driver states that the speed limit “would be 50km/h” and that he “wasn’t doing anything beyond 50km/h”.
The driver states that, in an attempt to avoid the accident, he veered into the westbound lane. He states that he “…only veered to the right after noticing the [claimant] perform a slight hesitation, but then continued in the same path”. He expressed the opinion that “the limited lighting was an issue”. His view was not obstructed. The traffic was free flowing. There were no cars immediately ahead of him. Prior to the accident he was looking directly towards the roadway ahead. As soon as he noticed the claimant attempting to run across the road he began to break. He had his foot completely on the brake pedal. He noticed the claimant “stop for a split second” and then continue running. He veered right, hoping he could “go behind her”. He was not sure how far he moved into the westbound lane. The accident occurred in the westbound lane. His vehicle came to a stop shortly after the impact with the claimant, about 20 m after the point of impact. The claimant was wearing dark clothing. The vehicle’s headlights were turned on. The damage to his vehicle was to the front left bumper, extending to the front left panel near the headlight area.
The parties rely on electronically recorded interviews of the insured driver by Police on 13 July 2021(x2) and 14 July 2021.
The first interview commences at 20:39:55 on 13 July 2021 and progresses for 18 minutes. The insured driver states that he tried to avoid the collision with the claimant, who had run out onto the road from his right. He “slammed the brakes” when he saw the claimant. He tried to avoid the claimant by steering his vehicle into the oncoming traffic lane. He pulled over immediately after the collision. He was travelling eastbound. He travels past the location of the accident “pretty much every night”.
When asked how fast he was going at the point when he first saw the claimant, the driver responded: “I wouldn’t have been exceeding the limit, which was 50.”
The driver states that he first saw the claimant “as soon as [he] went over the hill”. He said it was hard to see the claimant as she was wearing black. He reacted “as soon as [he] saw her”. He applied the brakes immediately when he saw the claimant. He said the “ABS kicked in”. When he first saw the claimant she was on the road. He thought that the claimant ran diagonally across the road. The point of impact was the furthermost corner of his vehicle. Towards the end of the interview the driver again states that the speed limit for “that portion of the roadway” is 50. He confirms that the roadway at the point of the collision was straight.
The second interview with the driver commences at 21:15:47 on 13 July 2021 and is suspended at 21:16:06. The circumstances of the accident are not discussed.
The third interview commences at 19:01:02 on 14 July 2021 and concludes at 19:11. The driver confirmed that at the time of the collision the vehicle headlights were on. The weather was fine. The road surface was dry. There were no road conditions that may have contributed to the accident. Traffic conditions were light. He could not recall whether there was a vehicle traveling in front of him.

The CCTV footage

The accident was captured by a camera located at a property situated on Regatta Rd, Five Dock NSW. I have reviewed the footage, which commences at 18:15:00 on
13 July 2021.
Vehicles can be seen travelling in both easterly and westerly directions on Queens Road. A vehicle is seen travelling on Regatta Street and stopping at the intersection with Queens Road. At 18:20:21 the vehicle stopped at the intersection of Regatta and Queens Roads commences to turn right into Queens Road. The claimant can then be seen at 18:20:24, almost immediately after the vehicle has completed its turn into Queens Road.
The claimant can be seen running across the lane for traffic traveling in a westerly direction. She appears to stumble and fall toward the road at 18:20:26, prior to the collision.
The insured vehicle is first seen at 18:20:25. The collision appears to occur at 18:20:26.
I will address the CCTV footage in greater detail later in these reasons.

