Meng v Allianz Australia Insurance Limited
[2025] NSWPIC 219
•21 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Meng v Allianz Australia Insurance Limited [2025] NSWPIC 219 |
| CLAIMANT: | Xianghui Meng |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 21 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; whether claimant was wholly or mostly at fault; claimant pedestrian crossing a narrow suburban street on a crest and blind corner near her home; claimant took a step on the roadway and was hit by the wing mirror of a car driving at the speed limit on a narrow road; no expert evidence; assessment on the papers; Held – applying the approach in AAI Limited t/as GIO v Evic; claimant contributed to the accident and was partly at fault; the insured breached her duty of care to the claimant; the claimant’s contributory negligence was assessed at 80%; costs allowed at the regulated sum of $2,191.20 inclusive of GST; cases referred to; Allianz Australia Limited v Shuk regarding relative culpability; Axiak v Ingram, and Davis v Swift regarding assessment of contributory negligence; Manley v Alexander, Stocks v Baldwin, and Derrick v Cheung regarding contributory negligence of pedestrians. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 2. The amount of the claimant’s costs in the matter is assessed at $2,191.20 inclusive of GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Xianghui Meng was involved in a motor accident at about 3.20pm on Sunday 2 June 2024. At the time of the accident the claimant was 72 years of age. The claimant was a pedestrian hit by a car in a suburban street in Figtree, near Wollongong.
On or about 28 June 2024, Ms Meng made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz the third-party insurer of the car that was involved in the accident.
Allianz accepted the claim and has been paying Ms Meng her statutory benefits.
On 23 December 2024 the insurer wrote to the claimant denying liability to pay ongoing statutory benefits to the claimant because:
(a) she was wholly at fault because the insured driver was not at fault;
(b) contributory negligence does not apply, and
(c) the claimant’s injuries were threshold injuries.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act which was done on 10 March 2025. Allianz affirmed its decision that the claimant was “wholly at fault”. Because the insurer affirmed that decision and the claimant does not agree with it, on 10 March 2025 the claimant referred the issue of whether she is mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.[1]
[1] The application form completed by the claimant’s solicitor ticks only one dispute type, “Is injured person mostly at fault.”
The proceedings have been allocated to me, and I held a preliminary conference with the parties on 7 April 2024. I was advised by the insurer that it accepted the claimant’s injuries were not threshold injuries but maintained that the claimant was wholly at fault. A timetable was set for the assessment and finalisation of the current proceedings.
LEGISLATIVE FRAMEWORK
Ms Meng’s claim is a claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. As Ms Meng was not an “earner” at the time of the accident she has been receiving statutory benefits for treatment and care only under Division 3.4 of the MAI Act.
Under s 3.1 of the MAI Act statutory benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle, and even if the injured person’s fault caused the motor accident. However, pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
While there is no definition of “wholly at fault” in the MAI Act, a motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.[2]
[2] Section 3.11(1)(a) and s 3,28(1)(a).
The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Meng is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).
INSURER DECISION MAKING AND SUBMISSIONS
Insurer’s liability notices
In its 23 December 2024 notice the insurer relied on its factual investigations undertaken by Quantumcorp and the statement the claimant gave as well as the ambulance report and police records. The insurer said, “we place you wholly at fault for failing to cross the road safely”. The insurer “reserves our rights in respect of contributory negligence” should the claimant be found to not be wholly at fault.
In the internal review decision dated 10 February 2025, the insurer refers to the claim form, the ambulance report, the police report, the claimant’s statement and the statement of the insured. The insurer then says:
(a) it is necessary to consider evidence of negligence on the part of those involved and drivers have a duty to take reasonable care for the safety of road users including pedestrians [9];
(b) the claimant was crossing a road not “designated for pedestrians” and she owed herself a duty of care by keeping a proper lookout when crossing [11];
(c) the police report says she was walking in a zig-zag pattern, and a reasonable person would have been aware there may be vehicles and would have kept a proper lookout [13];
(d) the presence of the insured on the road would require a reasonable person to stop before crossing and observe the vehicle on the road [14];
(e) the claimant failed to keep a proper lookout for not observing the insured vehicle on the road [15];
(f) the claimant put herself in a position of danger by not exercising reasonable care [16];
(g) although asserting the claimant was wholly at fault, the claimant relies on a pedestrian case of Robertson v Liebmann[3] where the injured person in that case had their damages reduced by 20% on account of their contributory negligence [17];
(h) the main cause of the accident was the claimant stepping onto the roadway and into a moving vehicle. There was nothing the insured could do in the time available [19], and
(i) a reasonable person in the position of the claimant would not have stepped out into a moving vehicle [22].
