Murphy v QBE Insurance (Australia) Limited
[2022] NSWPIC 183
•29 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Murphy v QBE Insurance (Australia) Limited [2022] NSWPIC 183 |
| CLAIMANT: | Ryan Murphy |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 29 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant; section 3.28 of the Motor Accident Injuries Act 2017; where claimant’s vehicle struck in the rear by police vehicle at speed under flashing lights and siren en route to emergency; where claimant had commenced changing lanes at the time of the collision; whether driver of police vehicle took reasonable care; social utility of police vehicle attending emergency; whether the claimant failed to give way to emergency police vehicle; sections 5B, 5C and 5R of the Civil Liability Act2002; Road Rules 79 and 305 of NSW Road Rules 2014; finding of contributory negligence on the part of the claimant assessed at 50%; Held– claimant not mostly at fault. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the claimant. 2. The effective date of this decision is 25 January 2020. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clause (3)(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Ryan Murphy, seeks a review of the insurer’s decision made under section 3.28 of the MAI Act to the effect that the claimant was wholly or mostly at fault for the motor accident.
BACKGROUND
The claimant is a 41-year-old man who suffered injuries in a motor accident on 25 July 2019 when the insured NSW Police Force vehicle collided with the rear of his vehicle on the Princes Highway, Kirrawee, near Bath Road.
On 25 November 2020, the claimant made an application for payment of statutory benefits. Specifically, he sought payment of benefits for treatment and care.
On 21 January 2021, the insurer notified the claimant that it declined liability for payment of those benefits after 26 weeks from the date of the accident on the basis that he was wholly or mostly at fault for the accident.
On 27 January 2021, the claimant sought an internal review of the insurer’s decision. On 18 February 2021, the insurer issued a determination, affirming its original decision.
On 7 May 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The proceedings are now before me for determination.
DOCUMENTS CONSIDERED
In making my determination, I have considered all documents provided by the parties to the Commission, which includes:
(a)the Application for Personal Injury Benefits dated 25 November 2020;
(b)the NSW Police Report dated 15 December 2020;
(c)the Liability Notice for Benefits after 26 weeks dated 21 January 2021;
(d)the claimant’s application for internal review dated 27 January 2021;
(e)the report of Brooksight Investigations dated 2 February 2021, which included a statement from the claimant, dated 24 December 2020 and a transcript of a telephone interview with Senior Constable (SC) Adam Cornish on 19 January 2021;
(f)the documents produced by the NSW Police Force pursuant to a Direction for Production, which included the police notebook statement of the claimant, the Body Worn Video (BWV) of SC Cornish capturing SC Narelle Murray’s breath test, the BWV of SC Cornish’s interview with the claimant, the statement of SC Murray dated 20 August 2019, various coloured photographs of the two vehicles involved in the motor accident and the COPS Event Reports dated 27 September 2019 and 19 October 2019;
(g)a street map from the claimant entitled “Supporting evidence refuting culpability”, depicting the location and the two vehicles involved in the motor accident;
(h)a series of seven photographs of the area surrounding the site of the motor accident, taken by the claimant on 18 August 2019, which included a depiction of the construction barriers on Princes Highway in the vicinity of Bath Road and Princes Highway;
(i)a one-page document from the claimant entitled “Sequence of events.”;
(j)a photograph of the damaged police vehicle taken by the claimant near the scene of the motor accident, and
(k)the claimant’s ‘drive through’ video along Princes Highway capturing a path of travel north on Prices Highway towards Bath Road on 18 August 2019.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
·the MAI Act;
·Motor Accident Injuries Regulation 2017 (the Regulation);
·the Motor Accident Guidelines, Version 8 (the Guidelines);
Civil Liability Act 2002, and
·Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts are uncontroversial:
(a)The accident occurred on 25 July 2019 at about 2.10pm on the Princes Highway, Kirrawee at a point between the intersection with Bath Road, on the left, and with the intersection with the Kingsway further ahead on the right.
