Moon v AAI Limited t/as GIO
[2022] NSWPIC 516
•19 September 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Moon v AAI Limited t/as GIO [2022] NSWPIC 516 |
| Claimant: | Ok Soon Moon |
| insurer: | AAI Limited t/as GIO |
| Member: | Terence Stern |
| DATE OF DECISION: | 19 September 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant was a pedestrian on a busy (vehicles and pedestrians) roadway; objective significant risk of presence of pedestrians; collision between pedestrian and vehicle; claimant alleged to have emerged from between two vehicles; insured driver alleged to have failed to keep proper look out; Held – non-minor injuries; claimant not mostly at fault; legal costs; exceptional circumstances. |
| determinations made: | 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs is assessed at $5,500.00 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
Ok Soon Moon (Claimant) was injured in a motor vehicle accident on 2 April 2021 sustaining injuries subsequently agreed as non-minor.
The Claimant was born in June 1959.
On about 8 April 2021 the Claimant made a claim against GIO the CTP Insurer of the vehicle which collided with her.
A dispute has arisen in connection with the claim. The claimant has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
I have had a number of telephone conferences arising from the fact that the driver and the passenger were both charged, and proceedings were commenced in the Hornsby Local Court. It was not possible to obtain a transcript until those proceedings have been completed.
I had the most recent telephone conference on 5 May 2022, when the parties legal representatives agreed that I should decide the dispute on the papers.
LEGISLATIVE BACKGROUND AND INSURER DECISION MAKING
Statutory framework
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act.
Under section 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
However, pursuant to sections 3.11 (relevant to weekly benefits) and 3.28 (relevant to treatment and care benefits), after 26 weeks from the date of the accident, an injured person is not entitled to statutory benefits if the injured person only has minor injuries (within the definition in section 1.6) or if the injured person was wholly or mostly at fault for causing the accident. In this case there is no dispute that the Claimant sustained non-minor injuries.
10.Schedule 2, clauses 3(d), (e) and (n) provide the Commission with jurisdiction to determine whether the motor accident was caused wholly or mostly by the fault of the claimant and therefore whether GIO can terminate her weekly statutory benefits under section 3.11(1) and (2) her and treatment and care statutory benefits under section 3.28(1) and (2).
Other statutory provisions
11.In section 1.4 of the MAI Act:
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Insurer’s decisions with respect to payment of statutory benefits to the Claimant
12.In the liability notice of 15 July 2021, GIO determined that based on the information and a factual report provided by its investigator, Brooksight Investigations, it believed that the Claimant had contributed to the accident and injury by walking out from behind parked cars and failing to keep a lookout for traffic and as such had decided that the Claimant was wholly “at fault”.
13.The Claimant applied to the Insurer for an internal review of its decision and on 16 August 2021 the Insurer confirmed its decision that the Claimant was “wholly or mostly at fault for the subject motor vehicle accident”.
THE EVIDENCE
The Application for Personal Injury Benefits of 8 April 2021
14.In her Application for Personal Injury Benefits dated 8 April 2021 the Claimant gave the following description of the accident:
As I was crossing Rowe Street, Eastwood, motor vehicle registered number WJM 502 collided with [the] right hand side of my body causing me to fall onto the roadway. A bystander mentioned to me following the accident that the driver and the passenger swapped positions and the passenger became the driver.
Claimant’s statement
15.Statement by the Claimant to the Eastwood Police 9 August 2021:
[4] About 9.50 pm on Friday, 2 April 2021 I had purchased ice cream from the Korean Grocery Store which is located on Rowe St, Eastwood. I was by myself. I am about 162 cm in height.
[5]I attempted to walk from the footpath onto Rowe Street. I was planning to cross the road, and walk to the Aldi Store side of Rowe Street. I looked to my right, and did not see any cars coming. I then looked to my left. I did not see any cars coming. I thought it was safe. I stepped onto Rowe Street.
[6]I remember there was a “car” parked to my right on Rowe Street. There was a vacant car space directly in front of me on Rowe Street. This is where I stepped. The car that was parked to my right on Rowe Street I think it was a “dark colour”. I think it was a van type of car. It could have been and “Elgrand” brand type of van.
[7]Once I stepped onto Rowe Street I looked to my right, and did not see any car coming. I looked to my left. All of a sudden I was “hit” on the right foot.