[3] [2015] NSWDC 231.
Claimant’s submissions
The claimant submits at [9] that the area of the accident is a residential street with houses and driveways and the insurer is wrong to suggest she crossed in an area not designed for pedestrians. The claimant says a reasonable driver should have been aware of the possible presence of pedestrians.
The claimant submits at [10] that the insurer has relied on the police report which alleges the claimant was walking in a zig zag fashion but there are no witnesses who saw this.
The claimant says at [11] the insured was driving too close to the kerb and the photographs of the incident show she was extremely close to it.
The claimant says at [12] the insured said she did not see the claimant until after she collided with her and says she was wearing long trousers and a colourful top.
The claimant argues at [13] that she was struck very close to the kerb and that the cause of the accident was the insured driving too close and not seeing the claimant. The claimant relies on Manley v Alexander[4] and says that the insured is required to know what is happening or might happen and take reasonable steps in response and control the speed and direction of their vehicle [14] and [20]. The claimant also relies on the case of Marien v Gardiner; Marien v H J Heinz Company Australia Limited.[5] The plaintiff in that case was walking in a residential street with his back to traffic. The Court held while pedestrian activity was unlikely it was a possibility, and the driver should have considered that and driven accordingly (and had the vehicle’s lights on high beam).
[4] [2005] HCA 79. The High Court in that case reversed a finding of contributory negligence made by the court below and found no negligence on the part of the driver.
[5] [2013] NSWCA 396. While not mentioned by the claimant, the court in that case found the plaintiff had not seen or heard the defendant’s vehicle before impact and assessed contributory negligence was found on the part of the claimant in that case at 50%.
The claimant submits at [17] – [19] her street was filled with houses and driveways and cars would be parked along the road and the risk of pedestrians was high and the driver was not exercising reasonable care.
The claimant finally submits at [21] that the insured’s statement that she did not see the claimant until she fell toward the car suggests she should have been driving at a slower speed to be able to react.
Insurer’s submissions
The insurer submits at [11] that “there was no perceivable risk which the Allianz insured should have taken into account but did not” and that:
(a) she was driving appropriately (for the traffic and road conditions) and under the speed limit [12];
(b) because of the nature of the roadway, the insured did not have the opportunity to see the claimant before the collision and should not have anticipated the claimant would move suddenly into the roadway [13], and
(c) the claimant fell onto her vehicle impacting the left-hand side mirror and the accident was inevitable [14].
The insurer disputes the claimant’s argument that it was reasonably foreseeable that a pedestrian would be crossing the road in the area where the claimant did as it was unsafe to do so [16], and that:
(a) it was not reasonably foreseeable that a person would step into the path of an oncoming car without looking [17], and
(b) it was not reasonably foreseeable that there was a danger, and that the insured had to modify the way she was driving [18].
The test of negligence and contributory negligence in s 5B of the Civil Liability Act 2002 is not to look at what should have been done by the particular driver in the particular circumstances but what a reasonable person in the insured driver’s circumstances would have done bearing in mind what they knew or ought to have known [19]. The insurer cites Derrick v Cheung[6] and notes “the question is not whether different conduct could have produced a different outcome to avoid a collision” [21]. A person is not negligent for not taking precautions unless the risk was foreseeable [20] and the insured is not required to know or predict every event that might happen and react [22]. The insurer cites Mobbs v Kain[7] and the observations by the court concerning “irrational or unpredictable conduct on the part of a pedestrian” [23].
[6] [2001] HCA 48.
[7] [2009] NSWCA 301.
The insurer says the factual circumstances of the current case can be distinguished from the cases the claimant has relied on and cites Derrick v Cheung, Knight v Mclean[8] and Allianz Australia Limited v Shuk[9] as more reflective of the circumstances in Ms Meng’s case [24].