(b)The weather was fine, and the road surface was dry.
(c)At the location of the accident and as at the date of the accident, there were five northbound traffic lanes along Princes Highway. Three were general traffic lanes to continue travel northbound towards Sylvania. The other two were right turn lanes for travel eastbound into the Kingsway.
The claimant’s evidence
The claimant has described the circumstances of the motor accident on several occasions.
In his application for personal injury benefits dated 25 November 2020, the claimant described the circumstances of the accident in the following terms:
“I entered the Princes Highway from Bath Road Kirrawee (heading north) and was impacted in the rear of my vehicle.”
On the day of the accident, the claimant was interviewed near the scene of the accident in a slip road, by SC Cornish. The interview was recorded on SC Cornish’s BWV which I have viewed.
The BWV interview is largely reproduced in SC Cornish’s police notebook.
The evidence given by the claimant in that interview may be relevantly summarised as follows:
(a)When he was about to turn onto the Princes Highway, there was a car in the right turn lane to the Kingsway but he had three full lanes clear.
(b)He just pulled out onto the highway and did not see the police car with lights on until he was onto the highway.
(c)He turned into the middle lane (of 3), then came over to the right lane (lane 3 of 5), as he was going to turn right into the Kingsway.
(d)At the time of impact, he was doing 40 maybe 50km/h.
(e)He is pretty sure that he had already made his merge into the lane he was in. He was in the middle lane (lane 3 of 5).
(f)When he merged, he looked into the right-side mirror to change into the right lane (lane 3 of 5) and the impact was right after that.
(g)He saw the police car in his right-side mirror as he merged, but did not see it before that.
(h)When asked by SC Cornish: “Was its blue and red lights on?”, the claimant replied: “I did not recall. I saw them after, on but it was that quick.”
(i)When asked by SC Cornish: “Was the siren on, do you recall?”, the claimant replied: “I can’t recall mate.”
The claimant was interviewed by Trent Southworth of Brooksight Investigations on 2 February 2021 at the request of the insurer. The claimant’s evidence in that interview may be relevantly summarised as follows:
(a)The speed limit is normally 80km/h on the Princes Highway but at the time of the accident there was a construction zone speed limit of 60km/h.
(b)When he reached the Give Way sign at the intersection of Bath Road and the Princes Highway, he came to a complete stop for about 10 seconds.
(c)There were construction barriers along the road shoulder looking south on the Princes Highway from Bath Road.
(d)He observed four to five cars go past him northbound on the Princes Highway before he made his left turn with his left indicator on.
(e)He did not hear a siren when he was waiting to make a left turn on the Princes Highway from Bath Road and did not see any Police car coming north.
(f)When the road was totally clear, he moved out and made his left turn into lane 2 of 3 of the Princes Highway.
(g)He intended to make a right turn into the Kingsway so he had to eventually get over the three northbound lanes into the right turn lane into the Kingsway.
(h)He did not hear any siren until he was already on the highway and travelling away from Bath Road.
(i)He had just passed the exit driveway of the 7 Eleven Service Station at about 30 to 40 metres further down the Princes Highway, when he was hit from behind by the police car.
The claimant gave oral evidence at the assessment conference on 10 March 2022. His evidence may be relevantly summarised as follows:
(a)His vehicle was the first vehicle stopped at the intersection of Bath Road waiting to turn left on the Princes Highway.
(b)His vehicle came to a complete stop. He looked right and waited for a couple of cars to pass and then he entered the highway.
(c)Looking to his right onto the Princes Highway at the intersection of Bath Road, his line of sight was as per the photograph showing the barriers on the construction zone. These barriers obscured two of the lanes of the highway and that made vision a little worse for him. There was also a lot of construction noise at that time with a pile driver operating.
(d)The claimant estimated that his line of vision looking right, was roughly about 20 metres.