[8]I would have been maybe 30 – 50 cm from the footpath and standing on Rowe Street when I was hit by the moving car on my right foot. I felt my right foot “crack”. It felt like my bones were crushed.
[9]I do not remember what happened after that. I lost consciousness for a short period. I remember there was a young Korean girl trying to help me as a I lay on Rowe Street. This person told me that she called police, and ambulance. My right ankle was really hurting me as I lay on Rowe Street. I remember that I was feeling very “cold” as I lay there.
[11]I remember the Korean girl said to me “The female was the driver. Why is the male saying he is the driver?” She spoke to me in Korean. I do not know her name sorry.
[12]Maybe 5 – 10 minutes later an Ambulance arrived, and took me to Royal North Shore Hospital …
Insured driver’s statement
16.The Insured gave a statement to the Insurer’s investigator Brooksight Investigations (paragraphs 18-22) and I reproduce the relevant paragraphs:
[19](At) about 10:20pm on…2 April 2021…I offered to drive and Mr… was sitting in the front passenger seat…Rowe Street which is the main business street of Eastwood…was busy at this time… with all of the Asian food shops…open.
[20]I recall us turning into Rowe Street and heading east towards our block of Units. Rowe Street travels both east and west and is separated by a concrete garden bed in the centre of the roadway. I recall there was a lot of pedestrian traffic and Asian people mainly Korean people shopping and going to restaurants. The Street was very well lit up at the time and it was fine weather.
[21]I just recall just driving east in Rowe Street towards our Unit at a speed of about 10 to 15 km/h. It was very slow and I always careful in driving in this street as there are always people walking and driving around. I recall seeing an Asian lady to my left hand side wearing black long pants come from between two parked vehicles to my left outside the Eastwood Mart which is on the northern side of the street. I recall it happening very quickly and I instinctively braked very hard. I am not sure if the car came to a stop but I remember the woman hitting the front left of the car. She was on top of us when walking from between the two parked cars.
[22]I recall her not even looking at us with her back turned looking up Rowe Street in the opposite direction to us and she obviously did not see us. She just bumped into the car and bounded back. It was not very hard.
Statement of Ok Soon Moon 9 August 2021 given to Senior Constable Lee Ryan
17.The Insured gave a statement to the Senior Constable Lee Ryan at Eastwood Police Station and I reproduce the relevant paragraphs:
[2]I am 61 years of age.
[4]About 9:50 pm on Friday 2nd April, 2021 I had purchased ice cream from the Korean Grocery Store which is located on Rowe St, Eastwood. I was by myself. I am about 162 cm in height.
[5]I attempted to walk from the foot path onto Rowe St. I was planning to cross the road, and walk to the Aldi store side of the Rowe St. I looked to my right, and did not see any cars coming. I then looked to my left. I did not see any cars coming. I thought it was safe. I stepped onto Rowe St.
[6]I remember there was a "car" parked to my right on Rowe St. There was a vacant car space directly in front of me on Rowe St. This is where I stepped. The car that was parked to my right on Rowe St I think it was "dark colour". I think it was a van type of car. It could have been a "Elgrand" brand type of van.
[7]Once I stepped onto Rowe St I looked to my right, and did not see any car coming. I looked to my left. All of a sudden I was "hit" on the right foot.
[8]I would have been maybe 30-50 cm from the foot path and standing on Rowe St when I was hit by the moving car on my right foot. I felt my right foot "crack". It felt like my bones were crushed.
The Police COPS Report
18.The case narrative discloses that Xiaoye Chen was charged with stating that she was not the driver of the vehicle involved in the collision but that the driver was her friend Oliver Desa.
19.The Police Report continues the…“victim/pedestrian has walked between “two” parked vehicles on Rowe Street. She was captured on CCTV not looking, and then steps in the path of the vehicle.”
20.Chen was charged with hindering the Police investigation as was Desa.
21.Xiaoye Chen was interviewed by the Police relevantly
“Q: when did you first notice a pedestrian on the road?
A: I actually, just at the moment I saw. She walked on the street already.
Q: How far on the road was she before you hit her?
A: She was just over there. She is walking otherside of the road.
Q: Could have you slowed and stopped to avoid the collision?
A: Yeah.