Other evidence

In her application for personal injury benefits dated 23 July 2021 (claim form), the claimant stated “I was a pedestrian. A car hit me”. No further details of the accident are provided.
The NSW Police report dated 28 July 2021 contains details of the accident time, location, road and weather conditions and a summary of the accident circumstances. The accident summary records that the insured driver was travelling in an eastern direction at a speed of 50km/h and that he attempted to take evasive action to avoid hitting the claimant, including swerving onto the incorrect side of the road. It is recorded that the claimant collided with the front near side of the insured driver’s vehicle.
Under cover of a letter dated 1 December 2021, NSW Police provided material in response to an access application made under the Government Information (Public Access) Act 2009 (GIPA Act). The details of the accident recorded in the report dated 28 July 2021 are contained in the COPS event report dated 22 October 2021.
The police notebooks contained in the GIPA material do not include statements that address the circumstances of the accident. Photographs taken at the accident scene are contained in the material, including photographs of the claimant and her injuries.
Photographs of the accident scene, some taken on the evening of the accident, and others in daylight, are relied on. There are also aerial images depicting Queens Road and Regatta Road, maps and diagrams. I am mindful of the authorities that make it clear care must be taken when interpreting photographs.[3] Similar care must be exercised interpreting CCTV footage.
[3] See for instance Blacktown City Council v Hocking [2008] NSWCA 144 at [167] – [172].
There is a transcript of interview with Leading Senior Constable Holden dated
28 September 2021. LSC Holden attended the accident scene with Constable Knapp shortly after the accident occurred, the insured driver having reported the accident by telephone. LSC Holden stated that the point of impact was the nearside front bumper bar and front guard, right under the nearside headlight. The front bumper was broken. The claimant was wearing black, dark, clothing. There were no witnesses to the accident. The claimant had missed the bullbar and hit the plastic part of the bumper bar. He thought that the insured driver “…did everything he could to…miss her”. Alcohol and drug tests of the insured driver came back negative. The driver’s phone records were obtained and confirmed that there were no calls made by him at the time of the accident. The tires on the vehicle were considered to be roadworthy. There was nothing wrong with the car. At the time of the interview LSC Holden had not been able to speak to the claimant about the accident.
The medical evidence in the bundle confirms that as a result of the accident the claimant suffered significant orthopaedic and soft tissue injuries requiring operative treatment. She sustained multiple open fractures of both legs. A CT scan report included in the hospital notes records findings of an L2 burst fracture, transverse fractures at T12, L2 and right L1-L5, an undisplaced pubic rami fracture, open left comminuted tibial fracture, comminuted left fibular fracture and medial malleolar fractures.

AGREED FACTS

A statement of agreed facts dated 28 June 2022 records that the following facts are agreed by the parties:
(a)   the motor accident occurred at approximately 6:20pm on Tuesday,
13 July 2021;
(b)   the weather was fine and the road surface was dry;
(c)   it was dark and street lighting was illuminated;
(d)   the motor accident occurred on Queens Road, near the intersection with Regatta Road, Five Dock NSW;
(e)   at the time of the accident the claimant resided at Regatta Road, Five Dock NSW;
(f)    the claimant was crossing Queens Road heading in a northerly direction;
(g)   the insured was travelling in an easterly direction along Queens Road;
(h)   there is a single lane for traffic in each direction on Queens Road;
(i)    the claimant was wearing black trousers and a black and white striped shirt;
(j)    the speed limit along Queens Road is 60km/h;
(k)   there was traffic travelling in a westerly direction on Queens Road;
(l)    there was traffic turning right from Regatta Road to travel west on Queens Road;
(m)     the nearest marked pedestrian crossings are located approximately
240 m west and 220 m east of the point of impact;
(n)   the accident was captured by a camera located at a property on Regatta Road, Five Dock;
(o)   police and ambulance attended the accident scene, and
(p)   the claimant suffered injury.

The parties also agree that GIO issued a liability notice on 19 October 2021 determining that the claimant was wholly at fault for the motor accident and that this decision was affirmed following an internal review on 30 November 2021.