(e)He proceeded into the second lane of the highway.
(f)When he was in the second lane he had his right blinker activated to go into the third lane.
(g)When he was either in the third lane or halfway into that lane, he saw the police car in his right-side mirror.
(h)When he saw the police car, he decided to stay in the lane he was in. His vehicle was then impacted by the police vehicle.
(i)When he came to a stop, there were a lot of cars coming through on the highway. He drove his vehicle to a slip lane to avoid causing other accidents and waited there for the police.
The insured driver’s evidence
Senior Constable Narelle Murray (SC Murray) was the driver of the insured vehicle. Her duty partner, Constable Justin Poore was travelling with her as a front-seat passenger.
SC Murray provided a statement to the NSW Police Force on 20 August 2019. She gave oral evidence at the assessment conference on 22 February 2022.
21.In her statement, SC Murray described the circumstances of the accident as follows: “ …
4. At about 3.10pm … Constable Poore and I were travelling north on the Princes Highway, Kirrawee we were responding to an urgent job we had copied for Florida Street, Sylvania I was driving under lights and sirens in lane 3 of 5. As we approached Bath Road, Kirrawee a vehicle being a red Nissan Pathfinder with NSW registration plates DAL02X has pulled onto the Princes Highway into lane 1 of 5, then it continued into lane 2 of 5 making its way into lane 3 of 5. At this time I was travelling at an approximate speed of between 80km/h to 90km/h when I became aware of the vehicle entering my lane, I have attempted to brake and ensure control of the vehicle, in an attempt to avoid a collision. The traffic was moderate with vehicles in all 5 lanes travelling behind SU19. However, the driver’s actions of the Nissan Pathfinder caused a collision with SU19 to the left front, this resulted with SU19 impacting with the rear offside of the Nissan Pathfinder.
…”
SC Murray’s oral evidence may be relevantly summarised as follows:
(a)She conceded that the accident occurred at about 2.10pm rather than 3.10pm. She explained that her watch might still have been on daylight saving mode when she made her statement on 20 August 2019.
(b)In responding to the emergency job in Sylvania, the siren and flashing lights of her vehicle were activated when she left Sutherland Police Station. The emergency was that a person had fallen down in their home.
(c)After she went through a set of lights at the Oak Road intersection, she started to accelerate and the other cars dropped behind. She moved to lane 3. The road ahead of her was clear and she got to about 70 to 80 km/h.
(d)When she accelerated to that speed, SC Murray believed that it was a 70k/h zone anyway.
(e)She first saw the claimant’s vehicle as it was coming out of Bath Road to her left. She saw it moving into lane 1 and she thought that maybe it would stay in lane 1 but she saw that it kept coming into lane 2. By the time she realised that the vehicle was continuing into lane 3, she tried to grab the steering wheel as tight as she could and braked.
(f)She said that she knew there were other vehicles behind her. She was worried that once the collision happened, she was going to spin out because of the angle.
(g)As soon as there was an impact, the airbags went off. All other vehicles had stopped behind them.
(h)She estimates it was about 30-40 seconds when she first saw the claimant’s vehicle coming out of Bath Road to the time of impact.
(i)SC Murray cannot remember whether prior to impact any vehicles were coming through in lane 2 or taking the turning lanes 4 and 5. She cannot remember if she quickly glanced or not but she knew there were cars behind her. She was concerned about those cars running into the back of her. There was a lot going through her mind.
(j)SC Murray said she was thinking about the vehicles behind her and if they had been too close behind there would have been a bigger collision and there might have been a lot of cars running into each other.
(k)She said that she would not have had the time to go into either lane 2 or lane 4 because she thought that the claimant’s vehicle would have stopped in lane 2.
(l)SC Murray cannot remember whether the claimant’s vehicle was facing straight ahead when it got to lane 3 because she could not see in front of her after impact as the airbags had deployed, but she never left lane 3.