Q: Why did you not?
A: I hit the brake. I tried (sic) to stop the car.Q: Who do you believe is at fault?
A: Hmm, can I be honest? I think it is her fault.
Q: Why do you think she is at fault?
A: Cause she is walking the otherside of the road. Kept walking onto street.Q: Why did you state you were not the driver earlier? A: Because my friend wanted to take the blame for me.”
Report of Grant Johnston consulting engineer of 21 July 2022
22.Mr Johnston states [6.1] that he was supplied with the CCTV footage obtained by a surveillance camera fitted to a nearby commercial premises.
23.Mr Johnston says at:
[6.3]The CCTV footage shows a view looking southeast from the northern footpath of Rowe Street across the roadway. The Injured party can be seen (legs only) to walk out from premises on the northern side of the northern footpath and to cross the footpath and move between two parked vehicles towards the eastbound lane of Rowe Street. The top part of the screen is partly obscured so that the Injured party can only be seen up to the lower part of her head. As she passes between the parked cars it appears that she is looking to her left and she looks to her right as she moves towards the eastbound lane.”
[6.4]The Insured vehicle is just west of her position at this time and based on the Injured party’s body movement it appears that she sees the Insured vehicle and makes an attempt to avoid it by stopping.”
[6.5]The Injured party appears to twist to her left and then appears to fall backwards and she disappears from view behind a parked vehicle. This would indicate her position at the time of the collision.”
[6.6]“The brake lights on the Insured vehicle are illuminated from approximately 0.65 seconds before the collision for approximately 1 second, but they go off shortly after the collision and are then illuminated again approximately 1.5 seconds after the collision until the vehicle comes to rest.”
[6.7]Figure 6.1 shows an enlarged section of frame 120 from the CCTV footage which shows the pedestrian (highlighted with a red ellipse) looking left as she crosses between parked vehicles. The approaching Toyota Camry sedan is also visible.
[6.8]Figure 6.2 shows an enlarged section of frame 124 from the CCTV footage which shows the pedestrian (highlighted with a red ellipse) looking right as she reaches the left side of the eastbound lane. The approaching Toyota Camry sedan is also visible
[6.9]Figure 6.3 shows an enlarged section of frame 125 from the CCTV footage which shows the pedestrian (highlighted with a red ellipse) in a stationary position at the approximate point of impact before the impact. The Toyota Camry sedan can be seen with its brake lights illuminated before the collision.
[6.10]Figure 6.4 shows an enlarged section of frame 127 from the CCTV footage which shows the pedestrian (highlighted with a red ellipse) and the Toyota Camry sedan at the approximate point of impact. The pedestrian is starting to collapse and disappears from view after this frame.
24.Mr Johnston sets out his analysis at paragraph 7.
[7.3]After reviewing the CCTV footage, I observed that the pedestrian walked from the northern footpath of Rowe Street between two parked vehicles. Whilst she was walking between the cars she appeared to be looking to her left, but the top extent of the video did not completely include all of the pedestrian’s head so this was difficult to see completely. However, as the pedestrian reached the right side of the parking area it was clearly obvious that she was looking to her right towards the oncoming Toyota Camry sedan.
[7.4]One specific observation that I made was that the Toyota Camry sedan was being driven very close to the row of parked vehicles so biased towards where the threat of a pedestrian might emerge rather than being biased toward the centre of the roadway where it was unlikely for an unexpected hazard to emerge.
[7.5]In the absence of detailed 3D modelling of the scene and reconstructing the view of the video camera it can only be visually estimated, but it appears that the distance between the left side of the Toyota Camry sedan and the right side of the parked vehicles at the point of impact was probably not much more than approximately 0.5 metres.
[7.6]There was no centre median at the precise position on Rowe Street where this collision occurred so there did not appear to be any reason for the Toyota Camry sedan to be driven so close to the parked cars and the risk of emerging pedestrians noting that the Insured driver states that she was aware of the presence of pedestrians on and around the scene and regularly crossing the roadway.
