Mohammadzade v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mohammadzade v Allianz Australia Insurance Limited [2022] NSWPIC 757
CLAIMANT:	Kamal Mohammadzade
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Bridie Nolan
DATE OF DECISION:	11 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; claimant was driver of ute failing to use red flag for item protruding from vehicle; vehicle parked at traffic lights; insured truck collided with vehicle; insured driver says that when he saw the other cars slowing in front of him, he applied the brakes; dispute pursuant to section 7.42 of the MAI Act; whether the insurer is entitled to reduce statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the MAI Act; whether contravention of regulation 50L of the Road Transport (General) Regulation 2013 with respect to the projection of loading or equipment of vehicles and in contravention of rules 53 and 54 of the Road Rules 2014; whether these safety measures undermined the ability of insured driver to exercise reasonable care in the form of keeping a proper lookout; whether insurer discharged statutory onus to reduce statutory benefits payable; Held – insurer did not discharge onus to satisfy the Commission that the accident was caused by the failure to use safety measure in the form of a red flag on object protruding from ute; insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* 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 of the Motor Accident Injuries Act 2017 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 2 October 2020. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

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

This determination relates to a miscellaneous dispute in connection with a claim under Schedule 2, cl 3(g) referred to me pursuant to s 7.42 of the Motor Accidents Injuries Act 2017 (NSW) (the Act), as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act.

Background

In a Certificate of Determination on Internal Review dated 8 March 2021, the insurer concluded that Kamal Mohammadzade (the claimant) was 25% contributory negligent for the motor accident. It stated that the decision was made pursuant to Schedule 2, cl 3(g) of the Act on whether the insurer is entitled to reduce statutory benefits payable in respect of a motor vehicle accident in accordance with s 3.38 of the Act.
The insurer considered the claimant to be in contravention of Regulation 50L of the Road Transport (General) Regulation 2013 with respect to the projection of loading or equipment of vehicles. The insurer was of the view that the claimant did not attach a visible red flag or other suitable object in the rear of the loading/equipment protruding from the rear of the utility tray. It noted that the insured vehicle had collided with the equipment protruding from the rear tray before coming to a stop. The protruding gate fence subsequently collided with the rear window. This also supported the photographic evidence of damage of both vehicles immediately following the subject accident.
It was satisfied on the balance of probabilities that had the claimant attached a visible flag or object to the rear of the equipment, sufficient warning would have provided other road users travelling in the vicinity of the vehicle preventing the subject accident.
It also considered the claimant to be in contravention of ss 53 and 54 of the Road Rules 2014 NSW (Road Rules) which I will set out.
With reference to the above Road Rules, the insurer was of the view that by lowering the ute’s tailgate flap over the rear brake lights, obstructing them, leaving insufficient warning to other road users travelling behind the claimant, of the vehicles intention to stop and therefore caused the vehicle to be non-roadworthy. In support of this the insured driver confirmed in his statement to police and investigators that the rear brake light was obstructed and not visible during the time of the accident.
Additionally, photographs were taken of the vehicle immediately following the accident further confirming that the tailgate was obstructed and the entirety of the rear brake lights. Had the rear brake lights not been obstructed, sufficient warning would have been provided to other road users of the intention to stop and therefore prevented the accident from occurring.
It accepted that the insured driver contributed to the accident by failing to keep a proper lookout whilst travelling behind the vehicle and ought to have kept a greater distance and safety whilst travelling behind the claimant’s vehicle.
It concluded therefore that a properly loaded vehicle with the presence of a red flag or other visible material and keeping the brake light unobstructed would have provided sufficient warning of the vehicle’s intention to brake. Accordingly, it assessed the claimant’s contribution to the accident at 25%.

