Muscat v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Muscat v Allianz Australia Insurance Limited [2022] NSWPIC 337
CLAIMANT:	Theresa Muscat
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Maurice Castagnet
DATE OF DECISION:	29 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the Claimant; section 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred when the Claimant pedestrian was attempting to cross four lanes of traffic on the Hume Highway in heavy traffic; speed limit of 70kph; where the Claimant crossed between two stationary vehicles and was struck by the insured vehicle halfway in third lane and halfway in the fourth lane; where Insured driver had seen the Claimant before she entered the roadway; where the insured driver was travelling at 60-kph prior to impact and struck the pedestrian at about 50-kph; where the Insurer alleged 70% contributory negligence; apportionment of culpability; Insured driver endangered the Claimant by attempting to drive around the Claimant and failed to take corrective action to avoid the collision; Claimant failed to take reasonable care for her own safety; Held – Claimant not mostly at fault for the motor accident.
DETERMINATIONS MADE:	Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 1. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017, the motor accident was not caused mostly by the fault of the claimant. 2. The effective date of this decision is 14 March 2021. 3. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Injuries Regulation 2017 is $1,881 inclusive of GST.

Reasons for Decision

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

INTRODUCTION

These proceedings concern a Miscellaneous Claim assessment under Schedule 2, cl (3)(e) of the Motor Accident Injuries Act2017 (the MAI Act).
The claimant, Theresa Muscat, seeks a review of the insurer’s decision made under s 3.28 of the MAI Act to the effect that the claimant was mostly at fault for the motor accident.

BACKGROUND

The claimant is a 59-year-old woman who suffered significant injuries in a motor accident on 14 September 2020 when she was struck by the insured vehicle while attempting to cross the Hume Highway near the intersection of Church Street, Yagoona.
On 2 October 2020, the claimant made an application for payment of statutory benefits. Specifically, she sought payment for treatment and care expenses. On 6 November 2020, the insurer accepted liability for payment of those benefits for the first 26 weeks.
On 13 January 2021, the insurer notified the claimant that it declined to make payment of statutory benefits beyond 26 weeks on the basis that the claimant was mostly at fault for the motor accident. The insurer assessed the claimant’s contributory negligence at 70%.
On 18 February 2021, the claimant sought an internal review of the insurer’s decision.
On 10 March 2021, the insurer issued a determination affirming its original decision.
On 22 June 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
On 13 July 2021, the insurer lodged a reply.
The proceedings are now before me for determination.

DETERMINATION ON THE PAPERS

I conducted several teleconferences with the parties over the course of the proceedings to discuss the material provided to the Commission and to explore the availability of further evidence. Ultimately, further documents were obtained from the NSW Police Force and NSW Ambulance Service pursuant to Directions for Production. The material produced by the NSW Police Force included Body Worn Video (BWV) footage of the scene of the accident and an interview with the insured driver.
At the teleconference conducted on 3 February 2022, the parties agreed that I could proceed to determine the matter based on the documents before me, after they have had an opportunity to lodge final submissions on the new evidence received. I made directions for the parties to do so and the claimant lodged further submissions with the Commission.
I am satisfied that there is sufficient information before me to determine the matter on the papers without holding a formal hearing.
In making my decision, I have considered the following documents:
(a)   the clinical notes from Liverpool Hospital from 14 to 15 September 2020;
(b)   the Application for Personal Injury Benefits dated 2 October 2020;
(c)   various photographs of the scene of the accident taken by Andrew Cornell of MJM Corporate Risks Services (MJM) on 28 October 2020;
(d)   the NSW Police Report dated 2 November 2020;
(e)   the record of interview between Andrew Cornell of MJM and Senior Constable Neil Heard on 2 November 2020;
(f)   the record of interview between Andrew Cornell of MJM and the insured driver on 2 November 2020;
(g)   the Liability Notice for Benefits after 26 weeks dated 13 January 2021;
(h)   the claimant’s application for internal review, dated 18 February 2021;
(i)    the insurer’s internal review decision, dated 10 March 2021;
(j)    the record of interview between Andrew Cornell of MJM and witness Sonny Williscoft on 18 March 2021;
(k)   the claimant’s signed statements dated 4 June 2021 and 12 November 2021;
(l)    the signed statements of witness Sonny Williscoft dated 4 June 2021 and12 November 2021;
(m)    the insurer’s submissions dated 13 July 2021;
(n)   the insurer’s further submissions dated 14 January 2022;
(o)   the claimant’s further submissions dated 24 February 2022 with copies of various media articles attached, concerning pedestrian accidents on the Hume Highway, Yagoona and “black spots” identified along the Hume Highway in the area of the accident;
(p)   the documents produced by NSW Ambulance Service pursuant to a Direction for Production, and
(q)   the documents produced by the NSW Police Force pursuant to a Direction for Production, which included a police notebook statement of the claimant, various coloured photographs of the scene of the accident and the BWV of Senior Constable Heard’s interview with the insured driver at the scene of the accident.

