McGrath v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 492
•2 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | McGrath v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 492 |
| Claimant: | Kelvin McGrath |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 2 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (2017 Act); Schedule 2, clause (3)(g) of the 2017 Act; section 5R of the Civil Liability Act 2002; where the collision occurred in a roundabout; where the insurer determined contributory negligence of 50% on the part of the claimant; application for exceptional costs under section 8.10(4) of the 2017 Act; Held – no contributory negligence on the part of the claimant; exceptional costs to the claimant permitted under section 8.10(4) of the 2017 Act; claimant’s reasonable and necessary costs assessed at $5,878.40 inclusive of GST. |
| determinations made: | 1. For the purposes of s 3.38, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident. 2. Effective Date: This decision takes effect from 24 September 2020. 3. Legal Costs: The amount of the claimant’s costs assessed is $5,878.40 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor AccidentInjuries Act 2017
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, cl (3)(g) of the Motor Accident Injuries Act 2017 (the MAI Act). Is the insurer entitled to reduce the statutory benefits payable to the claimant in accordance with s 3.38 of the MAI Act for contributory negligence?
BACKGROUND
The claimant, Kelvin McGrath, is a 62-year-old man who suffered injuries in a motor accident on 24 March 2020, when the vehicle he was driving collided with the insured vehicle at a roundabout at the intersection of Marion Street and Manahan Street, Bankstown.
On 14 April 2020, the claimant made an application with the insurer for payment of statutory benefits. This was for both weekly payments for loss of income and payments for treatment and care. The insurer accepted liability to make these payments for the first 26 weeks.
On 28 August 2020, the insurer notified the claimant that after 26 weeks, the insurer will reduce his weekly payments by 50% on the basis of his contributory negligence in causing his injury in the accident.
On 13 November 2020, the claimant sought an internal review of the insurer’s decision.
On 2 December 2020, the insurer issued a determination affirming its original decision.
On 16 August 2021, the claimant commenced proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The proceedings are now before me for determination.
DETERMINATION ON THE PAPERS
I conducted several teleconferences with the parties over the course of the proceedings to discuss the material provided to the Commission and to explore the availability of further evidence. Ultimately, further documents were obtained from the NSW Police Force and both parties.
At the teleconference conducted on 29 April 2022, the parties agreed that I could proceed to determine the matter “on the papers”.
I am satisfied that there is sufficient information before me to determine the matter on the papers without holding a formal hearing.
In making my decision, I have considered all the documents provided by the parties and documents produced by the NSW Police Force to the Commission. These include:
(a) the claimant’s Application for Personal Injury Benefits dated 14 April 2020;
(b) the electronic medical record of the NSW Ambulance Service dated
30 April 2020;(c) the signed statement of witness, William El-Timani dated 7 May 2020;
(d) the signed statement of the insured driver dated 10 May 2020;
(e) the factual investigation report of MJM Corporate Risk Services (MJM) dated
14 May 2020 which included a transcript of an interview with Senior Constable Phillips of the NSW Police Force (SC Phillips) on 11 May 2020 and photographs of the damage to the insured vehicle after the accident;(f) the claimant’s signed, but undated statement;
(g) the NSW police report dated 28 May 2020;
(h) the insurer’s Liability Notice for Benefits after 26 weeks dated 28 August 2020;
(i) records of Event E72939620 of the NSW Police Force dated 8 September 2020, provided under a GIPA application;
(j) the claimant’s application for internal review dated 13 November 2020;
(k) the claimant’s signed further statement dated 13 November 2020;
(l) the insurer’s internal review decision dated 2 December 2020;
(m) the insurer’s submissions dated 8 September 2021;
(n) the claimant’s submissions dated 2 February 2022;
(o) the claimant’s diagram depicting the collision at the roundabout and two photographs of the site of the accident;
(p) the insurer’s supplementary submissions dated 18 April 2022;
(q) the claimant’s reply submissions dated 20 April 2022;
(r) the claimant’s submissions on costs dated 21 June 2022;
(s) the insurer’s reply submissions on costs dated 4 July 2022, and
(t) the documents produced by the NSW Police Force pursuant to a Direction for Production, which included police notebook statements from the claimant and the insured driver, and various coloured photographs of the two vehicles involved in the accident, taken at the scene of the accident.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· the Motor Accident Guidelines, Version 8.2 (the Guidelines);
· Civil Liability Act 2002 (the Civil Liability Act), and
· Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts of the scene of the accident are uncontroversial:
(a) the motor accident occurred at about 7pm on 24 March 2020 in the roundabout at the intersection of Marion Street and Manahan Street, Bankstown;
(b) Manahan Street provides a single lane for general traffic on approach to the roundabout in each direction;
(c) on approach from a northerly direction to the roundabout, (being the direction of travel of the insured driver), Marion Street provides for a bus/left-turn lane and a single lane for general traffic proceeding straight ahead;
(d) the speed limit was 60kph, and
(e) the weather was fine, and the road was dry.