The accident

The claimant was stationary at traffic lights at the corner of Church Street and Junction Street, Ryde in the state of New South Wales, when the insured was unable to bring his vehicle to a stop in time and collided with an overhanging object on the claimant’s vehicle.
The claimant says that he was travelling to a customer’s house to deliver the aluminium slat panel used for gates and fencing. His vehicle was stopped at the red traffic lights. There were around three to four cars in front. The insured driver came from behind and smashed into the back of the claimant’s vehicle. He felt a big bang and the ute was pushed around a metre forward. It was later written off. The impact caused the aluminium slat to crush the rear window of the ute compartment and caused rear glass to smash the window and fly into the rear of the claimant and his brother’s head and neck. He says that he recalls that the rear gate of the ute was closed upright before the accident and the aluminium slat was secured fast to the rear tray. They were also given an orange flag by the company that supplied the aluminium slat to be fastened to the tray when in transit. The aluminium slat had been fastened by someone with a lot more years of experience than he. He said that he had worked with this person for several years. After the accident, he and his brother parked the vehicle at the side of the road and exchanged details with the insured driver. He said after a few minutes he took a few pictures of the accident, which are before me on this application. One of the pictures showed the ute’s rear tray gate was unsecured and down. The claimant was adamant the tray gate was up before the collision. He said that the string fastening the aluminium slat had come off from the collision.
The claimant’s brother says that he was the passenger in a ute being driven by his brother. He said that the pair were stopped at the traffic lights at around three to four cars back from the intersection. He says he briefly saw a truck coming at high speed in the side mirror from behind him. The truck was coming from behind him at high speed and collided with the rear of the truck at high speed. He felt the truck being hit and glass flying from the rear window. After the accident, they parked at the side of the road and got out of the vehicle intending to exchange details. He recalls that the other driver came out of the truck and acted aggressively towards him and his brother. He said his brother took some photos of the accident before he drove off. He says he recalls that before the accident the rear gate of the ute was up. He recalls that the aluminium slat had been loaded in a shop at Canterbury Road and that an orange flag had been tied to the aluminium slat at the back to inform others of the load.
The insured’s evidence was variously as follows:
“On Friday the 2^nd October I was driving IVECO EVO Tech 2003 rego NSW QSCT01 North West down Church Street Ryde in the left lane. It was bumper to bumper this ute was infront of me and I was driving slow in 3^rd low gear. I could see a car ahead of me turning left into Junction St. I slowed down and saw the ute but did not see their break light. I’d come short of his ute but did touch the ute, I tapped the sliding gate that was hanging off the back of the ute. No more than 15km.hr, there was no damage on my truck or on his ute. I created a corridor to make it safe for us to hop out of the car, I’ve approached both the driver and his passenger. I asked them if they were ok, they said ‘yes but you fucked my car’. I told them it was an accident + it’s on the gate. I hadn’t seen the window yet. I told them that I couldn’t see the gate because it had no flags that’s why I accidentally hit it. The passenger pointed at his seat and showed me the broken glass and told me again that I fucked his car. I said ‘let’s exchange details and get out of here as there is traffic building up. the guy kept shooshing me & was taking photos of my truck. We then exchanged details and I told them I was going, the driver started to say ‘my neck hurts.’ I turned around and told him that I asked if he ws okay and you said you were, he said you cunt, leave my neck is hurting. I told him I’m not an ambulance officer and then I left.”
An extract of his interview with the insurer’s investigator was as follows:
“Driver of the Iveco truck ADMON ROMEL stated:-
… I didn’t see his brake lights, everything was covered, I’ll show you the photo … and because everything was covered I looked in front of him and then saw the cars braking. I slowed own and … that’s when I tapped … not his Ute, I never hit his Ute …
There’s no number plate, there’s no brake lights so I didn’t see him brake but luckily I’m in a truck so I saw above him and in front of him and saw other cars. One car was trying to turn into Junction Street and that’s when I knew the traffic is slowing down in front of him. Mind you, we’re doing fifteen K’s an hour, twenty max.
… So I’ve hit the brake. I mean it’s a hundred and thirty tonne rated road train, rated truck so … it’s been designed and approved by RMS to stop a hundred and thirty tonne. So … at fifteen to twenty K’s to hit the brakes … with only seventeen tonne you can imagine like it stops pretty much suddenly and I just tapped this oversize load that he’s carrying with no flags on it.
… No brake lights, no number plates, no nothing, no blinkers … You can’t see nothing so you don’t know what that vehicle is thinking …
Q: … What’s this on the back of it?
A: … it looks like a sliding gate … it’s a massive sliding gate maybe three point something metres long. Shouldn’t be on the ute to begin with. Should be on a small truck.
… So, I’ve just tapped it. That’s it … You can even see, look at it closely and you can even see, there’s no pain chips on it or anything … So it’s not even that big of a hit … but it wasn’t tied down property. It was tied down with … one strap …
Q: So, just touched the gate … did not collide with …
A: With the vehicle at all.
… after the door was opened he pointed at the seat that they were sitting at, there was a bit of shattered glass there … from a window … it would be the back window because the sliding gate … that they have on top … had slid forward because of … inadequate … tie downs.”

