Miric v Allianz Australia Insurance Limited
[2022] NSWPIC 753
•8 December 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Miric v Allianz Australia Insurance Limited [2022] NSWPIC 753 |
| CLAIMANT: | Tamara Miric |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bridie Nolan |
| DATE OF DECISION: | 8 December 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; section 3.38; miscellaneous claims assessment; claimant injured when jogging through bowsers at petrol service station; insured driver entering service station from road; whether insurer is entitled to reduce statutory benefits payable in respect of the motor accident; contributory negligence; Held - contributory negligence of claimant held to be 10% for her inattentiveness; insured driver driving excessively fast for circumstances to bear most culpability for accident. |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and cl 7.497 of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.38 the insurer is entitled to reduce the weekly benefits payable in respect of the motor accident by 10%. 2. Effective Date: This determination takes effect on 27 November 2020. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to an application for a miscellaneous claims dispute assessment pursuant to an internal review decision made in accordance with Schedule 2, cl 3(g) of the Motor Accidents Injuries Act 2017 (NSW) (the Act). The relevant question on the application is whether the insurer is entitled to reduce statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act, and if so, by how much.
1.The claimant lodged an application for statutory benefits due to injuries arising from a motor accident which occurred on 27 November 2020.
2.In a decision dated 19 March 2021, the insurer determined that the claimant was 30% contributorily negligent for the accident.
3.By Certificate of Determination upon an Internal Review dated 14 April 2021 the insurer affirmed its original decision that the claimant was 30% contributorily negligent.
4.In the application before me, the claimant relies on a statement of 22 June 2021 to which I have had regard, in which she says relevantly:
(a) her husband and she frequent the petrol station at which the incident occurred on a regular basis. She says that she attends this petrol station every morning for coffee. She has lived in the Lane Cove area since 1998 and has lived no more than a five-minute walk to and from this particular service station since 2006;
(b) her husband and she turned right into the service station as she drove in a westerly direction down Burns Bay Road towards Centennial Avenue intersection where the service station is located. They drove out of Burns Bay entry point at around 3.25pm on their way to Balmoral Beach to enjoy the sunshine and some fish and chips;
(c) there is only one fuel pump for diesel vehicles at which the claimant and her husband can fill their Volkswagen Polo. They proceeded to park their car on the left side of this pump which is parallel to the Centennial Avenue entry;
(d) her husband got out of the vehicle to fill the car with petrol, and she waited in the car until she saw the petrol tank was almost full;
(e) she got out of the car on the passenger side and walked around the front of the bonnet of the car to speak to her husband. They spoke for less than a minute and she asked him for his bank card so she could go and pay while he finished filling up;
(f) as she walked parallel to the pump, she noticed a small truck enter from Centennial Avenue entry point, so she waited to see which pump the truck would be driving to. At that moment she stopped;
(g) when she saw the truck coming towards her, she diverted between two petrol pumps and started walking in the direction of the shop front;
(h) there is only about two to three metres between the pump, at which she and her husband filled up, from the storefront of the service station;
(i) the pumps are on an angle, and she could see the small truck. There were no vehicles behind the truck;
(j) at this point it would have been about 3:30pm. She stepped out slowly in between the two pumps and checked both ways for cars. She did not see a vehicle from either direction, so she stepped out;
(k) she said that she did not run, but she did not walk; it was more of a quick step which is a natural thing for her to do when crossing in a shared pedestrian and vehicle zone;
(l) she says that she was not looking at her phone and both her phone and credit card were in her right hand, and
(m) before she could make it to the pathway of the storefront, suddenly out of nowhere she felt an immense impact on the left side of her body and heard a really loud bang and slap. This was the insured vehicle colliding with her.
5.The claimant's husband, Vuk Dramicanin, also made a statement. He did not see the accident occur.
6.Included in the claimant’s statement are photographs of the relevant entry to the 7- Eleven service station. I have extracted two photos, which I consider of assistance to the disposition of this dispute. Figure 1 depicts the entry to the service station from Centennial Avenue. I have placed a red circle around the relevant bowser from which
the claimant moved. Figure 2 depicts the driveway. The red cross on Figure 2 depicts the position at which I am satisfied the claimant would have become visible to the insured driver as he entered the driveway from Centennial Avenue.
[IMAGE UNABLE
TO RENDER][IMAGE UNABLE
TO RENDER]Figure 1: View from entry to service station. Red circle depicts the bowser at which the truck stopped and from which the claimant emerged.