The claimant’s evidence
Three days after the accident, on 27 March 2020, the claimant was interviewed by SC Phillips at Bankstown Police Station. The claimant’s description of the circumstances of the accident is recorded in SC Phillips’ notebook as follows:
“Driving along Manahan Street, heading up to the intersection with Marion Street. I was going to turn right at the roundabout, I approached it slowly. I looked right and saw a car coming down the hill, I looked left and didn’t see any cars coming from there. I thought, I’ve got enough time to get through the roundabout. I went into first gear and moved forward. Within a couple of seconds, I look [sic] to the right and I saw this car coming towards me. Before the accident, I saw the face of the other driver and he wasn’t looking at me but looking to his left [sic]. It happened very quickly.”
Other relevant extracts of the claimant’s evidence from SC Phillips’ notebook are as follows:
“Q: Did you stop at the roundabout before entering it?
A: No, I didn’t.
Q: What speed do you think you were going?
A: Only a couple of miles an hour. I’ve got a bit of weight in the back. About a tonne.
Q: When you first saw the other car, how far away do you think it was?
A: About 2 or 3 car lengths away from the roundabout.
Q: When you entered the roundabout how far away was the other car?
A: When I entered, I didn’t worry about him.
Q: When you entered the roundabout you didn’t check for him again?
A: No, I entered then saw him coming out of the corner of my eye and leaned over to avoid.
Q: How long until after you first saw the car did you enter the roundabout?
A: About 1 or 2 seconds. I know he was to my right, but I was definitely in the roundabout before he entered the roundabout.”
In his application for statutory benefits dated 14 April 2020, the claimant described the circumstances of the accident as follows:
“I entered the roundabout at Manahan entry point and hook loft [sic] right. Within seconds the second car hit my right hand door moving my car approx. 35 metres down the Rd. I could not get out of the cars [sic] way due to the speed he was going.”
The claimant provided a signed statement to the Commission which was undated. It appears that the statement was made in May 2020, following an interview with the insurer’s investigator, David Care of MJM. The claimant’s evidence about the circumstances of the accident is as follows:
“…
As I approached the intersection I put my right hand indicator on and I slowed down I looked to my left and then to my right. I had just moved across the line on the roundabout and I saw his vehicle on my right hand side for the first time it was at that time about 30 metres back from entering the roundabout.
I put my vehicle into first gear and I edged forward onto the roundabout I looked to my right hand side again and I saw the vehicle that hit me just about to enter the roundabout. I could see that he was flying, but that I mean that he was travelling extremely fast. I could see that I had to avoid having him hit me. I kept my eyes on him all the time and I could see his head and then it was about one hundred, two hundred count and then the front of his vehicle hit my driver’s door.
I think I was knocked out for a short time by the impact. The impact pushed me to the left and in front of driveway off the road in front of a house about 25-30 metres from the impact. My front airbags didn’t go off. I don’t know if his airbags went off.
…”
The claimant provided a supplementary statement to the Commission dated
13 November 2020. The relevant extracts are as follows:“I have read the statement I gave to David Care, investigator acting on behalf of NRMA Insurance in relation to my CTP claim. I have read the witness statements of Mostafa Hamaze and William EI-Timani and the NSW Police report ...