CLAIMANT’S SUBMISSIONS

The claimant has provided comprehensive submissions dated 29 June 2022. The thrust of the submissions is that:
(a)   the insured driver was driving too fast in the circumstances;
(b)   the insured driver failed to maintain a proper look out;
(c)   regard should be had to the claimant’s knowledge of the pedestrian crossings; she may not have known that crossings were available on Queens Road considering she came from Regatta Road, and that the nearest marked pedestrian crossings which are located approximately
240 m west, and 220 m east of the location of the accident were not visible in her line of vision;
(d)   there was nothing in the circumstances of the accident to suggest that the claimant was behaving recklessly or that she failed to exercise due care;
(e)   the severity of the claimant’s injuries tends to indicate that the insured driver was driving too fast, and by the time the claimant saw him it was too late, and
(f)    the claimant was not at fault for the accident in light of the available evidence.

INSURER’S SUBMISSIONS

The insurer relies on submissions dated 25 June 2022. The insurer submits that:
(a)   the evidence does not support a finding that the insured driver was not keeping a proper lookout;
(b)   the insured was travelling at 50km/h, below the 60km/h limit;
(c)   the insured was not travelling at an excessive speed having regard to the prevailing circumstances;
(d)   the claimant failed to have any, or any proper, regard for her own safety by running across a street in dark conditions while wearing dark clothing and without keeping a proper lookout for traffic;
(e)   the claimant failed without good reason to cross at an available crossing which would have been a safer place to cross the road having regard to the dark conditions and her dark clothing;
(f)    the insured’s driving accords with the standard to be expected of a reasonable person notwithstanding he was unable to avoid a collision with the claimant, and
(g)   the claimant’s contribution to the accident was significant: she was wholly at fault for the accident; in the alternative the claimant’s contribution to the accident is no less than 80%.
In short, the insurer submits that the accident was caused wholly or mostly by the fault of the claimant and that it is entitled to cease payments of statutory benefits in accordance with s 3.11 and s 3.28 of the MAI Act.

DETERMINATION

I am satisfied that the evidence supports findings that accord with the facts agreed between the parties. I make the following findings, that are consistent with the agreed facts:
(a)   the motor accident occurred at approximately 6:20pm on Tuesday, 13 July 2021;
(b)   the weather was fine and the road surface was dry;
(c)   it was dark and street lighting was illuminated;
(d)   the motor accident occurred on Queens Road, near the intersection with Regatta Road, Five Dock NSW;
(e)   at the time of the accident the claimant resided at Regatta Road, Five Dock NSW;
(f)    the claimant was crossing Queens Road heading in a northerly direction;
(g)   the insured was travelling in an easterly direction along Queens Road;
(h)   there is a single lane for traffic in each direction on Queens Road;
(i)    the claimant was wearing black trousers and a black and white striped shirt;
(j)    the speed limit at the location of the accident on Queens Road is 60km/h;
(k)   there was traffic travelling in a westerly direction on Queens Road;
(l)    there was traffic turning right from Regatta Road to travel west on Queens Road;
(m)     the nearest marked pedestrian crossings are located approximately
240 m west and 220 m east of the point of impact;
(n)   the accident was captured by a camera located at a property on Regatta Road, Five Dock NSW;
(o)   police and ambulance attended the accident scene, and
(p)   the claimant suffered injury.