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 8.2 (the Guidelines);
· Civil Liability Act 2002 (the Civil Liability Act), 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 at about 11.00am on 14 September 2020 on the Hume Highway, Yagoona near the front of the local KFC store and nearly opposite number 481 Hume Highway.
(b)   The insured vehicle was travelling in an easterly direction from Cabramatta towards Bankstown.
(c)   At the site of the accident, the speed limit was 70kph.
(d)   The weather was fine, and the road surface was dry.
(e)   At the site of the accident, there were four lanes on the Hume Highway for eastbound traffic. Lane 1 next to the kerb was a parking lane. Lanes 2 and 3 were general lanes for traffic travelling straight ahead. Lane 4 was a right-turn lane for traffic turning right into Highland Avenue, towards Bankstown.
(f)   There was a set of traffic lights at the intersection of the Hume Highway and Highland Avenue which also provided a pedestrian crossing.
(g)   The pedestrian crossing at the set of traffic lights was about 50 metres east of the site of the accident.
(h)   The traffic was heavy.

The claimant’s evidence

On 24 September 2020, the claimant was interviewed by Senior Constable Heard of the NSW Police Force at her home. When asked by Senior Constable, “Can you please tell me what happened to cause the collision?”, the claimant’s response was recorded in the police officer’s notebook as follows:
“Well the two last cars in the left lanes stopped. I thought it was clear to cross & put my hand up in a OK gesture. It looked clear and [sic] started to cross [sic] the road between the cars. I stopped into the third lane and I looked it was clear. I started to cross where the turning lane was and the car hit me”.
In her application for statutory benefits dated 2 October 2020, the claimant described the circumstances of the accident in the following terms:
“I was standing in front of KFC near Church St and Hume Highway. I was crossing the road. Two cars gave way to me and the lady that has hit me has come from Church Street and hit me. I went in the air and hit the bonnet and than [sic] the ground.”
The claimant provided two signed statements to the Commission dated 4 June 2021 and 12 November 2021. Her evidence from those statements may relevantly be summarised as follows:
(a)   On the day of the accident, she asked her friend, Sonny Williscoft (Sonny) to drive her to the local shopping centre on the Hume Highway, Yagoona so that she can visit the bank.
(b)   Sonny parked his car along the Hume Highway in lane 1 and stayed in the car. Lane 1 was full of parked cars.
(c)   She got out of the car in order to walk across the road. She did not walk to the traffic lights (at the intersection of Highland Avenue) further ahead because she considered the pedestrian crossing was dangerous. The lights often change without warning and without providing the pedestrian sufficient time to complete crossing the road.
(d)   She has nearly been involved in an accident on the pedestrian crossing before when she had a “green walk” sign. The sign changed without warning and cars sped past her. She is aware of at least one pedestrian fatality at this crossing.
(e)   When she commenced to cross the road past the parked cars in lane 1, the cars in lanes 2 and 3 were stationary. The drivers of those cars signalled her to walk past their cars.
(f)    She stopped just on the line separating lane 3 and the right-turn lane (lane 4). She looked to see if it was safe to continue walking through lane 4 onto the pedestrian island.
(g)   At this stage, traffic in lanes 2 and 3 began to move to leave her with a clear sight of the entire road.
(h)   She observed a car (the insured vehicle) travelling in lane 3 starting to change to lane 4. This car was about two car lengths away from her when she first saw it. She cannot estimate the speed of the car except to say that it was travelling quite quickly.
(i)    She thought the driver had seen her because the driver moved her right arm in a way that the claimant interpreted as meaning the insured driver would allow her to walk in front of her car. The car then sped up and started to drive towards her instead of completing its turn into lane 4.
(j)    The claimant says she was stationary throughout the entire time she was observing the insured vehicle and she did not have an opportunity to react. There was nothing she could do to avoid the car colliding with her.
(k)   She was struck by the front right hand side of the insured vehicle whilst she continued to stand on the edge of lane 3.