…
On the day of the accident, namely 24 March 2020 I was travelling home from work. It was about 7pm when I approached the round about at the intersection of Manahan Street and Marion Street in Condell Park. As you approach the round about from Manahan Street there is a hill going up to the roundabout which forces you to slow down but nevertheless I was slowing down as I was approaching the roundabout. I did not stop. I am very familiar with the roundabout and have been using that roadway for 25 years. It has always been a very busy roundabout with a lot of cars going in and out and I am very familiar with this.
My intentions entering the roundabout was to turn right into Marion Street. As I approached the roundabout I put my right hand indicator on. As I have done in all my years driving I looked to my right and left and continued to look to the right and left as I entered the roundabout. It was safe for me to approach and enter as there was no car in the roundabout on my right hand side and more importantly the car on my right hand side was roughly 20-30 meters away from the line approaching the roundabout.
The car that hit my vehicle hit me so quickly with such a hard impact that my car was pushed off the road and curb and into the front of a house on Marion Street. I know that the car was travelling fast as within a couple of seconds of seeing him at a distance he hit my car. The car that hit my car in approaching the roundabout was on a hill declining towards the roundabout. My vehicle weighed over 1 tonne on its own however I was also carrying a jet blaster which weighs 300kg and 100kg of water. The impact of the hit wrote off my car and the car that hit me.
…”
The insured driver’s evidence
On 27 March 2020, the insured driver was also interviewed by SC Phillips at Bankstown Police Station. The insured driver’s description of the circumstances of the accident is recorded in SC Phillips’ notebook as follows:
“I was driving [sic] Marion Street heading towards my mates [sic] house past the 7-11.
I was going the speed limit. as [sic] the roundabout you should know, you give way to your right and as my right was clear, it was my way to go. As I was going I checked out my right was clear. I saw the other [sic] coming out of my left, I had no time to brake and smashed into him. I was in the right lane going straight.”Other relevant extracts of the insured driver’s evidence from SC Phillips’ notebook are as follows:
“Q: How fast were you going as you entered the roundabout?
A: Speed limit, 60km.
Q: When did you first see the other car?
A: About 3 to 4 car lengths.
Q: Where was he in relation to the roundabout when you first saw him?
A: He just stopped in the middle of the roundabout when he saw me coming. He should have stopped before his street and let me pass him. I beeped the horn when he was about two car lengths away. During impact, I yelled out of fear. I was very shocked. I had so much adrenaline that I didn’t feel any pain at the time but now I have pain in my neck, high back, hips and my knee and now have to wear a neck brace.
Q: Where was the other car when you entered the roundabout?
A: Stopped in the middle of the roundabout.
Q: How long had he stopped in the roundabout before the collision?
A: Not sure.”
The insured driver provided a signed statement to the Commission dated 10 May 2020.
He described the circumstances of the accident as follows:“…
I was travelling at the speed limit at 60 kph, I approached the roundabout and slowed down I can't recall now exactly to what speed. As I approached the roundabout I saw the other vehicle that hit me stopped at Manahan Street on my left. He was stopped at the white roundabout line and as I entered the roundabout I suddenly saw him come across the roundabout white line. When he came out he stopped suddenly, the whole of his car would have been in the roundabout. I had right of way and did not think that he would come onto the roundabout but would give way to me.
I would have been about a car length away from him when he started to come onto the roundabout over the white line. I didn't have time to apply my brakes as he was too close when he came onto the roundabout from my left.
The impact was quite severe. The front of my car hit the front driver's side over the front guard where the wheel is. I will send you the photographs of the damage to both cars. My airbags deployed, I am not sure if his air bags did.
…”
NSW Police Force
23. The NSW Police Force attended the scene of the motor accident.
24. In the documents produced to the Commission, the NSW Police Force provided a series of photographs taken of the scene of the accident and the subject vehicles after the collision.
25. The documents produced by the NSW Police Force also reveal that an infringement notice was issued to the claimant for failing to give way to a vehicle when entering a roundabout.
Witness statement
26. A witness, William El-Timani provided a signed statement to the Commission dated
7 May 2020. He described the circumstances of the accident as follows:“…
I recall about a month ago, I can't recall the exact time, between 7pm and 9pm I was travelling along Manahan Street, Manahan [sic] heading towards the roundabout with Marion Street, behind a white Hi Lux Ute. It was dark at the time of the accident, the streetlights were on. I recall that the rear lights of the Hi Lux were on.
