Mitchell v GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mitchell v GIO [2022] NSWPIC 306
CLAIMANT:	Danny Mitchell
INSURER:	GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	20 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the injured person was mostly at fault pursuant to section 3.11 and 3.28 of the Motor Accident Injuries Act 2017; the Claimant was travelling on the Princes Highway in a 100km/h zone in right hand lane; collision occurred between his vehicle and the insured vehicle that stopped suddenly due to an undetermined mechanical failure; dispute as to whether the Claimant was keeping a proper lookout and safe distance; front dashcam footage of the insured vehicle available; case of March v Stramere Pty Ltd considered; Held– the Claimant was not mostly at fault; a reasonable person in the position of the Claimant would not have had a reasonable opportunity to avoid the collision; contributory negligence found to be 20%.
DETERMINATIONS MADE:	1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of ss 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 3 June 2021. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710.

REASONS FOR DECISION

Issued under s 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a dispute as to whether the injured person is wholly or mostly at fault under ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).

Mr Danny Mitchell (the claimant), a 69-year-old male, was injured in a motor accident occurring on 3 December 2020. He was the driver of a motor vehicle travelling along the Princes Highway when he collided with the rear of a vehicle insured by GIO (the insurer) which had stopped suddenly.
The claimant subsequently lodged an application for statutory benefits with the insurer that was initially accepted.
By way of notice dated 16 March 2021, the insurer advised the claimant that he was considered to be mostly at fault for the accident and accordingly liability for statutory benefits after 26 weeks was denied.
An application for internal review was lodged with the insurer. In a determination dated 5 May 2021, the insurer affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission (the Commission) and the matter has been allocated to me for assessment.
An assessment conference was held with the parties via videolink on 13 April 2022.
The claimant did not seek to question the insured driver, and therefore she was not in attendance. Whilst the claimant was in attendance, the insurer did not seek to ask any questions of him. The assessment conference consisted of oral submissions. Both parties presented logical, respectful submissions that have assisted me with this determination.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative Framework

Section 3.11 of the MAI Act provides as follows:
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(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%.
Section 3.28 of the MAI Act provides as follows:
(1)     An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2)     A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.