Insurer’s submissions

The most contemporaneous evidence upon which the insurer says it relies, is contained in the police statement provided by the claimant on 3 October 2020.
The statement notes his vehicle was completely stopped when he felt a jot forward and heard a crash noise. He exited the vehicle and spoke with the truck driver and exchanged details. He stated that his brother, who was in the passenger seat, called the ambulance and instructed the insured driver to call the police. He was taken to North Shore Hospital due to alleged injuries in the accident.
At the oral hearing which I held on 3 December 2021, the claimant expanded upon the above evidence and asserted that the insured vehicle was travelling at 80 kmph and that the impact caused the claimant’s vehicle to be thrown forward a distance of three metres.
The NSW police report reflects the incident was reported at 12.15pm on 3 October 2020, and that on 15 October 2020, the insured attended Liverpool Police Station to provide a statement.
The police notebook entry reflects a statement to the effect that on the relevant time and date, the insured was travelling in the left lane of Church Street in Ryde and traffic was described as “bumper to bumper”. He saw a vehicle ahead of him turning left into Junction Street, and slowed down when he saw the claimant’s vehicle, which was a utility vehicle. He did not see the brake light. He stated that he came short of the utility vehicle and did not touch it but touched the sliding gate that was hanging off the back of the ute at not more than 15 kmph. He noted there was no damage to the insured vehicle or to the utility. The statement contains details of a heated exchange which took place afterwards, including that he told the claimant he could not see the gate because it had no flags and that was why he accidentally hit it.
On the day following the insured’s statement to NSW police, the claimant completed his application for personal injury benefits and at that time described the circumstances of the accident as follows:
“My car was on the red light. My brother, in the passenger seat, saw the person was on the phone while he was driving the car and the car smashed into ours [sic] from behind. It was a big truck coming around 80 km/h per hour. Our truck took two to three jumps.”
The insurer notes that the claimant’s statement to police did not mention the speed at which the truck was allegedly travelling, and there was no suggestion that the insured vehicle was travelling at 80 kmph, or that the insured was on his phone at the time of the accident. In this regard, the NSW police report recorded the pre-accident speed of the insured vehicle at 50 kmph.
The insurer submits that the claimant’s evidence of the insured vehicle travelling at a speed of 80 kmph is implausible and should not be accepted. Further, it submits, his evidence in this regard goes to credit. The expert evidence relied on by the insurer concluded that the claimant’s evidence that the insured was travelling at 50 to 80 kmph was not credible. This conclusion arrived was based on the energy associated with the kink-style deflection in the load barrier; the dent in the sheet metal panel surrounding the rear window frame; and the shattering of the glass in the rear window.
The claimant’s brother, and front seat passenger, provided a statement in which he reported observing the approach of the insured vehicle at “high speed” which collided with the rear of their truck at high speed. He also recalled that prior to the accident, the rear gate of the utility was up and stated an orange flag had been tied to the aluminium slat at the back. The insurer repeats its submission with respect to the credit of the claimant’s brother, and submits his evidence is infected by the same issues as the claimant, in that the objective expert evidence indicates that the speed the insured vehicle was travelling at was nowhere near the 50 to 80 kmph alleged at the time of the collision. Further, the photographic evidence refutes any assertion that there was an orange flag displayed at the time of the collision.