(m)SC Murray said that after the accident (but before she could see the position of the claimant on the roadway after impact), the claimant had moved his vehicle off the roadway.
(n)SC Murray does not believe she was interviewed by SC Cornish about the circumstances of the accident at the scene. She said that she would have gone to hospital soon afterwards. However, she recalls that SC Cornish carried out a breath test.
(o)SC Murray said that Constable Poore is no longer with the NSW Police Force. She believes that he is on leave and cannot say whether he has resigned from his position or not.
The NSW Police Force
In the NSW Police Report dated 19 October 2019, the crash summary details of the motor accident are recorded as follows:
“About 2:09pm 25th March 2019 veh 1 turned left out of Bath Road onto Princes Highway, Kirrawee. veh 1 Nissan Pathfinder has merged into lane 3/3 where vehicle 2. Marked NSW Police vehicle, ford ranger lights and sirens on, were [sic] travelling in lane 3/3 has hit rear of vehicle 1.”
THE INSURER’S SUBMISSIONS
The insurer made written submissions to the Commission on 26 April 2021 and made oral submissions at the assessment conference.
The insurer’s submissions may be summarised as follows:
(a)The claimant was wholly or mostly at fault for the accident because he drove into the path of the insured vehicle.
(b)The claimant failed to give way to an emergency vehicle in contravention of Road Rule 79.
(c)The police vehicle had activated its lights and siren from Sutherland Police Station to attend to the emergency that was on foot. There is no question that SC Murray was travelling at speed of 70 or 80 or 90km/h but the law is clear. She was attending an emergency and vehicles have to give way to police and other emergency vehicles attending such emergencies.
(d)In this instance, the claimant did not see or hear the approaching police vehicle. The insurer accepts that the claimant is not the sort of person who would go out of his way to have an accident, and he obviously is a responsible member of the community, but sometimes accidents happen and this one such instance here.
(e)The issue here is whether the accident was mostly or wholly the claimant’s fault. All the objective evidence points to the fact that the police vehicle had activated lights and siren, was travelling in lane 3 (the middle lane of 5). SC Murray’s evidence is that when she approached the area, other vehicles were doing what they should, keeping out of the way, and this was what the claimant should have done in the circumstances.
(f)SC Murray’s evidence is that there were vehicles to her side and therefore she could not change lanes. She could not take the risk of going into another lane and have an accident with another vehicle. The insurer submits that this is an agony of the moment.
(g)The claimant entered the highway from a Give Way sign onto the highway when it was objectively unsafe to do. The onus on a driver is a very high one because of the risk involved in an accident. The question is what a reasonable person in the claimant’s position could or should have done in the circumstances.
CONSIDERATION
The relevant legislation and legal principles
Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits payments for treatment expenses from the insurer for a period of 26 weeks.
At the end of that period, in reliance on section 3.28 of the MAI Act, the insurer ceased paying those benefits.
Section 3.28 (1)(a) of the MAI Act provides an injured person is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
Section 3.28 (2) provides that 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 was greater than 61%.
In this case, the insurer’s decision was made pursuant to section 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In section 5 of the Civil Liability Act 2002 (Civil Liability Act), negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to section 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, section 5B(1) of the Civil Liability Act provides that a person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, and (d) the social utility of the activity that creates the risk of harm.
In assessing contributory negligence for the purpose of section 3.28(2) of the MAI Act, I have to consider section 5R of the Civil Liability Act.
Section 5R (1) provides that the principles applicable for determining negligence 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.
Section 5R (2) goes on to provide that the standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time.
The Road Rules
Rule 79 (1) of the Road Rules relevantly provides a driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
For this purpose of this rule, “give way” means: (a) if the driver is stopped—remain stationary until it is safe to proceed, or (b) in any other case—slow down and, if necessary, stop to avoid a collision.