Circumstances of the accident and summary of evidence

In the Application for Personal Injury Benefits (claim form) the claimant provided the following version of events: “Coner on freeway car was stoped on right hand lane. No vision” [sic]
The NSW police report holds the claimant responsible for the accident. The “crash summary details” are recorded as follows:
“Veh 2 [the insured] was travelling south bound along the Prices Hwy Kiama. Driver 2 placed her foot on the brake to de activate the cruise control. When doing so the brakes of Veh 2 have stuck on causing her to come to a complete stop. At the same time Veh 1 was travelling at 100km/h and has rounded the bend to see Veh 2 stopped in the middle of the lane. Driver 1 has attempted to stop however has not been able to causing his veh to colide (sic) with the rear of veh 2. Driver 1 was conveyed to Wollongong Hospital.”
The insurer caused for an investigation to be undertaken by Quantumcorp. Before me is the report of Quantumcorp dated 24 February 2021.
The report includes photographs of the claimant’s vehicle, a 2004 Holden Rodeo utility vehicle. The photographs depict significant front end damage to the vehicle. Also included are photographs of the insured vehicle, a 2019 Hyundai i30 hatchback, which demonstrate significant rear damage.
The photographs are consistent with the description of the accident contained within the NSW police report.
The report attaches satellite images of the relevant stretch of the Princes Highway. The surrounding area could be described as being rural in nature.
Investigators were able to obtain statements from both the claimant and the insured driver.
Relevantly, the claimant states from paragraph 27 of his statement dated 15 February 2021, as follows:
“Whilst driving along the Princes Highway, I was driving in the right hand lane of two (2) lanes and I was maintaining a steady speed of 100km/h or just a little bit less.
From member, there were no other cars immediately ahead of me in my lane, but there was a constant flow of cars in the left hand lane just as I had driven onto the bridge over the Minnamurra swampland where I was then coming around a sweeping left hand bend in the road.
It was at this moment that I quickly glanced down for a split second at my speedo just to check that I was travelling under the speed limit, and I saw the speedo dial was just less than a 100, so everything was normal, however, when I looked back up again I saw for the first time a white car ahead of me in my lane.
I cannot estimate the distance the car was ahead of me when I first noticed it, but the car appeared to have been completely stopped, and I did not see any brake lights on the car at all.
I remember thinking to myself, ‘is that car stationary?’, and when I realised ‘yes it is’, which perhaps took less than a second or two, I reacted as quickly as I could by slamming on my brakes, which caused my brakes to lock up completely.
Unfortunately, I couldn’t steer to my left because there were other cards in the lane next to me, and I couldn’t steer to my right because there was a concrete centre barrier.
There was absolutely nothing I could do to avoid accident, and this is when the front of my Ute slid hard into the back of the white car that was completely stationary.
I can’t estimate the speed that I would have been doing at the moment of impact, but all I can say is that I was originally doing just under 100km/h and I was under heaving braking when the accident occurred.
I remember I was holding onto the steering wheel tightly with both hands in anticipation of the accident, but I can’t describe what I felt exactly at the moment of impact, other than experiencing sharp pain to my chest as I was literally gasping for air.”
The claimant confirmed in his statement that the NSW police took no action against him. He states that he does not believe that he did anything wrong. That he was driving in a 100km/h speed limit zone on a major highway.
He described there being no obstructions on the road with free flowing traffic when all of a sudden as coming around a sweeping left hand bend, he saw the car completely stationary in his lane with no brakes lights on.
The claimant asserts his belief that there was nothing he could have reasonably done to have avoided the accident in such circumstances, because it happened so quick and unexpectedly.
The statement of the insured driver, Ms Kellie Anne Eyre, was taken on 23 January 2021.
The insured noted she had purchased her vehicle brand new and described it as an entry model level in in the i30 Hyundai range with factory standard cruise control and ABS (anti-lock braking system).
The insured described having used the cruise control feature many times previously without any issue. The insured states that the cruise control could be disengaged by three different methods. Firstly you can tap the brake pedal, press in the clutch or press the cruise control ‘cancel’ button located on the steering wheel.
Following the accident the insured was advised that her vehicle also had factory fitted brake assist technology, meaning that the vehicle was supposed to automatically increase braking pressure in an emergency situation. The insured states that she was not informed of this technology at the time of purchase and she had no idea what brake assist was or how it was supposed to operate.
However, the insured states that she had never previously experienced a situation whereby the brake assist automatically activated and she described the overall mechanical condition of her vehicle as excellent.
From paragraph 33 of the statement, the insured driver provides a description of the circumstances of the accident as follows:
“After leaving the suburb of Dapto, I entered onto the Princes Highway and commenced to head south, and as soon as I entered the Highway, I reached the speed limit of 100km/h at which point I engaged the vehicle’s cruise control.
I have driven along the Princes Highway many times previously, perhaps once a month on average, so I am reasonable [sic] familiar with the road which is a divided road, with tow (2) lanes in both directions.
The weather on the day of the accident was fine. That is, it was a nice day but a bit cloudy, but the road was certainly dry and driving conditions were good.
Traffic was perhaps medium in density, but was otherwise flowing steadily.
After driving along the Princes Highway for a number of kilometres, I moved from the left hand into the right hand lane as I remember overtaking slower moving traffic, but I still had my cruise control set at 100km/h which is the speed limit.
After driving for about 20 minutes to half an hour, I was still in the right hand lane, and going around a sweeping and continuous left curve in the road, when I decided to disengage the cruise control because I knew there was an uphill climb approaching, where I intended to then use the manual gears.
At this stage I was going over what I now know is called the Minnamurra Bridge when I slightly tapped the brake pedal with my right foot and immediately took my foot off the brake pedal, as I have done so on many previous occasions without issue.
At this stage there was traffic in the lane to my left, and cars travelling behind me, but nothing directly in front of me in my lane.
However, as soon as I gently touched and released the brake pedal, I felt the brake pedal pull away from my foot without me even touching the brake again, and I felt the car coming to a sudden stop.
I had no idea what was happening as I had never experienced anything like this before. I was literally freaking out and I didn’t know what I could do to deactivate the brakes, so I just placed bot feet on floor [sic] hoping for the best outcome, but that didn’t happen.
I remember that as my car was suddenly going from 100km/h to zero in less than a couple of seconds, I looked in my rear view mirror and saw a white Ute travelling directly behind me, perhaps within one and half to two car lengths away, and I was saying, ‘please stop, please stop’, but I did notice the driver of the ute was looking down and appeared to also be reaching for something.
At this point my car was now at a complete stop and as I was still looking in the rear view mirror, I saw the guy look up and the expression on his face said it all as he would have realised he was about to crash into the back of my car.
I then felt an almighty crash and I heard the sound of crumpling metal, but that’s all I remember because I was jolted forward in my seat and my head hit the steering wheel which caused me to momentarily lose consciousness.
She also states that there was a gap of 20 metres or more between the two vehicles caused by the claimant’s vehicle pushing her vehicle forward.
The insured driver describes providing a notebook statement to police which she signed, however, has not heard from the NSW police since. She is not sure whether the accident was being further investigated by them. She confirmed that no action was taken against her by the NSW police.
The insured vehicle was ‘written off’ by the property damage insurer, and the insured driver confirms she did not pay an excess as part of the claim.
As to the cause of the accident, the insured driver states that she can only put it down to a probable malfunction with the brake assist. She states that there was no logical reason why she would slam on her brakes and go from 100km/h to zero in a couple of seconds on a major road with cars following behind her.
The insured driver also adds that due to her observing the claimant looking down and apparently reaching for something, she believes that had he been paying attention he could have either completely stopped and avoided the accident altogether, or the force would not have been as bad.
The investigation report is essentially a summary of the attached material. I therefore, have not taken into account the content of the report itself, but rather have based my findings on the primary source material attached.
Before me is the internal review determination of the insurer. It is noted that the reasons provided include comment on safe distance of vehicles relative to speed. I do not place any weight on these comments without accompanying expert evidence.