I can't recall now if the Hi Lux had on its right-hand indicator.
The Hi Lux slowed down almost to a stop as it approached the roundabout with Marion Street. It continued slowly to enter onto the roundabout and when it was about a bit more than half of the Hi Lux on the roundabout past the white marks the impact occurred. The white marks I mention[sic] indicate where the entrance to the roundabout was for the driver of the Hi Lux. Before the impact I looked down at my speedo and when I looked up I saw the silver Mazda hit the Hi Lux. It had come from my right which was also the right of the Hi Lux and the front of the Mazda hit the Hi Lux on the driver's side door.
I first saw the Mazda when it entered the roundabout after I looked up. From what I saw the Mazda was going through the roundabout at an appropriate speed but it wasn't a slow speed, it looked like a standard speed of a driver going through a roundabout. I saw the Mazda from when it first entered the roundabout until it hit the Hi Lux.
…”
THE INSURER’S SUBMISSIONS
27. The insurer’s submissions may be summarised as follows:
(a) the insurer accepts that the insured driver was partially at fault because:
(i)he entered the roundabout at a speed which was excessive in the circumstances, and
(ii)he appears to have focussed his attention on whether vehicles were approaching from his right without having proper regard for whether there was a vehicle ahead, which may impede his path.
(b) the insurer submits that the claimant’s account of the accident has become progressively more exculpatory with the passing of time. The insurer submits that the accounts given on the day of the accident to ambulance officers and shortly afterwards to SC Phillips are more likely to represent what occurred because they were given contemporaneously;
(c) based on what the claimant told the ambulance officer and SC Phillips, the insurer submits that the claimant either failed to look to his right before entering the roundabout or the claimant looked to his right and seriously misjudged the position and pace of the insured vehicle. On either of these bases, the insurer submits that the claimant failed to keep a proper lookout and this failure made a significant contribution to the cause of the accident;
(d) the insurer submits that the claimant failed to give way. A reasonable driver in the claimant’s position should have:
(i)looked to his right before entering the roundabout;
(ii)observed the insured vehicle entering the roundabout;
(iii)assessed the pace and the trajectory of the insured vehicle;
(iv)determined that there was neither time or space to safely enter the roundabout, and
(v)waited for the insured vehicle to pass before entering the roundabout.
(e) the insurer submits that the claimant made a significant contribution to the cause of the accident by failing to maintain a proper lookout and by failing to give way to the insured vehicle. In assessing the relative culpability of the drivers, the insurer submits that their contribution to the accident was equal and as such, contributory negligence should be assessed at 50%.
THE CLAIMANT’S SUBMISSIONS
28. The claimant’s submissions may be summarised as follows:
(a) the claimant submits that there was no contributory negligence on his part for the accident;
(b) as the claimant approached the intersection, he placed his right indicator on, slowed down and looked left and right. Almost immediately after his vehicle had entered the roundabout, he saw the insured vehicle on his right, roughly
30 m from entering the roundabout and travelling fast, along Marion Street;(c) in his statement to the police, the claimant said that he entered the roundabout before the insured vehicle;
(d) in his statement to the police, the insured driver confirmed that the claimant’s vehicle was in the roundabout before him, but said that the claimant’s vehicle had stopped;
(e) the claimant disputes that he had stopped, but says that he was travelling slowly as he had a heavy weight on the back of his Ute and as he was turning right around the roundabout into Marion Street, he was taking care;
(f) the claimant told SC Phillips that he was two or three car lengths away from the roundabout. In his statement in May 2020, he said he had first moved across the line of the roundabout when the insured vehicle was about 30 m from entering the roundabout. In his supplementary statement, he said he saw the insured vehicle a couple of seconds before the accident. While there is some discrepancy in the estimates of these distances, they all confirm that the insured vehicle was well back from the roundabout when the claimant’s vehicle entered it;
(g) the insurer’s submission suggests that the claimant’s story becomes “more exculpatory” from the versions of events recorded by the ambulance officers. This ignores the fact that the claimant suffered a “bleeding brain” in the accident. His GCS score at the scene of the collision was 14;
(h) in his statement to SC Phillips the insured driver said that he was driving at 60kph when he entered the roundabout. In his statement dated 10 May 2020, he said that he was driving less than 60kph. He says that he observed the claimant stopped in Manahan Street at the white roundabout line, whereas he told the police that the claimant’s vehicle was in the roundabout before him;
(i) the claimant submits the evidence is all one way, being that the claimant entered the roundabout first and was in the middle of the roundabout before the defendant entered the roundabout;
(j) based on Regulation 114 of the Road Rules, as the insured vehicle entered the roundabout after the claimant’s vehicle, the claimant had the right of way, and
(k) the claimant submits that entering a roundabout at the exact speed limit is dangerous and too fast.