Rule 305(1) of the Road Rules relevantly provides that a provision of these rules does not apply to the driver of a police vehicle if: (a) in the circumstances, the driver is taking reasonable care, and it is reasonable that the provision should not apply, and (b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.
Turning from Bath Road
The claimant said that he was the first vehicle that was stopped at the intersection of Bath Road waiting to turn left on the Princes Highway. His vehicle came to a complete stop. He then looked right and waiting for some cars to pass. When all three general traffic lanes were clear, he turned left with his left indicator on and proceeded to lane 2. I accept this evidence.
In making this manoeuvre, the claimant said that the barriers to his right in the construction zone along the shoulder of Princes Highway near Bath Road made it a little worse for him.
I consider that the claimant completed this manoeuvre in a manner that any reasonable driver would. After coming to a complete stop, he waited for traffic to clear in all three lanes and then made his left hand turn with his left indicator on.
There was some inconsistency in the claimant’s evidence in recalling the number of vehicles that went past before he made his left hand turn onto the Princes Highway. In oral evidence, he said that there were two cars that went past. In his interview with the insurer’s investigator, he said that he saw four to five cars go past. In his interview with SC Cornish, he said that there was one car in one of the right turn lanes as he made his left-hand turn.
In my view, these inconsistencies do not detract from the fact that he completed his left-hand turn in a safe manner after waiting for traffic to clear before he made the turn.
The claimant’s evidence to SC Cornish was when he pulled onto the Princes Highway from Bath Road, he did not see the police vehicle. He had all three (general traffic) lanes clear. He said that he did not see the (flashing) lights until he was on the highway after the impact. When asked whether he recalled hearing a siren, the claimant said he could not.
When interviewed by the insurer’s investigator, the claimant said he did not hear a siren when he was waiting to make his left-hand turn. He heard it when he was already on the highway.
I have already made a finding that the claimant made his left-hand turn onto the Princes Highway when the roadway was clear. It follows that the police vehicle was not in the claimant’s vision on the roadway when he made the turn. On the same basis, it follows that he would not have seen any flashing lights. I accept his evidence in that regard.
If the police vehicle was not within his vision and therefore at a distance further back on the Princes Highway, it is plausible that the claimant would not have heard its siren because of the noise coming from the construction zone.
I find that the claimant was taking reasonable care when he made his left-hand turn manoeuvre onto the Princes Highway and that he completed his turn in a safe manner into lane 2.
Moving from lane 2 to lane 3
Driving in lane 2, the claimant said that he had just passed the exit driveway of the 7 Eleven Service Station and was about 30 to 40 metres further down the Princes Highway when he commenced to move into lane 3. He had his right indicator on to proceed to lane 3 (or the middle lane of 5). I accept this evidence.
The claimant said that he saw the police vehicle in his right-side mirror when he was either fully merged into lane 3 or halfway into that lane. When he saw the police vehicle, he decided to stay in “the lane he was in”. His vehicle was then impacted by the police vehicle in the rear.
From the various photographs in evidence, there is no controversy that the damage to the police vehicle was to the front left side and the damage to the claimant’s vehicle was to the rear right side. That evidence suggests that the impact occurred while the claimant’s vehicle was halfway into lane 3. It is also consistent with the claimant’s evidence that he might only have been half way into lane 3 at the time of impact.
SC Murray’s evidence was that her police vehicle had been travelling in lane 3 since she left the set of traffic lights at Oak Road until the point of impact. She said she never left lane 3.
The question that arises is whether the claimant drove into the path of the police vehicle when merging from lane 2 to lane 3.
SC Murray said that after she travelled through the set of lights at Oak Road, she was in lane 3 and started to accelerate north on the Princes Highway in the direction of Bath Road. Her evidence suggests that her speed was between 70km to 90km/hr. She believed that, at the time, the speed limit was 70km/h.
I infer that the police vehicle would have been travelling at a speed of about 80km/h as SC Murray approached the intersection with Bath Road.