[7.7]There was a centre median a short distance to the east so the driver would need to ensure the right side of the vehicle was within the central median prior to reaching that point. The eastbound lane measured approximately 3.2 metres in width at that position while the overall width of the Toyota Camry sedan was around 1.78 metres, leaving 1.42 metres of space (which is about 0.71m on each side of the car if driven in the centre of the lane) but it would normally be more prudent to drive closer to the median than the parked cars, so under normal circumstances I would suggest that if the Toyota Camry was driving within half a metre of the median that would just under 1 metre to the edge of the parking lane and given most vehicle are parked within the bounds of the parking lane would give just over a metre to most parked vehicles
[7.8]Given that the vehicle has seemingly only just run over the foot of the injured party if the vehicle was a further half metre (or even less) towards the centre of the roadway then it was likely that impact in this instance everything else remaining constant would have been avoided.
[7.11]In either circumstance however, an underpinning assumption of this type of analysis is that when the object (pedestrian) intrudes into the vehicle’s pathway the driver has an obligation to respond and to initiate any possible avoidance manoeuvre in order to try and avoid impacting with the pedestrian.
[7.12]It must be remembered however equally that a driver cannot be expected to respond to a hazard until that hazard is physically able to be seen by the driver, you cannot respond to what you cannot see, and the driver will not commence to respond until he identifies the object as an immediate hazard, which requires an emergency response. There is then a perception / response process which takes a finite period of time which is an unavoidable human characteristic.
25.Significantly, at [7.18] Mr Johnston analyses CCTV footage and calculated the average speed of the Insured vehicle was about 29 km/h,
26.Mr Johnston set out his conclusions at [7.36]-[7.38]:
[7.36]The Insured driver appears to have responded in a reasonable time by braking only.
[7.37]If the driver also or possibly alternatively swerved right it was likely that impact could have been avoided.
[7.38]The Insured driver stated that she was travelling at only 10 to 15 km/h due to the volume of pedestrians around.
27.He continues:
[7.39] The video suggests that her speed was in fact closer to 30 km/h
[7.40]Whilst this is under the speed limit if the driver was travelling at 10 to 15 km/h as stated and all other things remain constant the incident could have been avoided.
The proceedings in Hornsby Local Court
28.The Full Facts provided to the presiding Magistrate in the Local Court noted that the accused was driving the vehicle at a stated speed of 25 km/h.
29.The Claimant is said to have walked between two parked vehicles with the intention of crossing the road.
30.The victim is said to have looked but not to have seen the vehicle approaching when she stepped out further on to Rowe Street.
31.The Insured vehicle ran over the Claimant’s right foot.
The transcript of Hornsby Local Court
32.Xiaoye Chen pleaded guilty admitting that she was the driver of the vehicle and she pleaded guilty to hindering a Police investigation or the execution of a Police duty. The Magistrate dealt with Ms Chen under section 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
SUBMISSIONS
Claimant’s submissions
33.I briefly summarise the Claimant’s initial submissions of 22 September 2021, I reference to paragraph numbers:
[17] Very busy pedestrian street.
[18] Insured driver refers to:
·Rowe Street is the main business street;
·Rowe Street was busy at this time;
·A lot of pedestrian traffic;
·Always people walking and driving around.
[19]Insured driver could hardly have been on a higher level of awareness of the danger of collision with a pedestrian.
[20]Very well-lit in fine weather.
[21]She was on top of us when walking from between the two parked cars.
[22]Necessary conclusion that the driver did not see the Claimant at any earlier time.
[23]Driver failed to keep a proper look out.
[24]Had the driver been travelling at only 10-15 km/h the collision would not have occurred.
[26]Claimant adamant that she looked right and left before crossing.
[27]Submits that appropriate apportionment is 30%-40% against the Claimant.
Insurer’s submissions 14 September 2021
34.The submissions set out the background [1] and then the accounts of the accident [2] as in [3] makes submissions as to fault.
[3.3]The accounts of the Insured driver and the passenger as well as the description of the CCTV footage and the statement from the independent witness Mr Li clearly establish that the claimant was not keeping a proper lookout. Specifically, the evidence establishes that the claimant did not check for oncoming traffic to her right when she began to cross Rowe Street.
[3.4]Inconsistency from the statement evidence means that I should treat the Claimant’s evidence with caution.
[3.5]Assertion that that the insured driver should have been able to see the Claimant cannot be accepted given that the Claimant conceded she crossed the road between two parked cars.
[3.6]Refers to Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34.