THE RELEVANT LEGISLATION
29. Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
30. Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he was at fault in the motor accident.
31. On that basis, the claimant received payment of statutory benefits from the insurer for the first 26 weeks after the accident.
32. At the end of that period, in reliance on s 3.38(1) of the MAI Act, the insurer reduced the claimant’s weekly payments of statutory benefits by 50% for contributory negligence.
33. Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
34. Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
35. In s 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
36. Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
37. For the purpose of assessing breach of duty of care, s 5B(1) of the Civil Liability Act provides that 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);
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
38. Section 5B(2) provides that 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.
39. In assessing contributory negligence for the purpose of s 3.38(1) of the MAI Act, I have to consider s 5R of the Civil Liability Act.
40. Section 5R (1) provides that the principles applicable for determining negligence also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
41. Section 5R (2) goes on to provide that the standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time.
LEGAL PRINCIPLES – DRIVER’S DUTY OF CARE
42. The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
"[33] 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: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. 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."
LEGAL PRINCIPLES – CONTRIBUTORY NEGLIGENCE
43. McColl JA set out the proper approach to assessment of contributory negligence in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [13]-[14]:
“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act …
The words ‘reasonable person in the position of that person’ in s 5R are equivalent to the words ‘a reasonable person in the plaintiff’s position’: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects ‘the expectation that, in general, people will take as much care for themselves as they expect others to take for them’: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).”
44. Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 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.”
45. Whether there is any contributory negligence by the claimant requires a determination of whether a reasonable person in the claimant’s position, would have proceeded in the roundabout when he did, knowing what he did or what he ought to have known at the time.
46. In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
DISCUSSION
47. The insurer concedes that the insured driver owed a duty of care to the claimant, that he breached that duty, and that he was at fault in causing the accident.
48. The insurer accepts that the insured driver caused the accident because he entered the roundabout at excessive speed in the circumstances, and in approaching the roundabout, he did not have proper regard for whether there was a vehicle ahead which may impede his path.
49. The insurer however, submits that the claimant made a significant contribution to the cause of the accident by failing to maintain a proper lookout and by failing to give way to the insured vehicle.
50. Having considered the whole of the evidence, I do not accept this submission for the reasons that follow.
Approaching and entering the roundabout
51. In his statement to SC Phillips three days after the accident, the claimant said that as he approached the roundabout, he did it slowly. He looked to his right and he saw the insured vehicle coming down the hill, about two to three car lengths away from the entry to the roundabout. He looked to his left and there was no traffic. He thought that he had enough time to proceed through the roundabout. He moved his vehicle into first gear and entered the roundabout.
52. I accept this evidence. It is consistent with the claimant’s evidence in his statutory benefits form and his May 2020 statement.
53. In my view, the claimant did what a reasonably prudent driver would do in approaching and entering a roundabout. He slowed down, kept a proper look out and proceeded into the roundabout when he perceived that it was safe to do so.
54. The claimant’s evidence in that regard is in some respect, supported by the evidence of the witness, Mr El-imani who was driving behind the claimant’s vehicle on approach to the roundabout. Mr El-imani said that the claimant’s vehicle “…slowed down almost to a stop as it approached the roundabout with Marion Street”.
55. In his statement to SC Phillips, also three days after the accident, the insured driver said he approached the roundabout at the speed limit of 60 kph. He was about three to four car lengths away when he first saw the claimant’s vehicle. At that time, the claimant was “in the middle of the roundabout”. He entered the roundabout when the claimant’s vehicle was “stopped in the middle of the roundabout”. I accept this evidence. I do not accept the insured driver’s evidence in his later statement of 10 May 2020 in so far as it is inconsistent with this evidence.