The insured driver’s evidence

The claimant was interviewed at the scene of the accident by Senior Constable Heard The interview was recorded on Senior Constable Heard’s BWV which I have viewed.
The evidence given by the claimant in that interview may be relevantly summarised as follows:
(a)   The insured driver said that she saw the pedestrian (the claimant) coming from KFC. She saw the claimant run out, but she was braking already.
(b)   The insured driver saw the claimant run but unfortunately the claimant kept going and hit her car.
(c)   When asked by Senior Constable Heard how fast she was going, the insured driver said – “I don’t know because when I saw her, I braked, I tried to brake.”
On 2 November 2020, the insured driver was interviewed by Andrew Cornell of MJM with the assistance of an interpreter. Her evidence from that interview may relevantly be summarised as follows:
(a)   The accident happened at 481 Hume Highway near the KFC store.
(b)   The insured driver had travelled from Cabramatta and was heading towards the Bankstown Shopping Centre to do some shopping at Woolworths.
(c)   When asked how far away from the KFC store did the accident occur, the insured driver said – “Probably around – yeah, about 6 or 7 metres, yeah ‘cause she ran from – yeah she came out, ran out”.
(d)   When asked whether it was correct that she said that the claimant ran across the road, the insured driver said –“Yes, she was running across the road.”
(e)   She believed that the speed limit at the location of the accident was 60kph.
(f)    When asked to describe how the accident happened, the insured driver said –
“So I was travelling from the direction of Parramatta [sic] on Hume Highway and when I was getting, yeah, approaching KFC, the person ran out and hit my car and fell on the ground. But this didn’t happen at a crossing, it was – yeah near KFC in Yagoona.”
(g)   When asked at what speed was she travelling just before the accident occurred, the insured driver said that she was going around 60kph.

(h) When asked whether there were any vehicles in front of her at the time or was the road clear in front of her, the claimant replied –“It was clear.”

(i) When asked when the driver first noticed the pedestrian, the insured driver said –
“So I saw this person, yeah I was-yeah when I was braking this person was running, I was braking already.”

(j) When asked at what speed was she doing at the moment that her car and the pedestrian collided, the insured driver said –
“Yeah I think it was around 50 because I had reduced – you know I had tried to brake already at that time when I saw her running out – but I couldn't brake in time.”

(k) Prior to the accident, the insured driver said that she was driving along the Hume Highway in the third lane on the right (lane 3).

Evidence of the witness

The witness, Sonny Williscoft also provided two signed statements to the Commission dated 4 June 2021 and 12 November 2021. His evidence may relevantly be summarised as follows:
(a)   On the day of the accident, he drove his friend and flatmate, Theresa Muscat to the shopping centre at Yagoona. He parked his car in lane 1.
(b)   While he was still in his car, he saw Theresa standing approximately three cars in front of his car. At that time, he noticed there were other pedestrians who were crossing the road around his car.
(c)   He noticed that all the vehicles in lanes 2 and 3 were stationary.
(d)   He saw the insured vehicle approximately two car lengths behind his parked car. He then observed the vehicle veer into lane 2. He did not continue observing the vehicle.
(e)   He later turned his head to the road and saw Theresa on the roadway in lane 3.
On 18 March 2021, Mr Williscoft was interviewed by Mr Cornell of MJM. I have read the transcript of interview. I find that there is no further evidence in that interview that could assist me any further than the evidence provided by Mr Williscoft in his two signed statements.