[8] [2002] NSWCA 314.
[9] [2023] NSWSC 788.
The insurer submits at [25]:
“… to find the Allianz 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 was 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 he could stop to avoid collision.”
The insurer says the claimant fell into the insured’s vehicle and that the point of impact was the side not the front of the vehicle and that the claimant’s behaviour involved a “significant departer from the standard of care expected” [26].
Finally, the insurer says there is no evidence the insured was driving too close to the kerb and that the cause of the accident was the claimant’s movement into the car and not the path taken by the insured [27].
REVIEW OF THE EVIDENCE
Ambulance and police
Ambulance attended the scene, and a description of the case was given[10] as follows:
“72 [year old] female [non-English speaking background] struck by car travelling -50km/hr and being knocked to ground - unknown [loss of consciousness] - isolated/minimal damage to [left] mirror. [On attendance patient] found prone lying on road - responds to voice however difficult to assess as … (mandarin). [On examination Glasgow Coma Scale] 15 (relying on family to translate) - Pt able to recall and recount all events of collision….”
[10] The ambulance report has not been provided although it is quoted in the insurer’s internal review decision which was provided by the claimant. Words in square brackets are the full words for a common abbreviation inserted to assist in understanding the report.
The police report created on the day of the accident:
(a) notes the accident occurred at about 3.20pm on a Sunday and that the claimant “was walking down the road in a zig-zag pattern heading southbound … when the insured’s Kia Rio vehicle “clipped the 72-year-old with the front nearside”;
(b) describe the road as “on a crest with nil visibility as you head southbound until you come over the crest”, and
(c) says there were “nil witness to incident however multiple people have stated that the Pedestrian constantly walks in a zig zag pattern down the road”.
The police spoke with the insured on the day at the scene[11] and note that the insured says she was driving the speed limit (50kmph) and that she did not know “she had collided with anything until she heard the noise of the claimant clipping the vehicle.” The insured was given a breath test which was negative.
[11] What has been provided is the event report.
The police had been unable to obtain a statement from the claimant and followed up on
30 June and 13 July 2024 (which refers to multiple attempts) and on 9 August 2024, the constable records he has now spoken with the claimant with the aid of the interpreter over a period of 40 minutes. It is stated that there was no recording made of the version of events given by the claimant. It is recorded that she changed her position on the road while speaking with the police, stating at first she had only one foot on the road then saying she had both feet on the road and she was walking.
The police referred to a witness who said they had seen the driver earlier up the road and they were not speeding or driving in a dangerous manner at that time.
The police decided to take no further action.
Claimant’s evidence
The claimant relies on a series of photographs taken on the day of the accident:
(a) the first is of the insured’s grey Kia motor vehicle parked on the side of the road with the passenger side wheels on the verge and the driver’s side wheels on the road. The kerb does not appear to be at right angles to the gutter but what appears to be either a curve or at a 135 degree angle;
(b) the second and fourth photograph show the passenger side mirror of the insured’s vehicle with some damage to the top and front of it;
(c) the third photograph shows what the claimant identifies as the top she was wearing which was cut from her. While it has been described as brightly coloured it is, in my view best described as muted bright colours with dark lines on it and predominantly orange and aqua colours, and
(d) the fifth photograph shows the passenger’s side of the car towards the front of the vehicle, over the wheel arch. There are what appears to be scratches of the panel and some minor deformation of the panel at the joint with the bumper bar.
After the preliminary conference, the claimant sent in two marked up copies of a google photograph of the street where the accident happened showing her home and where she says the accident occurred. While not precise, the photographs suggest the accident happened beyond the southern boundary wall of the claimant’s home adjacent to the second of the two large trees on the left-hand side of the road.
The claimant gave a statement with the aid of a Mandarin interpreter to the insurer’s investigator on 25 October 2024. It has been signed by the claimant.
The claimant describes her usual walk at [12]. She says she leaves her home and walks to the left because the road is flat and she has arthritis so cannot walk well uphill. She walked 100m up the road and then crossed the street to walk back on the other side.
She was walking alone [14].
She says she is very familiar with the area as the accident occurred near her house. The street is narrow and cars “travel very fast” and she is careful because of that [15].
It was fine, visibility was good, the road was good but there is no footpath [16] - [18].