The collision
56. The claimant said that when his vehicle was already in the roundabout, he again looked to his right. He saw the insured vehicle coming towards him. He saw the insured driver’s face and it was not looking towards him. Within seconds, the insured vehicle hit the right-hand door of his vehicle.
57. In his statement to SC Phillips, the insured driver said that when he saw the claimant’s vehicle coming out from his left, he had no time to brake and “smashed into him”. At the time, he “was in the right lane going straight”.
58. To put the insured driver’s evidence in perspective, “the right lane going straight” infers that he was travelling straight ahead in the general lane of traffic. On his left would be the bus lane/left-turn lane.
59. The diagram of the scene of the accident provided by the claimant shows the bus lane to be about 4.7 m and the general traffic lane or “right lane” to be about 3.2 m.
60. The claimant provided the Commission with a photograph of his view from Manahan Street prior to entry into the roundabout.[1] The photograph shows that there is a white broken line delineating the entry into the bus lane/left turn lane of the roundabout and another white line delineating the border between that lane with the general traffic lane or “right lane”.
[1] Attached to the claimant’s diagram.
61. The evidence is that the insured driver was travelling in the “right lane” when the collision occurred. The collision caused damage to the right -hand driver’s door of the claimant’s vehicle. It follows that the claimant’s vehicle would have driven through the 4.7 m bus lane/ left-hand turn lane and well into the “right lane” before the collision occurred.
62. The insured driver’s evidence was that he was about three to four car lengths away when he first saw the claimant’s vehicle “in the middle of the roundabout”. In the circumstances, I find that the collision would have been avoided if the insured driver had slowed down on approach to the roundabout when he was three to four car lengths away from the entry to the roundabout when he saw the claimant’s vehicle was in the general traffic lane of the roundabout.
63. I find on the balance of probabilities that:
(a) the insured driver approached the roundabout at a speed of 60kph which was excessive in the circumstances;
(b) the claimant failed to slow down and failed to keep a proper lookout for other traffic travelling ahead of him in the roundabout before entering the roundabout, and
(c) the insured driver entered the roundabout at speed and failed to give way to the claimant’s vehicle that was already well into the roundabout.
64. In the circumstances, I find that the insured driver was wholly at fault for the motor accident. It follows that in accordance with s 5R of the Civil Liability Act and for the purposes of s 3.38 of the MAI Act, there is no contributory negligence on the part of the claimant in the motor accident.
COSTS
The claimant’s costs submissions
65. The claimant submits that he should be entitled to the costs above the regulated fee prescribed by the Regulation and makes an application for payment of his legal costs by the insurer pursuant to s 8.10(4) of the MAI Act on the basis that there are exceptional circumstances.
66. The claimant says that there are exceptional circumstances in this matter to justify the payment of costs on that basis. They include the following:
(a) the liability dispute involves two varying accounts from the claimant and the insured driver, accounting for a number of statements from each party;
(b) the insurer relied on an alleged witness to the accident not previously identified to police at the scene of the accident;
(c) the insurer’s reasons for alleging contributory negligence on the part of the claimant significantly altered when the claim was initially denied and when argued before the Commission;
(d) there was a police investigation into the varying accounts of the circumstances of the accident, a request for GIPA information and a Direction for Production to the NSW Police Force;
(e) the claimant’s solicitors have had to review the above material and a property damage file;
(f) the matter required a number of conferences with the claimant;
(g) the matter was subject to three teleconferences, and work relating to the Direction for Production to the NSW Police and GIPA;
(h) counsel had to be briefed, and
(i) this was a complex and factual legal matter which required the instruction of legal representation to achieve the objective for the claimant.
The insurer’s costs submissions
67. The insurer agrees with the claimant that the claimant should be entitled to recover regulated costs.
68. However, the insurer disagrees that the dispute is afflicted by exceptional circumstances for the following reasons:
(j) a dispute involving which party entered a roundabout first might be considered a “garden variety” example of a contributory negligence dispute. It is the kind of dispute the legislature had in mind when setting the regulated fee;
(k) that the claimant had to attend several teleconferences and prepare two sets of submissions does not make this claim exceptional. That is the common experience, and
(l) what does make this claim unusual is that the claimant agreed to an assessment on the papers, which reduces the amount of time the claimant’s legal representatives were required to spend on this dispute.