The ambulance report

The NSW Ambulance Service arrived at of the scene of the accident at 11.18am. The “case description” of the electronic medical recorded the following:
“O/A 57 yo female pedestrian hit by a car at approx. 20-40kms,…”
The “secondary survey” recorded the following:
“Denied nausea; headache; alcohol involved…”.

The NSW Police Force

The NSW Police Force attended the scene of the accident.

The NSW Police Report dated 2 November 2020, records the “Crash Summary Details” as follows:
“About 11:20am on Monday 14th of September 2020, driver 2 was travelling east upon the Hume Highway in Yagoona in lane 3 of 3. Driver 2 was travelling about 20kph/hr in traffic. Outside KFC pedestrian 1 has attempted to cross the road not at the traffic lights but 50 metres up the street. Pedestrian 1 attempted to cross in front of vehicle 2 but has not been fast enough and has collided with the front offside of vehicle 2 and been thrown to the road surface. Pedestrian 1 was conveyed to Liverpool Hospital with minor injuries.”
As I have previously indicated, I have viewed Senior Constable Heard’s BWV which recorded his interview with the insured driver. The BWV also provided evidence of the scene of the accident after the collision occurred. At frame 11.21.22, the claimant is seen lying on the roadway to the left of the insured vehicle and in about the middle of lane 3. At frame 11.27.02, the insured vehicle is positioned about halfway in lane 3 and halfway in lane 4. For at least five minutes, and as depicted in frame 11.26.51, the insured driver is seen standing on the pedestrian refuge or median strip separating eastbound and westbound traffic lanes while she waited to be interviewed by police.

THE INSURER’S SUBMISSIONS

The insurer’s submissions may be summarised as follows:

(a)   The claimant crossed the Hume Highway outside the KFC store and as such failed to use the pedestrian crossing reasonably available to her in the vicinity.
(b)   The claimant contributed to the accident by unsafely crossing seven lanes of heavy traffic in a 70kph zone when unsafe to do so.
(c)   The claimant attempted to cross between vehicles exposing herself to a greater risk of harm. In Cook v Hawes [2002] NSWCA 79, the plaintiff crossed against traffic lights in the Sydney CBD and in between two buses. As the defendant was travelling in lane 3 when he first saw the plaintiff and applied his brakes, he was unable to stop in time. The Court held that the plaintiff was 75% contributorily negligent.
(d)   The claimant crossed the path of oncoming traffic. In Ma v Keane [2003] NSWCA 50, the Court found there was a reasonable expectation of the driver of a motor vehicle that an adult person would take ordinary precautions for her safety and not step out in front of an approaching vehicle. In Turkmani v Visvalingam [2009] NSWCA 211, the Court assessed the plaintiff’s contributory negligence at 80% in circumstances where he jogged across a busy intersection from behind a white van against the “don’t walk” sign. Likewise, in T and X Company Pty Ltd v Chivas [2014] NSWCA 235 (Chivas), a finding of 75% contributory negligence was made in circumstances where the plaintiff ran across a pedestrian crossing on Market Street, Sydney and was hit by a taxi that was found to be travelling at excessive speed.
(e)   The claimant failed to keep a proper lookout.
(f)    The claimant crossed between traffic which did not provide the insured driver with an opportunity to observe the claimant’s presence until the last minute when the claimant ran out in front of lane 3, the lane in which the insured driver was travelling.
(g)   The insured driver took evasive action by braking and reducing her speed from approximately 50kph to 20kph at the time of impact. As there was stationary traffic in lanes 1 and 2 and the insured driver was in the third and final lane, the insurer submits that there was no other evasive action that the insured driver could take other than braking.
(h)   The insurer submits that the claimant was mostly at fault for the accident.