She says she was on the opposite side of the road to her home and needed to cross the street:
“[19] I looked right and saw no vehicle, then I looked left, I saw a white coloured vehicle coming up [the street] towards me and travelling fast. After that vehicle past [sic] going up hill, I looked right again, there were no vehicle coming, so I started to cross the road.
[20] I was standing on this narrow strip of grass with one foot on the grass and one foot on the road. I made one step onto the road and I got hit by a vehicle. I believe the vehicle hit across my upper body. Just after the impact, I fell about two metres to my left.”
The claimant estimated the vehicle was travelling at about 60kmph “well over 50 kph” based on her past driving experience [22]. She says she did not hear the vehicle, and it was quiet, and she was hit by the left side of the vehicle.
She did not provide a sketch because “my hands shake too much to draw a sketch”.
She describes the force of the impact as a 7 – 8 out of 10 [24] and that her body was “thrown about two metres downhill” and that the noise of the collision was “very loud”.
The claimant appears to suggest she was knocked unconscious as she says, “the next thing I remember is waking up in an ambulance and the nurse was holding a phone with my daughter in law on the line telling me to wake up” and she was taken to hospital [27].
The claimant says after her hospital treatment and rehabilitation she went home and received a letter but could not read it and she received one phone call. She said the police came to the house to ask her about a pedestrian crossing [28].
The claimant says at [34] she thinks the driver was at fault because she was going too fast and was driving too close to the kerb. At [35] the claimant acknowledges the street is very narrow and when vehicles pass, they have to come closer to the kerb. She also suggests it is a blind spot, so vehicles have to go slowly.
The insured’s evidence
The insured gave a statement to the insurer’s investigator.[12]
[12] While the insured, name, contact details and identification details were included in the statement and the annexures to it, as she is not a party to these proceedings it is not necessary to include these details.
She says on the day of the accident she was driving her car which she had owned for five years [14]. She says she was alone in the car and driving from her home to the shops and was familiar with the area as she had lived there for two years [15] and [19].
The insured says the road is a “minor road” with a 50kmph speed limit and is quite narrow with no footpaths and narrow nature strips [20]. She says the nature strip was broken up by tree roots which protruded from the ground and may have contributed to the accident [22] and [23].
She says:
“l left my house around 4.30 pm on the 2nd June 2024 with the intention of going to the shops in Figtree. l drove along [the street] in a northerly direction about 40 to 45 kilometres per hour. l drove past the house [number 47] and was about five to ten meters past it when I noticed a female fall toward my car into the left side of my car. l had no time to take any evasive action as she hit the side of my vehicle. My left-hand mirror was folded inwards from the impact with the female (pedestrian).”
The insured said that she realised there had been a collision and pulled over to the side of the road, got out and saw the claimant lying on the road appearing unconscious [24].
The insured said the police came and then the ambulance and police took her statement and gave her a breath test. She says several neighbours told her that the claimant “was often seen walking on the road and was known to be very unsteady of her feet”.
The insured said “the point of impact was between the wheel arch and front passenger door” [27] and that the claimant came to rest about a metre from the kerb with her body parallel to the kerb and her head facing into the road [28].
The insured said she believed the claimant was at fault because she hit her mirror [44] and the footpath may have had something to do with it as the footpath was broken up by tree roots and the claimant may have tripped [46].
The insured drew a sketch which had the claimant down the road around the corner from number 47 past a tree and close to a lane or driveway near a green lamp post on the left.
The investigator took photographs:
(a) photograph 1 shows the curve of the road, two large trees on the left and right and the driveway of the claimant’s home. It is a fairly level road but visibility beyond the curve is limited;
(b) photograph 2 shows the curve with a blue circle indicating where the claimant apparently was at the time of the accident, and
(c) photograph 2 shows the lamp post and the lane or driveway.
The investigator’s report and run sheet states that the claimant’s statement was taken with the knowledge of the solicitor, and that the claimant was reviewing and finalising the statement. The run sheet also indicates the scene report and diagram and photographs were undertaken by the investigator without the claimant or insured being present. The run sheet also suggests the statement was never returned by the claimant or her solicitor and the statement in the report is not signed or dated. The claimant provided a signed copy on 21 May 2025.