I am satisfied that the CCTV footage time stamp is in real time. Neither party has submitted to the contrary. On the basis of the CCTV footage I find that:
a.    from 18:19:00 to 18:20:26 15 vehicles travelled along Queens Road, 10 heading in a westerly direction and five in an easterly direction;
b.    at 18:20:06 a vehicle travelling along Regatta Road comes to a stop on Regatta Road at the intersection with Queens Road;
c.     at 18:20:21 the vehicle stopped on Regatta Road at the intersection with Queens Road commences to turn right into Queens Road;
d.    at 18:20:24 the vehicle turning right onto Queens Road is fully within the lane heading in a westerly direction on Queens Road;
e.    the claimant commenced running across Queens Road at 18:20:24, almost immediately after the vehicle turning right into Queens Road from Regatta Road had completed its turn into Queens Road;
f.     the insured vehicle is first seen in the footage at 18:20:25;
g.    the claimant stumbles and falls toward Queens Road at 18:20:26, and
h.    the collision occurs at 18:20:26.
The CCTV footage does not depict pedestrians crossing Queens Road prior to the accident; nor does it depict pedestrians jaywalking or running across the road. With reference to the time stamp on the CCTV footage, from 18:19:00 until the collision at 18:20:26 only a single pedestrian can be seen in the footage. That pedestrian walks in a westerly direction on the opposite side of Queens Road from which the claimant attempted to cross. The pedestrian is seen to walk along Queens Road, cross Regatta Road, and proceed in a westerly direction on Queens Road. The pedestrian is not seen to cross Queens Road.
In his statement signed on 17 May 2022, the insured driver states at [42] that:
“[42]…The speed limit in this area would be 50km/h. I was driving in accordance with that speed limit, I wasn’t doing anything beyond 50km/h”
The insured driver told the police on the night of the accident that he “… wouldn’t have been exceeding the limit, which was 50”. I infer that the evidence of the insured driver about his speed is based on his assumption that the speed limit was 50km/h. The parties agree, and I have found, that the speed limit was 60km/h. I do not accept the insured driver’s evidence that he was travelling at 50km/h when he first saw the claimant. I find that it is more probable than not that, when the insured driver first saw the claimant, his vehicle was travelling at or about the speed limit, 60km/h.
I agree with the insurer’s submission that the calculations relied on by the claimant regarding the time and space available to the insured driver to see the claimant and avoid a collision should not be accepted. The calculations do not allow for the fact that the claimant was wearing dark clothing, as I have found. This would have made it more difficult for the insured driver to see her and is a factor relevant to his response time. Nor do the calculations take into account the fact that the claimant commenced to run across the road after a vehicle had turned right into Queens Road from Regatta Road. I consider it likely that this vehicle obscured the insured driver’s ability to see the claimant when she first ran onto Queen Street.
I have concluded that the claimant’s actions in running across Queens Road when she did represented a failure to exercise reasonable care for her own safety. The risk of harm from being struck by a vehicle while attempting to run across Queens Road when she did was foreseeable; it was a risk of which she knew or ought to have known. The risk was not insignificant. I find that a reasonable person in her position would have taken precautions against the risk of harm, such as waiting until there was no oncoming traffic in either lane before commencing to cross Queens Road. I find that there was a high probability that harm would occur if care was not taken crossing the road. The nature and extent of the injuries the claimant suffered as a result of the accident are illustrative of the seriousness of the harm if precautions were not taken. The burden of taking precautions to avoid the risk of harm was low.
Had the claimant exercised reasonable care for her own safety the accident would not have occurred. I find that running onto Queens Road when she did constituted negligence on the part of the claimant, within the meaning ascribed to that term in s 5 of the CL Act. I find that the accident was caused by her fault, for the purposes of both s 3.11 and s 3.28 of the MAI Act.
The question that then arises for determination is whether the accident was caused by the fault of the insured driver. If not, the accident was caused wholly by the fault of the claimant. If so, the question arises as to whether or not the accident was caused mostly by her fault.
The duty of the driver of a motor vehicle to other road users, including pedestrians, is to take reasonable care for their safety having regard to all of the circumstances with which the driver is confronted: see for example Marien v Gardiner [2013] NSWCA 396 (Marien) per Meagher JA at [33].
In Marien, Meagher JA summarised the position as follows:
“[34] … A person is not negligent in 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 those circumstances: s 5B(1).
[35]   Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".
[36]   The 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. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37]   Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.”
The claimant argues that the insured driver would likely have seen her some 75 m prior to the point of impact. I don’t accept this submission. There is no expert evidence that addresses the issue. The driver’s evidence is that he could not estimate how far he was from the claimant when he first saw her.
I have found that the insured driver was traveling at or about 60km/h when he first saw the claimant. The speed limit at the accident location was 60km/h. I have found that she was wearing black trousers and a black and white striped shirt. I am satisfied that while there were street lights in the vicinity of the accident scene, the position on Queens Road from which the claimant emerged when she ran onto the road was not well illuminated. I accept the insured driver’s evidence in this regard. The accident occurred at 6pm on a winter evening. The claimant was running. She stumbled towards the centre line of Queens Road so that her body was not visible at full length from the point at which she stumbled. The driver’s ability to see the claimant was reduced because of these factors.
I do not accept the submission that the driver ought to have been traveling at a speed lower than the posted speed limit. The traffic was free flowing. As submitted by the insurer, the accident occurred at 6.20pm. It is unlikely that there would be any pedestrian traffic coming from or going to a school at that time of day. There is no evidence of pedestrians jaywalking, running across the road, or engaging in other behaviour that ought to have put the driver on notice of the possibility that a pedestrian may run onto Queens Road into his path.
I accept the insured driver’s evidence that when he saw the claimant he took immediate steps to try and avoid the accident, including swerving into the oncoming lane and breaking. I find that the insured driver did not fail to keep a proper look out. I am satisfied that the insured driver exercised reasonable care.
The insured driver was not required to know or predict every event which happened in the vicinity of his vehicle so as to be able to take reasonable steps to react to such events. The driver was only required to take reasonable steps to be in a position to know what was happening or might happen in the vicinity of the vehicle. He was not required to be in a position where he could react to everything which may happen in the vicinity of the vehicle. The driver was 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 ventured into the vehicle's path.
I find that the accident was not caused by the fault of the insured driver.
Had I found that the accident was caused by the fault of the insured driver, I would have found that the accident was caused mostly by the fault of the claimant. In this regard s 5R of the CL Act applies. The claimant failed to take reasonable care for her own safety by running across Queens Road when she did, into the path of the insured vehicle. She should have taken greater care for her own safety. A reasonable person in the claimant’s position would not have crossed Queens Road when she did; a reasonable person would have waited until the road was clear of traffic before crossing. The most significant factor, in my assessment, in terms of the cause of the accident was the action of the claimant running across Queens Road when she did. I would have found that the claimant’s contributory negligence was greater than 61%.