THE CLAIMANT’S SUBMISSIONS

The claimant submits that there should be a finding of contributory negligence of less than 70% for the following reasons:
(a)   The insured driver’s history of events is contradictory and should not be relied upon by the Commission where the evidence is corroborated or where the evidence is against the insured driver’s own interests and in all the circumstances, the claimant’s evidence should be preferred.
(b)   The insured driver saw the claimant crossing the road but failed to take evasive action which probably would have avoided the accident. Any suggestion that the insured driver saw the claimant at the last moment should be rejected.
(c)   The insured driver’s negligence is :
(i)She was driving too fast. She admitted that she was driving at 60kph at the time of the collision. She saw the claimant but failed to either brake or take evasive action such as turning the car away from the claimant.
(ii)On her own admission (or at least on one version of her history), the insured driver saw the claimant and failed to slow down or take any evasive action. A driver must at all times be aware of the possibility that a pedestrian will walk across the road (Chivas). Chivas involves a person who was struck by a vehicle whilst disobeying a traffic light. This sense of awareness must be heightened near road islands which are erected for the protection of pedestrians. This accident occurred extremely close to a traffic island.
(d)   It is asserted that the claimant was intoxicated. This submission is based on a few words in the ambulance report. The interpretation of these words is not clear. They could simply represent a check list for the attending ambulance man. In any event, there is no evidence that the claimant exhibited any signs of being intoxicated and there is no report that she tested for alcohol after the accident. In these circumstances, this submission by the insurer should be rejected.
(e)   The claimant submits that the accident happened because as revealed in the attached photograph and the police video the insured’s vehicle as partially being driven in the wrong lane.
(f)    There is traffic island separating the fourth lane from traffic going in the opposite direction. The obligation placed on drivers to look out for pedestrians is increased in areas where there are traffic lanes. The rationale is that traffic islands are designed to assist pedestrians by providing a safe haven.
(g)   It is alleged that the claimant should have crossed at the traffic lights. There is no doubt that a pedestrian has an obligation to use traffic lights. Chivas is instructive in any event. Basten JA at [55] noted that the standard of care required of a plaintiff is that of a reasonable person in the position of the plaintiff. This underlines the reasonableness of the claimant not using the traffic lights
(h)   The test for contributory negligence is objective but the question of whether it is reasonable to avoid a traffic black spot is also objective. should also be kept in mind that the test is an objective test relying upon the knowledge of the pedestrian. The claimant knew that there was a set of traffic lights but also identified these lights as being dangerous.
(i)    In the media articles submitted by the claimant, it is noted that the area is defined as being a black spot in a State Government program to reduce the number of dangerous traffic spots in the state, meaning that motorists, especially local motorists have an obligation to be especially careful.
(j)    The claimant believes that the refuge island in the middle of the road is put there, among other reasons, to aid pedestrians while they cross the road. The insured driver should have taken more care as she changed lanes having seen the claimant before impact. The claimant acted reasonably in these circumstances in failing to cross at these lights, noting that she made all reasonable efforts to ensure that she was safely crossing each lane of the road.

THE RELEVANT LEGISLATION

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 she was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.
At the end of that period, in reliance on s 3.28 of the MAI Act, the insurer ceased paying those benefits.
Section 3.28 (1)(a) of the MAI Act provides that 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 the claimant if the contributory negligence of the claimant in relation to the motor accident was greater than 61%.
In this case, the insurer’s decision was made pursuant to s 3.28 (2) of the MAI Act to the effect that the claimant was mostly at fault in the motor accident on the basis that her contributory negligence was assessed at 70%.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 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, s 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.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence for the purpose of s 3.28(2) of the MAI Act, I must consider the common law and the enacted law.
Section 5R (1) of the Civil Liability Act 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.

LEGAL PRINCIPLES – DRIVER’S DUTY OF CARE

The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and 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 vehicle's path'.
[36] The driver is not required, however, 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 events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], 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: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."