Figure 2: View of the service station upon entry. Red cross depicts the point at which I am satisfied the insured driver would have seen the claimant emerge from the bowsers.
DOCUMENTS CONSIDERED
7.I have considered the documents provided in the application and the reply and any further information provided by the parties.
SUBMISSIONS
Claimant’s submissions
8.There is CCTV footage of the incident taken from the service station. I have had regard to this CCTV footage and watched it numerous times, including flipping the footage to view it in the mirror image. I include at Figure 5 below two images screen shot form the mirror image footage, which adds a different perspective.
9.The claimant submits that the CCTV footage shows the claimant was moving faster than normal walking pace. She submits that moving at this speed is hardly telling of contributory negligence. She submits that even if she had seen the car, she would have expected the car not to approach her but to slow down, and if it be necessary, to stop to allow her to pass. The fact that the car did not do that and did not keep a
proper lookout meant that he was driving too quickly. The amount suggested for contributory negligence by the insurer, she submits, takes little account of these factors. It suggests, she submits, that she was significantly negligent. She submits that this is just not the case.
10.In the claimant’s submission, she is not guilty of contributory negligence. None of her actions amount to what could be said to be negligence on her part. She was at an area where people would constantly be passing and had the expectation that vehicles would have stopped to avoid her.
11.She submits that even if I were to find that her actions could amount to contributory negligence, it is open for me to find that any contributory negligence is assessed at 0% in the circumstances.
Insurer’s submissions
12.The insurer submits that I should find that the claimant’s statutory benefits be reduced by 30% for contributory negligence.
13.Having regard to the CCTV footage, the insurer submits it is open to me to assess what is just and equitable in relation to the reduction of statutory benefits for contributory negligence, and should that figure be higher than 30%, the insurer would accept a higher figure.
14.It submits that the claimant was contributory negligent on the following grounds:
(a) she failed to keep a proper lookout for vehicles entering, exiting, or on the roadway, between the shopfront and the bowsers at the accident site;
(b) jogging into the path and/or side of an incoming vehicle;
(c) jogging into the path of a moving vehicle when the driver’s line of sight was obstructed by petrol bowsers;
(d) failure to heed the obvious risk of jogging in a shared zone with her head down, and
(e) failure to warn the driver of the danger of proceeding.
15.The insurer made extensive submissions on the facts and what it submitted the various CCTV footage depicted. I have had regard to those submissions, but I do not set them out here due to their length.
REASONS
16.Section 3.38 (1) of the Act at the relevant time, relevantly provided:
“(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.” (my emphasis)
17.Section 3.38(1) of the Act introduces the operation and effect of the common law on contributory negligence, and enacted law, being both s 5R of the Civil Liability Act 2002 (NSW) (CLA) and s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), to the determination of loss of earnings. It is not directed to the determination of statutory benefits for treatment or expense. See also s 3.38(3)(c) of the Act, which pertains to the reduction of “weekly payments”. Therefore, the ambit of this decision can only affect payment of weekly benefits.
18.At common law and under the CLA, contributory negligence is a defence. Under the Act, in this statutory context, it is, by virtue of the operation of s 3.38 of the Act, a proviso or qualification on ongoing payment of statutory benefits, to be objectively determined. In Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, the High Court provided that where a statute provides “an … exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter …”.
19.As it is the insurer who wishes to rely upon the existence of the condition of exclusion under s 3.38 of the Act, this authority renders it incumbent upon it to discharge the legal burden of persuading or proving that proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257. Cross on Evidence describes the legal burden as “the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) by a preponderance of the evidence”: JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [7010].
20.At common law, the claimant is guilty of contributory negligence when she exposes 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 she was exposed: Joslyn v Berryman [2003] HCA 34; 214 CLR 552 at [16]. A further essential element of establishing contributory negligence at common law is that the claimant’s lack of care for her own safety actually contributed to the occurrence of the injury or the nature and extent of it: Nicholson v Nicholson (1994) 35 NSWLR 308 at 333; Astley v Austrust Ltd [1999] HCA
6; (1991) 197 CLR 1 at [21]; Ackland v Commonwealth of Australia [2007] NSWCA 250 at [138], referring to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 165.