COSTS

The claimant has not been successful in these proceedings. Success is not a pre-requisite to the claimant accruing an entitlement to the payment of her reasonable and necessary legal costs in connection with her claim.
In AAI Ltd v Moon [2020] NSWSC 714 (Moon) Wright J observed:
“82 As to the general nature of the entitlement conferred by s 8.10, it can be noted that it is not similar to the awarding of costs in court proceedings. There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS…”.
The claimant seeks an order from the Commission permitting payment of her costs in accordance with s 8.10(4)(b) of the MAI Act.
The insurer submits that no costs should be allowed or, if costs are to be assessed, that they should not exceed the regulated fee. However, the insurer also seeks an opportunity to make further submissions and rely on further evidence in relation to costs.
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], and San v Rumble (No 2) [2007] NSWCA 259 at [67].
My preliminary view is that, given the issues in dispute in these proceedings and the work undertaken by the parties, including the provision of detailed submissions, s 8.10(4)(b) of the MAI Act is satisfied, and that the Commission ought permit the payment of the claimant’s reasonable and necessary costs in connection with the proceedings in accordance with that provision. However, I will not form a concluded view about the claimant’s costs until I have considered the submissions and any evidence relied on by the parties in relation to costs.
If the parties are unable to reach agreement with respect to the payment of the claimants costs:
a. on or before 1 August 2022 the claimant is to lodge with the Commission and serve on the insurer an indexed and paginated bundle containing her submissions and evidence relied on in relation to her legal costs, and
b. on or before 8 August 2022 the insurer is to lodge with the Commission and serve on the claimant an indexed and paginated bundle containing its submissions and evidence relied on in relation to the claimant’s legal costs.

[2022] NSWPIC 408

26 July 2022