LEGAL PRINCIPLES – CONTRIBUTORY NEGLIGENCE

McColl JA set out the proper approach to assessment of contributory negligence in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [13]-[14]:
“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act …
The words ‘reasonable person in the position of that person’ in s 5R are equivalent to the words ‘a reasonable person in the plaintiff’s position’: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects ‘the expectation that, in general, people will take as much care for themselves as they expect others to take for them’: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).”
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. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
Whether there is any contributory negligence by the claimant requires a determination of whether a reasonable person in the claimant’s position, would have crossed the Hume Highway, when she did, knowing what she did or what she ought to have known at the time.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of each of the parties and determine an appropriate apportionment between them.

CONSIDERATION

Having considered the whole of the evidence, including my observations of the scene of the accident from Senior Constable Heard’s BWV, I make the following factual findings.

Crossing the roadway from the KFC store to lane 3

The accident occurred at about 11.00am on 14 September 2020 on the Hume Highway, Yagoona near the front of a KFC store which faced the eastbound traffic lanes. This was nearly opposite 481 Hume Highway which faced the westbound traffic lanes.
About 50 metres further ahead of the KFC store, in an easterly direction, there is a set of traffic lights at the intersection of the Hume Highway and Highland Avenue. There is a pedestrian crossing at that set of traffic lights.
The claimant alighted from Mr Williscoft’s vehicle which was parked in lane 1.
Soon afterwards, and about three car lengths ahead of Mr Williscoft’s parked vehicle, the claimant stood near the front of the KFC Store to cross the roadway.
Eastbound traffic in lanes 2 and 3 became stationary. The drivers of two stationary vehicles travelling in lanes 2 and 3 respectively, signalled the claimant to cross the roadway in front of their vehicles.
The claimant crossed the roadway between the two vehicles and stopped on the delineating line between lanes 3 and 4. Lane 4 is a right-turn lane for traffic turning into Highland Avenue further ahead at the set of traffic lights.