CONSIDERATION OF THE ISSUES
Issues concerning the evidence
The claimant relies on records obtained from the police. What has been provided by the police is the event record only. There are no copies of the police officer’s notebook, or any statements that may be contained in it and there is no body worn camera footage and transcription of statements. While the report may not be the best evidence, it is the only currently available evidence from the police.
In my view the evidence from residents in the area and the conclusions of the police that the claimant usually walked in an unsteady manner was not reliable evidence about how she was walking on the day of the accident. There are no independent witnesses who saw the claimant zig-zagging before she came into collision with Allianz’s insured.
The parties sought an assessment on the papers and therefore the evidence from the claimant and the insured driver has not been tested. There is some evidence of exaggeration for example, the claimant has said that she lost consciousness as a result of the impact. This is supported by the insured. However, the ambulance reports record a normal Glasgow Coma Scale of 15 out of 15 suggesting there was no loss of consciousness or cognition at that time and the ambulance report also indicates the claimant had full recall of the accident and was talking (with family interpreting for her) before she was loaded into the ambulance. The claimant’s evidence is however accepted, and I am of the view she has done her best to recall the accident.
There is no expert evidence relied upon by either party. There are photographs. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking[13] as to how photographs are to be used in the absence of expert evidence. The photographs include what is likely to have been the view of the insured driver however there are no photographs showing what the claimant’s view would have been up the road toward where the insured was coming. This is not surprising because the diagram drawn by the investigator was not drawn with the assistance of the claimant and the precise location of where she was standing was not known.
[13] [2008] NSWCA 144.
Factual findings
Factual findings must be supported by logical probative evidence. Any inferences drawn must be reasonably open on the facts as has been stated by the High Court in Australian Broadcasting Tribunal v Bond.[14]
[14] (1990) HCA 33 at [367].
In my view the evidence supports the following findings of fact:
(a) the general location of this accident was a residential area with a 50kmph speed limit. I make this finding on the basis of the photographs and the evidence of the claimant and the insured driver;
(b) the accident occurred on road with a crest and a curve which had a slight decline towards where the claimant was standing. I make this finding based on the police report which was created on the day of the accident by the investigating officer. The claimant does not challenge the insured’s evidence that police arrived before the ambulance. The investigating officer would therefore have been aware of where the claimant was on the roadway the contour of the roadway. I also note that the claimant says in her statement that the curve is a “blind spot” which supports the police officer’s description of the accident scene;
(c) both the claimant and the insured were familiar with the road and that it was narrow with no footpaths. I make that finding based on the two statements from the claimant and the insured;
(d) the claimant has said she has arthritis and has difficulty walking up hills. I accept her evidence that she has some mobility issues, but I do not accept that she was “zig zagging” down the road as she walked on the day of the accident;
(e) the insured’s car was a petrol-powered car and not an electric vehicle – I make this finding on the basis of the information provided by the representatives of the parties at the preliminary conference and the claimant’s statement;
(f) the claimant did not hear the insured vehicle as it approached. The claimant has not suggested she had a hearing problem. I do not accept that a person of normal hearing would not be able to hear a petrol-powered car as it approached in a suburban Sunday setting;
(g) the claimant did not see the insured before the impact – I make this finding on the basis of the claimant’s statement. Ms Meng says that having looked right and left, she looked right again and saw no car coming and started to cross and was hit and remembers nothing after that;
(h) there was another car on the roadway shortly before the accident coming up the hill and in the opposite direction to the insured – I make this finding on the basis of the claimant’s evidence which I accept;
(i) the claimant was not walking with her back to the traffic in the moments before the impact. I accept the evidence she has given in her statement that she stopped, looked right, then left, waited for the car on the other side of the road to pass before looking right and commencing to cross;
(j) the insured was driving at about 50kmph – I make this finding on the basis of the police evidence recorded on the day of the accident and the insured’s evidence. I reject the claimant’s evidence that the insured was driving at 60kmph and speeding. If the claimant had not seen the car at all before, she started crossing, she could not have been able to estimate the speed of this unseen car;
(k) the insured did not see the claimant before the collision – I make this finding on the basis of the insured’s statement;
(l) the point of impact with the vehicle was the passenger side and the mirror of the insured’s motor vehicle. I make this finding on the basis of the insured’s evidence, the photographs and the history recorded by the ambulance personnel. It follows from this finding that the claimant had not stepped in front of the vehicle and been hit by the front (for example bumper bar) of the car;
(m) the claimant had one foot on the grass and one foot on the road before taking a step and moving the foot that had been on the grass onto the road and that it was at that time that the claimant was hit by the wing mirror. I make that finding on the basis of the claimant’s statement;
(n) the insured was at all times driving on the roadway – I reject the claimant’s submission that the photograph suggests that the insured was driving too close to the kerb. I make this finding on the basis that the only photograph that shows the insured vehicle in relation to the kerb is a photograph taken after the accident and the claimant’s evidence (which I accept) is that she did not stop on impact but drove further down the road and pulled over, and
(o) the insured was travelling on the left side of the road – I have accepted that there was another car that had driven up the hill and away from where the claimant was and that the insured was driving down towards where the claimant was. These two vehicles must have passed each other and as the claimant has agreed the road was narrow and she was rounding a left hand bend it would be likely that the insured was driving near the kerb.