Determination on costs
69. According to s 8.10(1) of the MAI Act, a claimant for statutory benefits is entitled to recover from the insurer the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim.
70. According to s 8.10(3) of the MAI Act, the claimant in this matter is only entitled to his reasonable and necessary legal costs if the payment of those costs is permitted by the Regulation or the Commission.
71. This is a miscellaneous claims assessment matter, and pursuant to cl 3(2)(g) of Part 1, Schedule 1 of the Regulation, it is a regulated matter.
72. For a regulated matter of this type, the Regulation permits maximum legal costs of 16 monetary units. That currently equates to $1,710 plus GST.
73. As a Member of the Commission and in accordance with ss 8.10(4)(b), I have a discretion to permit legal costs incurred by the claimant beyond the maximum regulated costs if I am satisfied that exceptional circumstances exist that justify such payment. As a Member of the Commission, I also have power to assess whether those costs are reasonable and necessary.
74. In his submissions, the claimant has outlined the circumstances that would permit me to exercise that discretion, and in its submissions, the insurer has outlined the reasons why I should not.
75. I accept the insurer’s submission that ordinarily, a dispute involving which party entered a roundabout first might be considered a “garden variety” example of contributory negligence dispute.
76. In the matter however, as would now be apparent from my decision, the issue of who entered the roundabout first would have been quite evident from the respective statements made by the claimant and the insured driver three days after the accident on 27 March 2020. Indeed, my decision is substantially based on that evidence. As I understand, that evidence would have been available to the insurer as early as May 2020, following the receipt of its factual investigation report or at the latest, in the GIPA material produced by the NSW Police Force in September 2020.
77. Contrary to the insurer’s earlier submission regarding liability, the claimant’s evidence was consistent in all of his statements except for some minor discrepancies regarding the perception of distances. What took the dispute out of the ordinary run of cases of this type is the exculpatory evidence that was ultimately advanced by the insured driver.
78. As a result, the claimant was put to the task of responding to that evidence by providing further statements himself and gathering further material from the NSW Police Force and other sources.
79. As a result, multiple teleconferences before the Commission were necessary and further submissions required from the parties in order for the matter to proceed on the papers.
80. The extent of material that needed to be gathered and addressed can be gauged from the list of documents outlined in my reasons.
81. In a recent decision of the Supreme Court of New South Wales, AAI Ltd t/as GIO v Moon [2020] NSWSC 714 concerning the issue of legal costs in a miscellaneous matter dispute, Wright J made the following observations about permitting legal costs under ss 8.10(4)(b) at [99]:
“…cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4). It would be consistent with the objects and other provisions of the MAI Act, including for example s 7.46, and the express terms of s 8.10(3) and (4), to permit the amount of legal costs recoverable under s 8.10 in such exceptional cases to exceed the maximum fixed by regulation, where that was reasonably required to prevent injustice, hardship or some other relevant adverse consequence.”
82. The circumstances that I have outlined above, in my view, satisfies this test.
83. Half of the claimant’s weekly payments of statutory benefits was at stake in this dispute. The claimant was justified in seeking and relying upon legal representation at the level and to the extent that he did.
84. For these reasons, I am satisfied that exceptional circumstances exist that justify payment of legal costs incurred by the claimant. I exercise my discretion under ss 8.10(4)(b) of the MAI Act and permit the claimant his legal costs beyond the Regulation.
85. The claimant submits that the solicitor’s time spent on the matter amounted to approximately 45 hours. The claimant submits that an allowance of 60 monetary units would be appropriate for professional fees, including counsel’s fees, plus GST.
86. I assess the claimant’s reasonable and necessary costs as follows:
· an allowance of 25 monetary units for professional fees - $2,672 plus GST;
· an allowance of 25 monetary units for Counsel fees for advice work, submissions and appearances at teleconferences - $2,672 plus GST, and
· total costs allowed: $5,344 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
87. For the purposes of s 3.38, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident.
88. Legal Costs: The amount of the claimant’s costs assessed is $ 5,878.40 inclusive of GST.
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