Crossing the roadway from lane 3 to the median strip

There is a median strip on the road which separates eastbound and westbound traffic. From my observations in the BWV footage, the median strip is wide enough for pedestrians to stand if they have to wait for traffic to clear before proceeding to cross the road against westbound traffic. The insured driver is seen standing on the strip for quite some time after the accident while she waited to be interviewed by Senior Constable Heard.
When the claimant was stationary on the road line between lanes 3 and 4, I accept that she looked to see whether the road was clear.
Traffic in lanes 2 and 3 began to move.
The claimant then saw the insured vehicle approaching in lane 3 about two car lengths away from her.
I accept that the claimant saw the insured vehicle change from lane 3 to 4 before the collision.
I accept the insured driver’s evidence that before the claimant commenced to cross the road, she saw the claimant in front of the KFC store.
I accept the insured driver’s evidence that prior to the collision, she was travelling at about 60kph.
I accept the insured driver’s evidence that upon impact, her vehicle collided with the claimant at about 50kph.
Upon impact, the claimant collided with the left front side of the insured driver’s vehicle.
At the point of impact, the insured vehicle was travelling about halfway in lane 3 and halfway in lane 4.
In making the above findings, I do not accept the insured driver’s evidence that the claimant was running across the road after she was seen in front of the KFC store. Mr Williscoft saw her standing in front of the KFC store. At that time, the claimant took time to communicate with the drivers of the two stationary vehicles in lanes 2 and 3 before she proceeded to cross the roadway. This is consistent with part of the insured driver’s evidence that she saw the claimant “came out”.
I accept the claimant’s evidence that she was stationary on the delineating line between lanes 3 and 4, during which time she observed the insured driver. She saw the insured driver move her arm in a way that the claimant interpreted as indicating that the insured driver would allow her to cross in front of her vehicle. The claimant told Senior Constable Heard that she “started to cross where the turning lane was and the car hit me.”
The insured driver made an apparent attempt to drive around the claimant. This is consistent with the position of the insured vehicle on the roadway after impact, stationary half way in lane 3 and halfway in lane 4.
There is no evidence from the insured driver that she intended to proceed in lane 4 in order to make a right-hand turn into Highland Avenue. Her evidence to Senior Constable Heard is that she was travelling “straight ahead” towards Bankstown. Her evidence that she was travelling straight ahead is also consistent with her evidence that the road was clear ahead of her and that she was travelling at 60kph. There is no evidence that she had a right indicator activated.
The manoeuvre attempted by the insured driver was a serious miscalculation on her part. At the point of impact, the insured driver had slowed her vehicle from 60kph to 50kph, indicating a last minute appreciation of the danger she had placed the claimant in.
In the circumstances, I find that the insured driver was negligent in that she endangered the claimant by her actions and then failed to take corrective action to avoid the collision.
I also find that the claimant failed to take reasonable care for her own safety but her negligence was of a lesser degree. The claimant commenced to cross the roadway in heavy, but stationary traffic. Drivers in stationary vehicles in the first two lanes indicated that she was permitted to cross in front of them. The insured driver also indicated to the claimant that she should cross. The impact occurred when the claimant accepted that assurance and began to cross the last lane before the median strip.
The claimant says that she did not walk to the traffic lights (at the intersection of Highland Avenue) further ahead because she considered the pedestrian crossing was dangerous. She was not obliged to cross at the traffic lights unless she was within 20 metres of the crossing: Road Rules, Reg 234. I note the claimant lived locally to the site of the accident, and I accept her evidence that she believed that crossing at the traffic lights was dangerous. According to the claimant, the lights often change without warning and without providing the pedestrian sufficient time to complete crossing the road. She is aware of at least one fatality at that crossing.
In my view, however, a reasonable person would find that it would be more perilous to cross the roadway where the claimant did and in heavy traffic. In doing so, she placed herself in at the mercy of careless drivers such as the insured driver.
I do not accept the insurer’s submission that the claimant was intoxicated or that alcohol played a part in the cause of the accident. I have not given any weight to the words recorded in the ambulance report “alcohol involved” because of its ambiguity. It could simply represent a checklist for the attending paramedic. There is no evidence from the claimant that she had consumed alcohol. There is no evidence from any attending paramedic or police officers that the claimant smelled of alcohol or displayed any signs of being intoxicated. There is no evidence of any breath tests for alcohol carried out by any attending paramedic or police officers or by the hospital.
In making an appropriate apportionment of culpability in the circumstances of this case, the circumstances in Gordon v Truong; Truong v Gordon [2014] NSWCA 97 provides useful guidance. In that case, the plaintiff was attempting to cross Regent Street, Chippendale which consisted of five traffic lanes and no marked safety refuge in the centre. The plaintiff was not crossing at a pedestrian crossing, or an area controlled by lights. The plaintiff had reached the third traffic lane when the defendant’s vehicle had already entered Regent Street. Seeing the defendant’s vehicle, the plaintiff prevaricated, moving forward and then back. The defendant’s vehicle eventually struck the plaintiff. Basten and Macfarlan JJA found that an appropriate allowance for contributory negligence on the part of the plaintiff was 35%. Simpson J (as she then was) dissented and found that there no was no contributory negligence. One of the reasons for her Honour’s finding was that there was no evidence that the plaintiff was aware of the pedestrian crossing.
In the present case, the claimant did not prevaricate. She did not fail to keep a proper lookout. She crossed two lanes of traffic safely, then waited for a signal to proceed from the insured driver. Once she received it, she moved again, but instead of allowing her to proceed, the insured driver drove into her.
The claimant was aware of the pedestrian crossing, which would have been a safer option, albeit one with its own dangers. On that basis, I would apportion contributory negligence on the part of the claimant at 20%.
In order for the claimant to be mostly at fault under s 3.28(2) of the MAI Act, contributory negligence must be greater than 61%. It follows that I find that the motor accident was not caused mostly or wholly by the fault of the claimant.

COSTS

The claimant was successful in this application.
There is no reason why the claimant should not be allowed her legal costs in the regulated amount.
I allow the claimant’s costs in the regulated amount of $1,710 plus GST.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.28 of the MAI Act, the motor accident was not caused mostly by the fault of the claimant.
The effective date of this decision is 14 March 2021.
Legal costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,881 inclusive of GST.

[2022] NSWPIC 337

29 June 2022