The approach to a wholly or mostly at fault dispute
Section 3.28 of the MAI Act says in respect of treatment benefits as follows:
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a) … the motor accident was caused wholly or mostly by the fault of the person[15], …
(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%.”
[15] Section 3.28(1)(a) adds the words “and the person is over 16 years of age at the time of the motor accident” to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.
Justice Mitchelmore in AAI Limited t/as GIO v Evic[16] interpreted these sections and applied them in the circumstances of a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:
(a) the injured person does not need to prove anyone was at fault for the motor accident, in order to obtain benefits under Part 3 [55];
(b) the phrase “wholly or mostly” is a composite phrase not two separate concepts (wholly at fault and mostly at fault) and that they “inform each other and are intended to address the same mischief, namely, contributory negligence” [56];
(c) wholly or mostly at fault concerns the contributory negligence relevant to the accident (not the injury) and accommodates all sorts of accidents including single vehicle accidents [57];
(d) s 3.38 requires the enacted law of contributory negligence to be applied including s 5R(2)(a) of the Civil Liability Act where the test for contributory negligence is stated to be “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];
(e) where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user), s 3.11 and s 3.28 accommodates an assessment of the claimant’s contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[17] at [61];
(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply by following the approach in the blameless accident cases such as Axiak v Ingram[18] [68] and Davis v Swift[19] [69], and
(g) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
[16] [2024] NSWSC 629.
[17] [2023] NSWSC 788.
[18] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.
[19] [2014] NSWCA 458 where contributory negligence for another pedestrian in a no-fault (blameless) accident was assessed at 80%.
Many of the submissions of the parties focus on whether there is a breach of duty of care, fault or negligence on the part of the insured driver and the claimant. The matter has proceeded on the basis the claimant is either wholly at fault or not at fault at all. The submissions have not really engaged with Evic and the approach established by that decision.
On the basis of Evic, I am of the view I must determine the following:
(a) did the claimant contribute to the cause of the accident? That is determined by considering whether the claimant departed from the standard of care of the reasonable person based on what she knew or ought to have known as set by s 5R(2)(a) of the Civil Liability Act;
(b) what is the insured’s culpability? This is determined by considering whether she breached her duty of care to the claimant as a fellow road user. While the claimant does not have to prove breach of duty of care on the part of the insured driver to establish an entitlement to ongoing benefits, the Shuk case says I must make a finding about this for the purposes of establishing whether there is any culpability on the part of the driver so I can determine the degree of that culpability relative to the claimant’s culpability, and
(c) the claimant has contributed to the cause of this accident, then what is the degree of her contributory negligence? Because this is an accident involving two protagonists, the relative culpability of the insured driver and the claimant must be assessed and apportioned between them.
Did the claimant contribute to the cause of the accident?
While the claimant was crossing a familiar suburban street close to her home, it was not a street devoid of any traffic. It was a Sunday afternoon, and the claimant said in her statement there had been a car on the other side of the road shortly before her accident. A reasonable person in the position of the claimant knowing those things would have been careful before crossing the road.