The claimant’s evidence at the oral hearing before me was that he personally secured an orange flag, twice the size of a Kleenex tissue, to the top corner of the gate protruding from the rear of the tray. The claimant also gave evidence that the photographs 11A, 11B and 4 were taken of him approximately one minute after the accident. He conceded there was no orange flag shown in the photographs but could not provide an explanation why it was not apparent. In the insurer’s submission based on the evidence of the insured, there was no orange flag fixed to the gate in the lead up to the accident, and no warning that the gate was protruding from the utility.
The insured provided a statement to NSW police in a more detailed account in a transcript of the interview with its investigator. His evidence is generally consistent that there was no impact between the vehicle and the utility as such, rather, the impact was with the overhanging gate. The insurer submits that in this respect the insured’s evidence is supported by the objective photographic evidence which shows no damage to the rear of the tail gate or tray of the claimant’s vehicle, consistent with the speed at which he was travelling, being less than 15 kmph.
The insured also confirmed that he could not see a number plate, brake lights or blinkers on the claimant’s vehicle, it was only the indicator on the vehicle further ahead that prompted him to apply his brakes when he observed the vehicle turning left. He confirms that the exchange with the claimant at the scene was to the effect that they should have had an orange flag on the rear of the gate of the vehicle.
The insurer relies upon the photographs taken at the scene of the accident and submits that they provide objective evidence which supports the insured’s version.
The insurer submits that the claimant’s response to the question posed with respect to the position of the tailgate were unsatisfactory and unhelpful. While the claimant sought to contend that the straps shown in photograph 11A were not taut, the insurer submits that it is apparent to a lay person’s observation that there is no slack in the strap which would explain how the tailgate dropped a distance estimated by the claimant’s counsel of 30cm.
While the insurer notes that it bears the onus of proof, it submits that the combination of photographic evidence and the opinion of its expert discharges that onus. It submits the claimant’s evidence should not be accepted over the consistent statements provided by the insured, which is supported by the objective photographic and expert evidence.
It notes my observation that I found the claimant to be a forthright witness and submits that to accept the claimant over the unchallenged evidence of the insured would require me to dismiss and not accept the following:
a.     the photographs taken by the claimant within one minute of the accident which did not show an orange flag displayed;
b.     the photographs taken by the claimant within one minute of the accident that show the tailgate to be down;
c.     the strapping observed in photographs 7, 8, 9 and 10 to be taut, consistent with the slat gate being in the same position it was fixed, to the tray to the vehicle, and
d.     the evidence of the expert which establishes the speed at impact was consistent with the insured’s statement that the evidence of the claimant is not credible.
In addition to this evidence, the insurer submits that the damage shown in the photographs is not consistent with the insured vehicle travelling at 80 kmph. It follows therefore its submission that the claimant’s evidence to the effect that the vehicle was propelled at a distance of three metres ahead and did not impact a stationary vehicle ahead is not credible.
Finally, it submits that for the claimant’s evidence to be accepted, I would need to accept that the slat gate was positioned hinged on the bottom left corner, with that corner being the only part of the slat gate which was resting on the tray of the utility. The insurer submits this is highly improbable and that it is common sense that the gate was not secured in such an unsafe manner, and even more improbable that the claimant would have been able to reach the top corner of the gate to affix the flag as he asserts.