21.In determining whether the claimant was contributorily negligent, I must first consider whether the claimant failed to take reasonable care for her safety and, then if I am so satisfied, I am required to compare the relative blameworthiness or culpability of each of the claimant and the insured driver, and the causative potency of each’s negligence, according to what is just and equitable in the circumstances: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 at [10] (Podrebersek);
Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65 at 68; [1997] HCA; James
Hardie & Coy Pty Limited v Roberts (1999) 47 NSWLR 425 at 429; [1999] NSWCA
314.
22.The standard of care required of the claimant in this instance is that of a reasonable person in her position to be determined based on what she knew or ought to have known at the time — a purely objective “reasonable person” test.
23.During the hearing the parties and I viewed the CCTV footage several times. I have had regard to it again in formulating these reasons. Having been taken from several angles, I am satisfied viewed as a whole, it clearly depicts the incident, such that I am satisfied that it is a reliable basis upon which to find the facts relevant to this dispute.
24.The CCTV footage depicts the claimant emerging from the bowser at which her car is parked and giving way to a truck as it enters the service station and pulls up at the adjacent bowser. It is apparent that the truck obstructed her view of the insured vehicle as it turned into the driveway. In her evidence the claimant said she looked for an oncoming vehicle, before she proceeded to service station shop, she would not have seen the insured driver enter the driveway by virtue of her attention first being diverted to this truck and secondly, because the truck obstructed her view, as Figure 3 below depicts.
[IMAGE UNABLE TO RENDER]
Figure 3: Claimant emerging from the bowser.
25.I infer from watching the CCTV footage that once the claimant was satisfied that the truck had come to a safe stop, she proceeded towards the entrance to the service station shop. Upon doing so, she appears to drop her head and break into a light jog as Figure 4(a) and (b) below, depict.
[IMAGE UNABLE TO RENDER]
Figure 4(a) and (b): the claimant drops her head and breaks into a light jog approaching the service station entrance.
[IMAGE UNABLE TO RENDER]
26.She does not look up until the instant before she collides with the insured vehicle as Figure 5(a) – (c), below, depict.
| [IMAGE UNABLE TO RENDER] Figure 5: The claimant does not look up until the instant before the collision | [IMAGE UNABLE TO RENDER] | [IMAGE UNABLE TO RENDER] |
27.Having watched the CCTV footage several times, I am satisfied that the speed at which the truck entered and proceeded to the bowser was an appropriate speed for a shared space such as a service station. I am also satisfied that, by comparison, the speed at which the insured driver was travelling was, at the very least, twice that speed. Accordingly, I am satisfied that the insured driver was proceeding into the shared space of a service station at a wholly inappropriate speed. This conduct constituted a relevant departure from the standard of care expected of a reasonable and prudent driver.
28.As Figures 2 and 5 above depict, the claimant was not at the point where she would have been visible to the insured driver upon his entry into the driveway until the moment immediately before the collision. I am satisfied therefore that neither the claimant nor the insured driver had seen one another until immediately before the collision. The reason for this is twofold:
(a) first, the excessive speed at which the insured driver was travelling, upon entering a shared space, prevented him from observing pedestrians emerging from the shared space, and
(b) second, the fact that the claimant with her head down was not keeping a proper lookout while she was jogging, not walking, across the same shared space.
29.A prudent pedestrian, taking reasonable care for her safety in a shared space such as a service station, where cars are regularly entering and departing, combined with the fact that there are numerous obstacles capable of obstructing the vision of both drivers and pedestrians, would proceed slowly and cautiously across the shared space, keeping a proper lookout. The claimant’s failure to conduct herself as a prudent and reasonable pedestrian means that the claimant departed from the standard of a reasonable person in her position. The relevant questions which follow are to what degree, what is the causal potency of such a departure and the appropriate apportionment of culpability.
30.As is apparent from the images appearing at Figures 6 and 7 below, had the claimant been walking and keeping a proper look out, she would have avoided the accident.
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
Figure 6: If claimant had been walking and raised her head at
this point, she would have seen the insured driver and been able to stop to avoid a collision
Figure 7: Because the claimant was jogging, when she did raise her head, she was unable to stop in time.