[3.7]Submits that I should be satisfied that the Claimant was mostly at fault because she:
(a) Failed to keep a proper lookout;
(b) Failed to give way to the oncoming insured vehicle
(c) Walked into its path;
(d) Failed to take evasive action;
(e) Failed to avoid injury;
(f) Failed to take any reasonable care.
Further submissions of the Insurer 24 August 2022
35.I briefly summarise the further submissions of the Insurer:
[1.2] Refers to the further evidence a) to d).
[2.1]Ms Chen not charged with driving negligently but only failing to disclose she was the driver.
[2.2]Refers to the statement of Mr Ted Li in the Police Documents [pg. 93 of the Insurer’s Reply bundle]. That statement records the following (AD6, pg. 7):
“[redacted]
2. I am 26 years old.
3. On the 2/4/21 I was in Eastwood doing grocery shopping leisurely [sic].
4. At approximately 1800 I saw a woman asian in her 60's cross the pedestrian crossing without looking on Rowe St.
5. The lady's foot got ran over by a Toyota Camry.
6. The driver of the vehicle was a brown skinned middle aged man. 7. The women at the pedestrian fell to the ground and the male driver pull over.
8. Police and emergency services were called to the area and I left the area.”
[2.3]The Police case narrative goes on to determine that the claimant was at fault.
[2.4]The CCTV footage [AD3], shows that at 12 seconds, the claimant is seen at the top left of the screen, indicated by the red circle, about to leave the kerb to cross Rowe Street.
[2.5]The next frame indicated by the circle shows the Claimant proceeding to cross the road and she is clearly is looking to her left, that is in the opposing direction to the incoming traffic. It is not until about 14-15 seconds that she suddenly looks to her right, just prior to the collision with the insured vehicle, at 15-16 seconds.
[2.7]The footage depicts that the Claimant only looks to her right some 2-3 seconds after she had commenced crossing the road, and only a split second before impact.
[2.8]At 2.8 the submission continues that the CCTV footage refutes the Claimant’s prior evidence as to the circumstances of the accident where she suggests she had only just left the kerb of the footpath when she was struck by the insured vehicle.
[2.9]Insurer submits that in light of what is depicted in the CCTV footage, no reliance can be placed on the Claimant’s evidence referred to at 2.8(a) and (b).
[2.10]The Submission continues that the Claimant’s failure to look to her right and keep a proper lookout falls drastically short of the standard of care of a reasonable person. The Submission refers to a similar determination made by Member Cassidy AKE v AAI Limited trading as GIO (Claims Assessment) [2020] NSWSIRADRS 59 and Member McTegg in AKZ v NRMA Insurance Limited (Claims Assessment) [2020] NSWSIRADRS 81.
[3.1]GIO submits that I should find no fault on the part of the Insured driver, or in the alternative, if there is fault this would be far outweighed by the fault of the Claimant.
[3.2]With respect to the opinion of Mr Johnston that the Insured vehicle had been driven very close to the row of parked vehicles if flawed [3.3] because the angle of the CCTV footage is such that no reasonable conclusion can be drawn as to the distance between the insured vehicle and the parked vehicles.
[3.5]Further, GIO submits that the Insured driver driving in a manner “biased” towards the parked cars as opposed to the centre of the roadway does not in and of itself sound in any fault on the part of the insured driver. The claimant crossed the roadway at a section where there was no allocated pedestrian crossing. GIO relies on Derrick v Cheung [ 2001] HCA 48 and Knight v Maclean [2002] NSWCA 314 in that a reasonably prudent driver in the position of the insured driver would not have anticipated that pedestrians would suddenly emerge from behind the parked cars.
[3.6]As to Mr Johnston’s conclusion that the accident could have been avoided had the insured driver swerved to the right as well as having applied the brakes, GIO relies on Stuart v Walsh [2012] NSWCA 186 at 63-65. The Claimant having emerged on to the roadway between two parked cars, the Insured driver’s reaction to brake only as opposed to swerving was commensurate with the actions of a reasonably prudent driver, and no fault can be attributed to the insured driver in this respect.
[3.7]GIO submits that there is no evidence that the driver was driving at an excessive or unsafe speed and submits it is also apparent that the Insured driver was keeping a proper lookout for pedestrians. The CCTV footage shows the brake lights being activated at 14-15 seconds.