Dashcam footage

The insured driver provided dashcam footage to the investigators. That footage is before me. The footage is from a front end camera only, and there was apparently no camera fitted to the back of the vehicle. Accordingly, the impact between the two vehicles is not recorded.
I have reviewed the footage multiple times. The footage demonstrates medium density traffic with two lanes of traffic. The conditions are fine and it is daylight.
The insured vehicle is observed moving from the left lane to the right lane approximately 30 seconds prior to the accident occurring. Traffic is flowing normally with no apparent hazards on the roadway. The vision demonstrates the insured driver to have an unobstructed view of the roadway for a reasonable distance ahead with at least two vehicles positioned in the left lane more than several car lengths ahead.
The footage demonstrates the insured vehicle coming to a complete and sudden stop on the roadway. A loud screeching sound of brakes is heard followed by an obviously heavy impact from behind knocking the camera from the dash. Footage is thereafter from the inside of the vehicle.

Submissions

The claimant’s submissions

It is submitted that it is of high importance that whilst the police attended the accident scene, and subsequently investigated it, no action was taken against the claimant.
Whilst the submissions state that the NSW police report does not show any indication that the claimant was at fault, it is noted that the report does in fact state “Y” to the question of whether the claimant vehicle was at fault. Nonetheless, whilst relevant, I do not consider that fact in isolation to have any significant bearing on my assessment of the matter. I am required to make an independent finding after considering all the evidence and submissions as a whole. I accept Mr Potts oral submissions that such notation in the report reflects the opinion only of the person who filled out the report.
It is submitted that the insured driver’s assertion that she saw the claimant as reaching for something prior to the impact is not plausible. It is submitted it is inconsistent with the claimant’s account and it is also “highly unlikely” that she would have been able to see the claimant doing this from the rear vision mirror as she braced for impact. It is asserted that a line of sight from a rear vision mirror to a ute would not enable clear vision of such act.
The claimant is said to have been traveling at the lawful speed, that he looked at his speedo but did not engage in any other action. It was then that he saw a vehicle which was stationary in the right hand lane and it took him a moment or two to appreciate the situation. He then applied the brakes but was unable to avoid the accident.
At the assessment conference, Mr Potts highlighted the sweeping nature of the bend where the accident took place. It was submitted that the view ahead was limited.
Mr Potts also referred me to the case of March v Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (March). The claimant’s representative submits that such case involves similar circumstances, and the contributory negligence the Court found was 70%. However, the circumstances of the subject case are such that a contributory negligence finding would be much lower.
I note that the case of March involved a defendant truck which was parked in a suburban street whilst the occupants unloaded goods. The truck was parked in the middle of the road. The parking and hazard lights were illuminated.
It is submitted that in the subject claim, the circumstances are different as the insured was not doing a reasonable job of driving, that he was travelling at the speed limit and only momentarily glanced downwards. Also, importantly, it is submitted that the brake lights nor the hazard lights were activated at the time to warn that the insured vehicle was stationary.
In such circumstances it is submitted that I would not find the claimant to be wholly at fault and that any deduction for contributory negligence would be no more than 25%.
The claimant’s representative also highlighted the submission that I would be satisfied that the insured vehicle’s brake and hazard lights were not activated and that the insured simply put her feet on the floor and hoped for the best. On this point I questioned Mr Potts as to whether the insured driver could have reasonably been expected to have done anything different, and whether she would have had the presence of mind to activate the hazard lights in the ‘agony of the moment’ of the situation.
Mr Potts helpfully noted that it was not so much a question of insured driver’s actions, but instead illustrates the situation the insured was faced with in the context of what he could have reasonably have been expected to have done to avoid the accident.