31.Accordingly, I am satisfied that had the claimant been keeping a proper look out she would have been able to stop and avoid the collision. When considering the degree to which the claimant and the insured driver departed from the standard of care of what is reasonable, it is necessary to have regard to the duty of care the insured driver owed to the claimant. The following factors are relevant to the relationship between the parties
(a) first, the status of the insured driver in control of a motor vehicle entering a shared space where a reasonably prudent driver would know to expect multiple pedestrians to be emerging from cars and bowsers. This knowledge required the insured driver to proceed with extreme caution when entering the shared space from the road and, it was incumbent upon the insured driver, in my view, to ensure that he drove in such a way as to take into account the risk that pedestrians would be moving about the shared space in circumstances where the view of the driver entering this shared space may be obstructed, or they may be distracted or inattentive, by reason of the need to attend to vehicles and the like. The risk of injury by reason of his inattention and speed was clearly not insignificant. It was not an unreasonable burden for him to slow down to a speed not different to that which is observed to have been adopted by the truck driver to which I have earlier referred, and
(b) second, I accept that the claimant should have been alert to her environment and should have, but did not look to see what was going on around her in her approach to the service station shop. While I accept, she did look prior to moving away from the bowser, and the two seconds in which she was traversing the shared space to reach the service station shop, she had her head down for the full two seconds that she traversed the shared space. In this respect she exposed herself to a risk of injury which might reasonably have been foreseen and hence was guilty of contributory negligence. However, the degree of the departure from the standard of care I do not consider to be significant in the circumstances.
32.Turning to the apportionment issue, it is relevant to take into account in assessing the parties’ relative culpability the fact that the insured driver "in charge of a powerful vehicle [and has] obligations to exercise care for pedestrians in the position of the [claimant]": Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452 at [46] whereas the
pedestrian's conduct, although contributorily negligent, does not endanger the driver of the vehicle or anybody else: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 at
16; Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 at [13] - [16].
33.I do not consider the fact of the claimant jogging to have occasioned her injuries. Rather, it was her inattention while she jogged. Given the speed at which the insured driver was travelling, the claimant’s inattention was only momentary, accordingly, it constituted only a minor departure from the standard of care which she ought to have exercised in the circumstances in which she was moving. Although, this omission contributed to the harm occasioned, because of its very transient nature, it does not warrant a finding of 30% contributory negligence in an exercise of apportionment when compared to the much greater departure from the standard of care taken by the insured driver. I would assess this inattention to constitute an apportionment of 10% contributory negligence in the circumstances of the collision.
Claimant's submissions on costs
34.The claimant makes an application pursuant to s 8.10(4) of the Act for an order for costs above the statutory amount. The claimant observes that the insurer had requested that the matter be determined on the papers, but the matter required an oral hearing in circumstances where the contributory negligence was significant and the issues in dispute were not easy. The claimant submits that the costs involved were reasonable and work such as attendance upon Chatswood Police Station to view the CCTV footage was required in preparation together with a written advice and a conference with client.
35.The claimant submits that it is just and equitable that when an insurer makes an allegation which is complicated and requires a face to face or audio-visual hearing and is then successful in defending the allegation of “not less than 30% contributory negligence” those costs above the statutory amount be awarded. The claimant provides me with a copy of the senior counsel's fee note for the matter. Additionally, the claimant's solicitor’s attach their fee note covering work carried out by the claimant's solicitor.
36.The claimant submits that in the circumstances, as the work is more than reasonable, the costs should be awarded.
37.I do not consider that the need for an oral hearing nor the attendance upon a police station to view CCTV footage constitutes exceptional circumstances in the context of
the statutory scheme. Both are envisaged by the statutory scheme as necessary incident of the determination of a miscellaneous claims dispute.
38.Without intending any disrespect to Senior Counsel who appeared for the claimant, this matter did not warrant the assistance of senior counsel. I would expect that a solicitor specialising in personal injury litigation would be as well placed to assist the claimant in an oral hearing such as was required in the present case. This is especially so in circumstances where Senior Counsel’s counterpart was a senior member of the solicitor branch of the profession.
39.I am satisfied that the claimant is entitled to the payment of legal costs but not above the statutory rate. I allow costs in the maximum statutory sum of $1,980 inclusive of GST for the miscellaneous claims dispute.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
40.For the purposes of s 3.38 the insurer is entitled to reduce the weekly benefits payable in respect of the motor accident by 10%.
41.Effective Date: This determination takes effect on 27 November 2020.
42.Legal Costs: The amount of the claimant’s costs assessed in accordance with the
Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.
LEGISLATION
43.In making my decision I have considered the following legislation and guidelines:
· the Act;
· Motor Accident Injuries Regulation 2017;
· the CLA, and
· Law Reform (Miscellaneous Provisions) Act 1965 (NSW).
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