LEGISLATION
36.In making my decision I have considered the following legislation and guidelines:
·MAI Act
·Motor Accident Injuries Regulation 2017 (‘MAIR’)
·Civil Liability Act 2002
37.Section 3.11(2) of the MAI Act provides:
“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%.”
CASE LAW AND LEGAL PRINCIPLES
38.I am required to determine whether or not the Claimant was mostly at fault.
39.The common law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
40.Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
41.Section 5R of the Civil Liability Act 2002 provides:
‘5R Standard of contributory negligence
(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’
42.In Cooper v. Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:
‘……an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.’
43.At 34 His Honour referred to the judgment of the High Court of Australia in Podrebersek v. Australian Iron and Steel Pty Ltd [1985] HCA 34:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man……and the relative importance of the acts of the parties in causing the damage…….it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’
44.In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
‘[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ……
[117] …..the High Court held in Sibley v Kais [1967] HCA 43……that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 the court said:
‘The common law duty to act reasonably in all the circumstances if paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.’
45.His Honour continued:
‘[35] The exercise of reasonable care requires, as the
majority observed in Manley v. Alexander …..reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36]The driver is not required……to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event……the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] ….nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path…..
CONSIDERATION
46.The evidence demonstrates that the Claimant failed to keep a proper lookout. Had she looked to the right before she stepped out between the two cars and on to the carriage way of Rowe Street, she would most likely not have been injured.
47.By the same token, had the driver of the Insured vehicle been driving at a reasonable speed of between 10-15km/h given that objectively this was a busy street with many pedestrians and vehicles and had the driver also been keeping a proper lookout, this accident would not have happened.
48.I accept the conclusion of Mr Johnston whose analysis is careful and well-reasoned that the speed most likely was closer to 30 km/h.
49.I note that in the Full Facts tendered at the Hornsby Local Court on the driver’s plea of guilty the vehicle’s speed is stated at 25 km/h (see [25] above).
50.The Insurer submits that the evidence of the Claimant is not to be accepted. I note, however, it was not the Claimant who attempted to mislead the Police but rather the driver, and if anybody’s evidence should be treated with caution it is that of the driver.
51.As submitted on behalf of the Claimant, the driver should have been well aware that Rowe Street Eastwood is a busy shopping precinct, and this was the night before the Easter holiday. The driver should have been keeping a lookout for pedestrians, including pedestrians who might emerge from between parked vehicles.
52.Further, on the balance of probabilities, the Insured vehicle was, as opined by Mr Johnston, travelling too close to the parked vehicles.
53.Sdrolias v Allianz Australia Insurance Limited [2022] NSWCA 20 sets out the considerations on which a finding ought to be made on the balance of probabilities.
54.In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
55.McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
56.Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
57.Having taken into account the process of reasoning described in Sdrolios, I do not consider the Claimant was wholly at fault in causing this accident, nor was she mostly at fault in the technical sense. I am not required to determine the precise apportionment of fault but I consider that it was well under 61% and probably less than 50%.
LEGAL COSTS AND DISBURSEMENTS
58.Both parties have made submissions as to whether or not exceptional circumstances apply.
Claimant’s Further Submissions
59.I briefly summarise the Submissions of the Claimant of 8 September 2022:
[19]The Claimant submits that it was entirely appropriate for an expert liability report to be qualified and an exceptional costs order should be made of which includes the cost of the report of Grant Johnston.
Claimant’s Submissions on costs
60.I briefly summarise the Submissions of the Claimant of 13 September 2022:
[1]The Claimant requests an exceptional costs order be granted and to include the report of Grant Johnston on the basis that his report was necessary given the Insurer’s denial of liability and the severity of her injuries.
[2]The Submission argues the fees for accident investigator’s reports are not regulated pursuant to Part 2, Division 1, clause 4 of the MAI Regulations.
[3]The Submission continues that the Claimant continues to suffer from serious disabilities because of the injuries sustained in the motor vehicle accident.
[4]The Submission further argues that a substantial amount of work has been undertaken including reviewing CCTV footage, local court transcripts and the drafting of submissions in support of the claimants claim.
Insurer’s Submissions on costs
61.I briefly summarise the Submissions of the Insurer of 14 September 2022:
Report of Mr Grant Johnston
[1.3]Insurer submits the amount claimed for Mr Johnston’s report is unclear from the Claimant’s submissions as there are references to an amount of $2,200 including GST and $2,556 for “discount/prepayment”.