The insurer’s submissions

The insurer notes in written submissions that there is no mention in the claimant’s statement as to when he entered lane two of the Princess Highway. It is also highlighted that according to the claimant’s statement, the first time he was aware of the insured vehicle was when he looked up and saw the insured vehicle stationary.
The insurer submits that the evidence is such that I would be satisfied of the following:
a.    the insured correctly disengaged the cruise control by pressing he brake;
b.    the insured was in lane 2 for 30 seconds before the accident occurred;
c.     the claimant ought to have been aware the insured was travelling ahead of him;
d.    the claimant was not keeping a proper lookout;
e.    the claimant was not keeping a safe distance behind the insured vehicle;
f.     if the claimant had been keeping a proper lookout and a safe distance behind the insured vehicle, he would have been able to stop safely to avoid a collision, and
g.    the claimant was wholly or mostly at fault for the accident.
At the assessment conference, Ms Papaspiros confirmed the content of the written submissions were relied upon. Succinctly, the insurer submits that the claimant was not keeping a proper lookout and was not keeping a safe distance.
It was also submitted that the dashcam footage clearly contradicts the claimant’s evidence in his statement that there were no vehicles directly in front of him. Moreover, the evidence that the first time he became aware of the insured vehicle was when he came upon it stationary in front of him suggests that he was not keeping a proper lookout. As noted above, this point was countered by the claimant’s representative with an assertion that the claimant would not have been able to observe the vehicle due to the sweeping bend.
In respect of the question of whether the brake lights were activated, Ms Papaspiros submitted that presumably the insured vehicle’s brake lights would have been activated, however, conceded that there is no expert evidence to this point and it necessarily therefore amounts to mere speculation.
Ms Papaspiros also submitted that the assertion that the insured vehicle was obstructed by the sweeping bend is contradicted by the dashcam footage which depicts a clear view of the roadway ahead.