Irrespective, even in circumstances where I were to find that the gate were to have been hinged on one corner and resting on the top of the tailgate, the fact that the gate did not have a warning flag attached as it submits is evidence by the photos, and the fact that the insured vehicle only impacted with the protruding gate and not the claimant’s vehicle, support a finding of contributory negligence due to the inconspicuousness of the narrow profile of the load projecting rearward from the utility, which contributed to the difficulty in the perception of the hazard. In this regard it relies on the report of Mr Griffith.
The insurer concludes its submissions by saying that the claimant was negligent due to the manner in which the vehicle was loaded, with all brake, turning and running lights and registration plates being obscured such that this was contributory to the accident and cause of the claimant’s injuries.
In the alternative and in addition, the insurer submits that the claimant was contributorily negligent in failing to warn of the hazard, by creating a narrow profile load projecting from the rear trailer of the claimant’s vehicle, with the hazard being only part of the claimant’s vehicle which was impacted.
Finally, the insurer submits that I would not accept the evidence of the insured over that of the claimant and his brother, noting the inconsistencies in their account, and that of the expert evidence which supports the insured’s estimate of speed. Furthermore, having regard to the photographic evidence, it is implausible that the gate was secured in any way other than depicted in the photographs.

Claimant’s submissions

The claimant submits that the insurer bears the onus of proving that the claimant failed to take reasonable care for his own safety and also contributed to the causation of the accident: Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 at [13]. The claimant submits that accepting that the claimant failed to take reasonable care for his own safety by having the tailgate down and not affixing a bright coloured flag to the back of the fencing gate and panel, the insurer has adduced no evidence of any probative value to discharge the onus and that these failures contribute to the causation of the accident. In support of this proposition, he advanced the following submissions:
a.     In the record of interview, the insured driver states that the traffic was “bumper to bumper”. The truck was empty, and he was travelling at 15 to 20 kmph, and he was positioned above the claimant’s ute and could see the cars in front of him.
b.     The insurer relies upon the expert report of Mr Griffith who concludes that the “primary crash casual features” included “the narrow projection rear load” and “the brake lights” being obstructed by the tailgate. Yet, Mr Griffith does not expose his underlying methodology or reasoning process or indeed his relevant expertise. It is on this basis that the claimant submits that this evidence is irrelevant, relying upon the High Court decision in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588.
c.     It is fundamental to the insurer’s case to adduce the expert opinion relating to the braking distance based on assumed speed and reaction time. There is none in the expert’s report. The expert had the record of interview but does not even refer to it. The claimant submits that this is important because any basic search of braking distances on the internet will allow one to access breaking distance calculators. At 15 kmp/h it takes 1.26 metres to stop. At 20 kmph it takes 2.4 metres to stop. However, there was no evidence before me to this effect. The claimant submits this evidence should be before me so that I am in a position to determine whether the insured’s reaction time was unreasonably delayed because he could not see the rear brake lights.
d.     In the insured’s own evidence, when travelling at 15 to 20 kmph in “bumper to bumper” traffic with a clear view of cars ahead, the claimant submits that common sense would tell me that the insured ought to have been able to react almost instantaneously to avoid the accident. He provides no evidence going to the fact that his reaction time was compromised because he could not see the brake lights or that he had trouble making out the panel extending over the end of the ute tray. In such circumstances, the claimant submits that the overwhelming inference is that he was simply not paying attention. He submits that, it is at this point where the case should end.
The claimant submits that his evidence is not shaken or controverted. His explanations for what was shown in photographs 11A and 11B (the tailgate being down and the absence of the orange flag) were reasonable and logical.
As he submitted orally, the two abovementioned photographs demonstrate the presence of cargo cover across the top of the equipment on the left side of the ute’s tray with surplus material bunched up on top, exposing the rear side of the equipment to the road below. It is common knowledge, he submits, that it is not only illegal to drive with the tailgate down covering the rear brake lights, but also, not to secure your load with a cargo cover. He asked rhetorically: Why would the claimant cover the top of the loose equipment with a cargo cover but not extend it down over the rear side and secure it in circumstances where it was not just illegal, but he might also lose the equipment out the back, if for example he were to travel over a speed bump? He submits that the only reasonable inference to draw is that he did extend the cover over the side of the equipment and secure it because the tailgate was up thus stabilising the loose equipment.
He submits against this evidence that the insurer did not tender any proper evidentiary statement of the insured and he was not available for cross-examination. He submits his long and “rambling record of interview” should not be given much weight.
The fact that the police did not produce the alleged footage from the dashcam of the truck is otiose; rather, the fact that the insurer by his own lawyers or investigators did not produce it is highly relevant.
He submits that it was either an omission or that the footage was electronically copied and stored yet the SD card was lost by the police and the footage did not support, or the footage did not support the insured’s allegations or contradict or contravene the claimant’s tested version of events. Either way an explanation as to why this evidence was not adduced was necessary and not forthcoming. He does not rely on Jones v Dunkell (1959) 101 CLR 298 at [320], rather he relies on the decision of Ho v Powell where Hodgson JA (Beazley JA) at [15] sights what Lord Mansfield said in Blatch v Archer (1774) 98 ER 969 at 970: “all evidence is to be weighed according to the proof which was in the power of one side to have produced and in the power of the other to have contradicted.”
The claimant submits that in all the circumstances the only necessary and reasonable inference to draw is that it was in the power of the insurer to produce the dashcam footage, if it existed, and it did not.