[1.4]Insurer proceeds that in the event I allow an amount for Mr Johnston’s report, it should be for the amount of $2,200.
[1.5]Refers to Schedule 1, Part 1, Clause 2(1) of the Regulations and section 8.10(1) of the MAI Act.
[1.8]The Insurer maintains its position that the report of Mr Johnston was neither reasonable or necessary and should not be allowed.
Exceptional circumstances
[1.9]Insurer submits there is no evidence of any unusual or complex factual or legal issues and as a result no basis on which costs and disbursement should be incurred in exceptional circumstances.
[1.10]Claimant has not outlined circumstances which are unusual or out of the ordinary, citing San v Rumble (No 2) [2007] NSWCA 259.
[1.12]The submission continues that the “denial of liability” and severity of the Claimant’s injuries are irrelevant as to the need to obtain an expert opinion report.
[1.13]Submits drafting submissions and reviewing CCTV footage is not “substantial work” and is nothing out of the ordinary in determining a dispute as to fault.
[1.15]Refers to the transcript of criminal proceedings which did not go to any material fact in issue in respect of the fault dispute.
[1.16]Continues the Claimant’s position was also that the criminal proceedings did not go to any fact in issue and refers to the Claimant’s submission of 24 August 2021 at [15]-[16].
[1.17]Submission continues that either way the review of the transcript of criminal proceedings and Police GIPA documents is not unusual in miscellaneous fault disputes and was not lengthy work undertaken.
CONSIDERATION OF LEGAL COSTS
62.There is a Claim for legal costs in the circumstances which are said to be exceptional.
63.The 2017 Act states:
“8.3 Regulations fixing maximum costs etc recoverable by Australian legal practitioners
(3) An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.’
‘8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—’(a) the claimant is under a legal disability, or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.’”
64.The Application for legal costs has been made on the basis that there have been “exceptional circumstances” and an award of additional legal costs is justified in the circumstances.
65.In Masters & Cheyne [2016] FamCFC 255 at [42] Murphy J said:
“Exceptional circumstances has... been interpreted... in... different contexts [citation omitted] in ordinary usage... “exceptional” means “unusual or out of the ordinary” [citation omitted] or “unusual or extraordinary” [citation omitted]...
We must construe “exceptional” as an ordinary English adjective and not as a term of art. It describes the circumstance which is such is to form an exception, which is out of the ordinary course, or is unusual, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that it is regularly, or routinely, or normally encountered [citation omitted].
As Watts J pointed out the Full Court...applied that statement.”
66.The Family Court of Australia more recently followed the articulation of the meaning of the phrase “exceptional circumstances” in Martyn & Martyn [2020] FamCA 526.
67.In a more recent discussion in the High Court of Australia in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Gageler, Keane and Nettle JJ considered the phrase “exceptional circumstances” in section 473DC of the Migration Act. At 229 [30] their honours said:
“Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
68.In another case BVZ16 v Minister for Immigration and Border Protection[2017] FCA 958 White J discussed considerations that the Authority had to take into account when determining whether it was satisfied that “exceptional circumstances” exist at [41]:
“Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]‑[26] (Rares J); Hasim v Attorney‑General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).”
69.Whether or not the facts of this case give rise to “exceptional circumstances” is in contest and if so, the appropriate legal costs are also in contest.
70.AAI Ltd trading as GIO v Moon[2020] NSWSC 714 (a decision of Wright J) also involved a Miscellaneous Dispute decision as to whether the accident was caused wholly or mostly by the fault of the Claimant. In that case, the DRS Assessor found that in the particular circumstances of the case the claimant should be permitted to recover the reasonable and necessary legal costs incurred by him in respect of the dispute beyond those permitted in the Regulation.
71.Wright J said at [99] that other cases could be envisaged that were exceptional because they involved an unusual degree of factual or legal complexity or for some other reason and this required the incurring of more substantial legal costs via the claimant and it was consistent with the objects of the Act to permit the amount of legal costs recoverable in such exceptional cases to exceed the amount fixed by Regulation where that was reasonably required to prevent injustice, hardship or other relevant adverse consequences.