Travelling at that speed, SC Murray saw the claimant’s vehicle coming out of Bath Road. She then saw it cross lane 1 into lane 2. She then realised that the vehicle was entering her lane of travel (lane 3 or the middle lane).
She said that she grabbed her steering wheel as tight as she could and braked. The impact with the rear of the claimant’s vehicle then occurred.
She estimated that it was about 30-40 seconds from when she first saw the claimant’s vehicle coming out of Bath Road and to the point of impact.
She said that she did not have time to move from lane 3 into lane 2 or lane 4. She in any case believed that the claimant’s vehicle would have stopped in lane 1 or lane 2.
SC Murray also said that she was concerned that if she did move to another lane, other vehicles would have run into the back of her with those vehicles piling up, causing a larger collision. The insurer submitted that SC Murray was concerned about vehicles in adjacent lanes, but this is not reflected in the evidence.
SC Murray’s evidence was that when she accelerated (as I infer, to about 80km/hr) from Oak Road, “the other cars dropped behind”. In these circumstances, it would be implausible for any of those cars, which at best would be following at the maximum speed limit of 60km/hr, to have come close enough behind her so as to pose a risk of a collision if SC Murray had changed to lane 2 or 4, at speed.
SC Murray gives no evidence of other cars entering the highway from commercial premises on her left, and I note that there appear to be no streets leading to (or having access to) the Princes Highway to the left between Oak Road and Bath Road.
Given her evidence that she had observed the movements of the claimant unfold before her from the claimant leaving Bath Road to the point of impact, I consider that SC Murray had a reasonable window of opportunity, coming from behind, to slow down. There is no evidence that she slowed down or that she paid any attention to the claimant’s right indicator. She also said that she could not remember whether she glanced to her rear to check the traffic behind her.
In Manley v Alexander [2005] HCA 79 at [11] -[12], the plurality Gummow, Kirby and Hayne JJ stated the duty of riders and drivers on public roads as follows:
“…driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
In these circumstances, I find that SC Murray breached her duty of care to the claimant as a road user. She failed to pay reasonable attention to the movements of the claimant’s vehicle. She failed to heed the claimant’s right indicator. She failed to exercise reasonable care in the face of these events in not controlling her speed by slowing down to avoid the collision.
At the time of the accident and by virtue of Road Rule 305, SC Murray was exempt from driving within the speed limit because she was attending to an emergency. Nevertheless, that rule also makes it clear that in doing so, she owed a duty to the claimant and other road users to take reasonable care in the circumstances.
Section 5B (2) (d) of the Civil Liability Act provides that in determining whether a reasonable person would have taken precautions against a risk of harm, I have to consider the social utility of the activity that creates the risk of harm.
SC Murray was travelling at speed to attend an emergency at Sylvania where a person had fallen in their home. The social utility of the activity was high, but the activity could, and should, have been carried out without creating a risk of harm to other road users.
On the part of the claimant, there is no evidence that he looked in his rear vision mirror or over his shoulder before he commenced moving into lane 3. For that reason, I find that the claimant was contributorily negligent in causing the collision.
Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
“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 both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of 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.”
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
After careful consideration of the evidence, I have come to the conclusion that the negligence of the insured driver and the claimant contributed equally to the collision. SC Murray had a better opportunity to see the claimant and was able to observe him for 30-40 seconds before the accident, but the claimant did not pay sufficient attention to the road behind him before commencing to move into lane 3.
I assess the parties’ responsibility for the accident as 50% each.
It follows that for the purposes of section 3.28 of the MAI Act, the claimant was not mostly at fault for the motor accident.
COSTS
As the claimant was self-represented in these proceedings, the question of costs does not arise.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.28 of the MAI Act, the motor accident was not caused mostly by the fault of the claimant.
The decision takes effect from: 25 January 2020.
Maurice Castagnet
Member (Motor Accidents Division)
Personal Injury Commission
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