Reasons

Essentially, the question for determination is whether the claimant is mostly at fault for the accident. “Mostly at fault” is defined as being contributory negligence greater than 61% (ss 3.11(2) and 3.28(2) of the MAI Act).
When assessing contributory negligence, I am to be guided by s 5R of the Civil Liability Act 2002. Section 5R provides as follows:
(1) The principles that are applicable in determining whether a person has been negligent 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.
(2) For that purpose –
(a)The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)The matter is to be determined on the basis of what that person knew or ought to have known at the time.
I am therefore to assess what a reasonable person in the position of the claimant could have been reasonably expected to do to avoid the collision.
I have concluded that on the balance of probabilities that the insured’s vehicle brake lights were not activated. I accept the claimant’s evidence as set out in his statement to be truthful in that respect.
It cannot be determined the reason for the insured vehicle coming to a stop, however, it is reasonable to conclude that some type of malfunction occurred, and I accept on the evidence that whatever occurred with the insured vehicle extended to the brake lights not being illuminated. I also note that the insured driver states her feet were placed onto the floor rather than depressing the brake. I also have no expert evidence to confirm with sufficient certainty that the brake assist technology would have illuminated the brake lights even if the insured had not depressed the brake pedal herself. Indeed, the insured vehicle coming to a stop due to the brake assist technology is just mere conjecture in the absence of any expert evidence. This is something that the insured driver has concluded, however, there is nothing to say that some other malfunction occurred with the vehicle.
I do not, however, accept the submission on behalf of the claimant that his vision was obscured by the sweeping nature of the bend. I have reviewed the dashcam footage which depicts the insured vehicle’s path of travel. The subject bend, on my observation, does not obscure the roadway such that the driver of a vehicle would not be able to observe vehicles ahead.
In respect of the question whether the insured driver was not keeping a proper lookout, I note the evidence of the claimant that he had momentarily looked down to check his speed. On the other hand, the evidence of the insured driver is that she observed, from her rear view mirror, the claimant looking down on approach behind her vehicle and that he appeared to be reaching down.
I do not accept the submission on behalf of the claimant that the insured driver would not be able to observe from her rear vision mirror whether the claimant was looking down or not. I accept the insured driver’s evidence that she looked into the rear vision mirror as her vehicle came to a stop as being truthful and indeed a predictable measure one would take in such situation. I accept her evidence that she was able to observe the claimant looking down as he was approaching the rear of her vehicle. Other than the submission itself, I have no evidence before me that suggests that the insured driver could not have observed what she asserts she did.
On the evidence before me, I accept the insurer’s submission that the claimant was not keeping a proper lookout and that he was not adequately observing the roadway in the lead up to the accident. In this regard, the dashcam footage confirms that the insured driver was in the right hand lane for around 30 seconds prior to the accident, and the claimant’s evidence that he could not recall any vehicles in front of him is suggestive that he failed to keep a proper lookout. I also accept that the claimant was looking down, and not at the roadway, for more than a ‘split second’ as he states.
I am not able to conclude whether the claimant was keeping a safe distance behind the insured vehicle on the evidence before me. Noting my finding that he was not keeping a proper lookout it may be the case that the distance between the vehicles could have been safe on the provision that he was keeping a proper lookout such that he was able to take reasonable preventative action. I therefore make no finding in that regard.
Whilst I have made a finding that the claimant failed to keep a proper lookout, I do not accept the insurer’s position that the claimant was mostly, or indeed wholly, at fault for the accident.
The accident is not the usual rear end collision type scenario. The accident occurred on a major highway in a 100km/h zone and in the right hand lane. This is to be contrasted with a rear end collision in a suburban area, such as the facts in the case of March. In a suburban street, it would be reasonable to assume that a number of hazards may present themselves on a roadway such that vehicles would come to a stop. For example, traffic congestion, pedestrians or merging vehicles from intersections. It could not be reasonably expected in the usual course of events for a vehicle to come to a sudden and complete stop in the right hand lane of a major highway. Particularly one where traffic was flowing freely at a speed of 100km/h.
On this basis, I consider that any finding of contributory negligence would be significantly less than the finding of 70% contributory negligence in the case of March.
Based upon my findings, the claimant was presented with a vehicle stationary with no hazard of brake lights illuminated. In the circumstances, the claimant had little option but to apply the brakes forcefully as he did. Besides having not kept a proper lookout leading up to the accident, I make a finding that a reasonable driver could not have taken any further reasonable steps to avoid the accident.
However, I have accepted the insurer’s submission that the claimant was not keeping a proper lookout for the reasons set out above. I find it reasonable to assume that had he been keeping a proper lookout the force of the impact would have been less severe.

1.71. In the circumstances assess contributory negligence of the claimant to be 20%. It follows therefore, that I make a finding that the claimant is not mostly at fault for the accident given my assessment of contributory negligence does not meet the threshold of more than 61%.

Costs and Disbursements

As a regulated miscellaneous claims assessment matter under Schedule 1, cls (3)(2)(d) & (e) of the Regulation, legal costs may be awarded.
Schedule 1 cl (3)(1) of the Regulation provides that the maximum costs of legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetory units. The current value of a monetary unit is $106.89.
I am satisfied that the claimant is entitled to the payment of legal costs in the amount of the maximum regulated amount.
I therefore allow costs in the amount of $1,710.

Conclusion

For the purposes of s 3.11 the motor accident was not caused by the fault of another person
For the purposes of ss 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person

78. Effective Date: This determination takes effect on 3 June 2021.

79. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710.

Legislation

16.80. In making my decision I have considered the following legislation and guidelines:
·        the MAI Act;
·        the Regulation, and
·        the Civil Liability Act 2002.

[2022] NSWPIC 306

20 June 2022