72.Wright J continued [103] that the legal costs that a Claimant for statutory benefits was entitled to recover and be paid under s 8.10 were the “reasonable and necessary” legal costs “incurred by the claimant” in connection with the Claim.
73.Further [105], whether legal costs were reasonable and necessary was a matter that depended on the circumstances of each case.
74.Legal costs are incurred within the context of s 8.10 when the Claimant has become liable to pay costs for legal services.
75.Further, at [111] where the Claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment the relevant costs have been “incurred:
76.Were there “exceptional circumstances”?
i.The versions of the facts provided by the Claimant and the driver are starkly different and give rise to issues of credibility.
ii.The driver swapped with her passenger and represented that the passenger was the driver. She maintained this version for some time but eventually pleaded guilty in the Hornsby Local Court [see paragraph 32 above].
iii.There was available, however, CCTV footage from the exterior of one of the nearby commercial premises and the footage captured the event.
iv.I was provided with the footage and looked at it several times but it was not possible for me to determine exactly what happened just from viewing the footage, let alone to determine what probably happened.
v.The Claimant’s solicitor obviously came to the same conclusion and engaged a traffic reconstruction expert Grant Johnston who provided a lengthy report having viewed the footage frame by frame.
vi.As a result of the work of Mr Johnston, he was able to indicate by a red circle exactly where the Claimant was in each relevant frame.
vii.He provided a very detailed report of his analysis of the whole of the CCTV footage.
viii.As a result of that analysis he was able to come to a view of how the accident happened, the speed of the vehicle, and how close the vehicle was travelling to the parked cars.
ix.I found Mr Johnston’s analysis and report very helpful and having considered it carefully I was able to come to a view on the balance of probabilities as to the apportionment of fault, at least in general terms (noting that I did not consider it necessary or my role to determine the precise degree of fault).
77.All of these facts taken together I considered to give rise to exceptional circumstances, and this was a case where s 8.10(4) applied.
78.I accept that there was no Assessment Conference, but this is only one of the factors to be taken into account in consideration of whether or not there were exceptional circumstances.
79.The fact that the Claimant’s solicitor qualified an expert traffic reconstruction analysis is only one of the factors. It was however a significant factor because without it would have been very difficult to come to a view as to what the footage demonstrated on the balance of probabilities.
80.I note that there has been no detailed bill submitted by the Claimant’s solicitor, but I do not consider that prevents me from assessing the fair and reasonable costs and making an award for lump sum costs (and the expert’s fee) at an appropriate hourly rate.
81.I note that the maximum costs pursuant to Schedule 1 Clause 3(1) of the Regulation is 16 monetary units giving $1,710.00 plus GST.
82.I assess the fair and reasonable global costs (including disbursements) as follows:
i.Profit costs at 10 hours at $300.00 per hour excluding GST giving an amount of $3,300.00.
83.In assessing this amount, I have taken into account that the Claimant did the following work which globally justifies in excess of the 10 hours I have assessed:
i.Read and considered the Claimant’s statement of 9 August 2021;
ii.Read and considered the Insured driver’s statement;
iii.Read and considered the statement of the Claimant given to Senior Constable Ryan;
iv.Read and considered the documents with respect to the Plea of guilty in the Hornsby Local Court;
v.Viewed and considered the CCTV footage;
vi.Qualified Grant Johnston consulting engineer for his report of 21 July 2022;
vii.Read the report;
viii.Prepared the submissions which I have reviewed and summarised;
ix.Considered the submissions made by the Insurer including the further submissions and the submissions on costs.
84.I consider that on my experience as a Costs Assessor and Review Panellist, 10 hours at $300.00 per hour excluding GST is a very conservative amount and is justified by the work caused by exceptional circumstances to which is incidental to the work to which I have referred above.
85.In addition, I consider the report fees of Mr Johnston at $2,200.00 are fair and reasonable.
86.Total costs and disbursements are $5,500.00 ($3,300.00 + $2,200.00).
DETERMINATION
87.My determination of the Miscellaneous Claims Dispute is that this accident was not caused mostly or wholly by the fault of the Claimant for the purposes of sections 3.11 and 3.2A of the MAI Act.
88.The amount of the Claimant’s legal costs assessed in accordance with s 8.10(4) is $5,500.00.
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