Documents considered

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

Reasons

The apportionment exercise in s 3.38(3) of the MAI Act is a discretionary one. Unlike the situation under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act),
s 138, which was the subject of discussion in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (see, in particular, [84]-[85]), the Act was enacted later than the Civil Liability Act 2002 (NSW) (CL Act), such that s 5R of the CL Act should be taken as subject to s 3.38(3) of the Act. For this reason, caution is necessary with respect to the authorities which pre-date the Act. In particular, the change of emphasis which was said to have arisen from the enactment of the CL Act and which raised doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage has arguably undergone a subtle change. The prevailing requirement emerging from s 3.38 (in particular, as derived from the nature of the role of the Dispute Resolution Service in s 3.38(3)(c)) is that I apportion liability according to what I consider and reason to be just and equitable in the circumstances of the case.
To rely too heavily upon cases which have been decided under the regime provided by the MAC Act would work to elide causation and culpability. Culpability is the measure of departure from an appropriate standard of care and may be viewed separately from the causal link between carelessness and harm of which s 5R of the CL Act has been construed to speak. The breach by a driver is not of a duty owed to herself or himself, but of a duty of care owed to each of her/his passengers and to other road users. An apportionment which is “just and equitable” requires the weighing of the culpability of each claimant as against that of the negligent insured driver and an assessment of the contribution of the lack of care of each to the damage caused. The range within which the resultant apportionment lies may, in a particular case, be quite broad and is essentially fact driven.
The approach in Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 therefore remains relevant, notwithstanding the changed legislative landscape. Section 3.38 of the MAI Act does not purport to impinge on the obligation to have regard to the injured person’s share in the responsibility for the damage; it should not be read as an exception to s 9(1) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to which it is made subject by s 3.38 of the Act.
Under the newly enacted statutory regime, the claimants, and the insured driver’s shares in the responsibility for the injury occasioned are a mandatory factor in considering a “just and equitable” apportionment. The legislative decision to maintain the requirement of just and equitable determination renders the effect of the assessment under s 5R of the CL Act subject to the power to consider other factors relevant to the “just and equitable” test. What I must do, therefore, is balance the actions of the claimant and the insured and their relative culpability for the damage. An assessment of the culpability of a claimant and an insured, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 at [68], Hayne J identified the following factors:
(a)    there must be a comparison of the degree to which each part has departed from what is reasonable;
(b)    regard must be had to the relative importance of the acts of the parties in causing the damage, and
(c)    the whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination.
Further, at common law and under the CL Act, 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 …”
As it is the insurer which wishes to rely upon the existence of the condition of exclusion under s 3.28(1)(a) of the MAI Act, this authority would appear to render incumbent upon it, 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]. As has been noted above, the insurer accepts that it bears this burden.
There is no doubt that the failure to expose one’s brake lights and use a yellow or orange flag to demarcate a protruding object from the vehicle or? departure from a reasonable standard of care. In the absence of these two safety measures, a driver or owner of the vehicle may be undermining the ability of fellow road uses to exercise reasonable care in the form of keeping a proper look out and maintaining a safe distance between vehicles. However, as the claimant submissions clearly enunciate, the central question is that of causation.
As the claimant correctly submits, while these matters to which upon which the insurer has relied would properly constitute departures from the reasonable standard of care, the inquiry does not stop there. Regard must be had to the relative importance of the acts of the parties in causing the damage.
Having had regard to the insured’s evidence on this issue, although he asserts the absence of brake lights, he does say that the fact that cars were slowing down at the intersection prompted him to brake. To my mind this is consistent with the kind of look out one would expect a driver of the insured vehicle to maintain. Because of the height of the cabin on the insured vehicle one would expect that a driver would take his cues in a line of bumper-to-bumper traffic not from the vehicle immediately in front but from vehicles further along in the traffic queue. The insured driver says that when he saw the other cars slowing in front of him, he applied the brakes, which he says, on his truck, were designed to stop in the circumstances suddenly. He says despite his sudden breaking, he just tapped the oversize load that the claimant was carrying with no flags on it.
I therefore agree with the claimant’s submission that the evidence supports at the basis upon which the insured driver knew to slow down was the presence of brake lights visible on vehicles in front of the claimant’s vehicle at the intersection. There is no evidence before me that had the claimant’s brake lights been visible the insured driver would have applied his brakes sooner.
Considering all the evidence, I am not satisfied that the alleged failure to place a flag on the back of the protruding gate was not in fact the cause of the truck making contact with it upon stopping. There is no evidence before me that the insured driver did not see the gate protruding, or indeed that had he seen a flag on the gate he would have applied his brakes earlier. That is, it is not a case of applying the brakes slowly due to a perceived greater stopping distance: the insured’s clear evidence is that he applied the brakes so as to stop his truck “suddenly”.
I also accept the claimant’s submission that when the Personal Injury Commission weighs or assesses competing evidence concerning a particular issue it must bear in mind the extent to which it was in the power of one party to produce and in the power of the other to contradict evidence bearing on the fact in issue. As Gleeson J (when her Honour was sitting in the Federal Court) explained in BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351 at [125], relevantly affirmed on appeal in BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189:
“All evidence ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’: Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. This maxim also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available”.
See also Ho v Powell (2001) 51 NSWLR 572 at 576 [13]-[16] per Hodgson JA (Beazley JA agreeing).
Despite accepting the evidentiary burden in this case and retaining Mr Griffiths, presumably to provide an opinion so as to assist it in doing so, the insurer has not answered these questions, satisfactorily, or at all. Therefore, I am not satisfied that the insurer has discharged its burden and, accordingly, it is not in a position to engage the provisions of s 3.38 of the Act to reduce the payments of statutory benefits.

Costs and Disbursements

I am satisfied that the claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,826 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:
a. For the purposes of s 3.38 of the Act the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident.
b. Effective Date: This determination takes effect on 2 October 2022.
c. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
§the Act;
§Motor Accident Injuries Regulation 2017;
§CL Act, and
§Law Reform (Miscellaneous Provisions) Act 1965 (NSW).

[2022] NSWPIC 757

11 November 2022