The claimant also said in her statement that vehicles speed on her street, that there is a blind corner where she was and that there are no footpaths and the street is narrow. With that knowledge I am of the view that a reasonable person in the position of the claimant would have been even more careful crossing the road where she did, or would have chosen the safest available place to cross the road.
The claimant said she did not hear the vehicle before impact. The insured’s vehicle was there to be heard as it approached where the claimant was standing. In my view, a reasonable person in the position of the vehicle with apparently limited sight of any approaching vehicle, would have listened carefully for any approaching vehicle.
The claimant said she looked right then left and right again and on that third look, she saw no car. The insured did not materialise out of nowhere and came from the claimant’s right. The claimant was standing partly on the road. While there is no expert evidence about the geometry or geography of the curve or any evidence of the time the claimant would have had available to her to observe the approach of the insured, I am of the view that the insured’s vehicle would have been visible at some stage before it was in front of the claimant as she was standing about to cross the road and stepped into it.
A reasonable person in the position of the claimant, knowing that care must be taken (because she knew it was a blind corner) would not have stepped onto the road without making sure there was no car approaching.
In my view then I am satisfied that the claimant has departed from the standard of care expected of someone who knows this area, this street and this corner and her departure from the standard expected for her own safety is significant.
What is the insured’s culpability?
The insured was driving at the speed limit, she was driving on a narrow road and she had just passed another vehicle coming up the hill as she was coming down. She was at all times on the roadway. She was familiar with the road and knew (or ought to have known) that there could be pedestrians about, particularly on a weekend.
In my view there are two possible failures of her duty to take care for her fellow road user:
(a) travelling at 50kmph on a suburban street in an area where there are houses, no footpaths and a blind corner, and
(b) the insured’s evidence was that she did not see the claimant at all before the impact. The claimant was wearing a coloured top. If the insured was there to be seen by the claimant, at some stage before the impact then it follows that the claimant must at some stage, have been there to be seen by the insured.
In my view a reasonable person knowing the nature of the road and the area would have driven below the speed limit not at the speed limit.
In my view in the absence of expert evidence about insured’s line of sight it is not possible for me to make a finding of breach of duty of care for failing to keep a proper lookout. It is not known for example whether at some stage the claimant was behind one of the trees on the side of the road or between the two trees and not able to be seen by the approaching insured.
What is the degree of the claimant’s contributory negligence
Both the claimant and the insurer have referred me to several cases in the course of their submissions.
The claimant cited the often-quoted passage in Manley that “Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger” which may require attention being given to multiple stimuli. Another sentence often quoted is “the reasonable care that a driver must exercise … requires that the driver control the speed and direction of the vehicle in such a way that the driver may … take reasonable steps to react” to what is happening around the vehicle.
The insurer had referred to Derrick where the High Court noted and commented on this passage from Stocks v Baldwin:[20]
"Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far-fetched or fanciful' risk which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account."
[20] (1996) 24 MVR 416.
The High Court in Derrick remarked that Stocks was decided on its own facts and may not have laid down general rules to be applied in all cases. Manley involved a collision between a car and a pedestrian lying on the road, Derrick involved an infant who darted out into a busy high street in Sydney.
The facts and circumstances of Ms Meng’s case are different to the cases referred to and I must make a decision on the degree of her contributory negligence based of the facts and circumstances I have found.
In my view Ms Meng bears a significant portion of blame for the accident. She was crossing a road, she should have been able to hear the vehicle, and she should have been on the lookout for the vehicle. This is not a case where she has walked several steps into the middle of the road and been hit by the insured vehicle. This is a case where she has walked a single step into the side of a car and has been hit by the wing mirror and knocked down.
CONCLUSION
I am satisfied, on the information presently before me that the claimant’s fault contributed to the cause of her accident. I am satisfied that the insured breached her duty of care to the claimant.
I am of the view the claimant’s culpability is significant at 80% and the insured’s culpability is less at 20%.
As I have found the claimant’s contributory negligence is 80%, it follows therefore that the motor accident was caused wholly or mostly by the fault of the claimant.
The claimant seeks the maximum regulated costs for the single dispute referred for assessment under Schedule 2(3)(e). The insurer has not objected to costs or provided submissions to the contrary. I assess the claimant’s costs on the basis of 16 monetary units which is the sum of $1,992 plus Goods and Services Tax of $199.
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