Nguyen v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPIC 47
•6 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nguyen v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 47 |
| CLAIMANT: | Thi Minh Nguyen |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 6 February 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute; whether injured person was wholly or mostly at fault; claimant a pedestrian attempting to cross a roadway; liability for ongoing statutory benefits beyond 26 weeks denied by insurer; expert evidence considered; CCTV footage; submitted that claimant did not owe a duty of care to the insured and therefore definition of ‘fault’ in section 1.4 does not apply; argued that insurer ought not to be permitted to make alternative argument that the claimant is mostly at fault; whether Civil Liability Act 2001 (CL Act) applies; Held – CL Act applies to statutory benefits; no issue of credit as alleged by the insurer; insured driver not at fault; exceptional costs order made under section 8.10(4)(b). |
| DETERMINATIONS MADE: | FINAL CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person 3. Legal Costs: an exceptional costs order is granted pursuant to s 8.10(4)(b) in favour of the claimant and the insurer. I assess the total costs in favour of the claimant to be $26,633.20 inclusive of GST. I assess the total amount of costs in favour of the insurer is $18,451.36. |
STATEMENT OF REASONS
INTRODUCTION
Ms Thi Minh Nguyen (the claimant) is a 57-year-old female that suffered injury as a result of a motor accident occurring on 24 February 2020. The claimant was a pedestrian attempting to cross Restwell Street, Bankstown, when a collision occurred with the insured vehicle.
The matter involves a miscellaneous claims dispute as to whether the claimant is wholly/mostly at fault pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant subsequently lodged an Application for Personal Injury Benefits (claim form) with the insurer of the vehicle considered to be at fault. It is apparent that liability for statutory benefits was initially accepted.
In a liability notice dated 21 July 2022 the insurer advised of their decision to deny ongoing statutory benefits beyond 26 weeks on account of their determination that the claimant was mostly at fault for the accident. Contributory negligence was assessed at 75%.
An internal review was sought from the insurer, and in a determination dated 27 July 2022, the insurer set aside the original decision and instead determined the claimant was wholly at fault for the accident.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) seeking an assessment of the dispute.
I have held two teleconferences with the parties. Directions were made, and ultimately the matter was the subject of an Assessment Conference via Microsoft Teams on 25 July 2023.
Both the claimant (with the assistance of a Vietnamese interpreter) and the insured driver gave evidence at the conference. Directions were made at the end of the conference for the provision of additional written submissions. Those submissions have been provided by both parties.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Pursuant to Schedule 2 cl (3)(d) & (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purposes of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE
Claim form dated 5 March 2023
The claim form includes the following description of the accident from the claimant:
“I walk to the light and wait. I see the pedestrian light turn green then I start walking. I got hit by the car as soon as I walked on to the road.”
NSW Police Report dated 7 May 2020
The report indicates the accident was reported on 24 February 2020. The report also indicates that the claimant was considered to be at fault.
The “Crash Summary Details” included in the report is as follows:
“At 4.30pm on Monday, 24th February 2020, a male was driving a Nissan Pulsar…north upon Restwell Bankstown in lane 1. Approx. 100m West of Greenfield Parade the driver was travelling at about 10km/ when proceeding through the mentioned intersection. All of the sudden the Pedestrian have crossed the road via the intersection failing to give way to motor vehicle. Motor has braked suddenly and skidded approx. 3 metres. Which a has caused to collided with pedestrian unable to prevent collision.” [sic]
M&A Investigations report dated 21 April 2020
The report includes a summary of the evidence obtained and the investigations undertaken. I have not taken into account any commentary of the investigators and have instead limited my consideration to the evidence attached to the report, which is relevantly summarised below.
Although it is noted that a request by the investigators to interview the claimant was apparently denied by her legal representatives.
Statement of the insured, Mr Brian Lam, dated 2 April 2020
The insured is a 23-year-old male. At the time of the accident he had a driver’s licence for less than one year.
It is explained by the insured that on the day of the accident he had travelled from his home at around 5.30am and travelled to his place of employment, M5 Tunnel at Kingsgove. He worked to 3.30pm and then travelled with an intention to visit Bankstown Centro Shopping Centre.
From paragraph 21 of the statement, the insured states:
“About 4pm, I was travelling in a northerly direction along Restwell Street at Bankstown and I stopped at a red traffic light in the number lane at the intersection of Raymond Street. My vehicle was the first vehicle at the intersection. There were vehicles stopped behind me. I intended to travel directly through the intersection towards the Railway Line. At the time it was day and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did have the car radio on and I was not distracted by anything. I was the only occupant in my vehicle.
I was stopped for about thirty seconds to one minute and I was looking directly ahead. The lights then changed and I accelerated and drove forward towards the intersection of Greenfield Parade on my left. As I approached intersection I saw an Asian woman standing on the traffic island to my left. She was facing towards the opposite side of Restwell Street. I saw the traffic signals were green at Greenfield Parade as I approached and I continued to drive forward.
I then saw the woman step off the island and she took on one to two steps onto the roadway and the front nearside of my vehicle that collided with the woman. The woman then fell over and landed on the roadway. The traffic signals for my vehicle were green. At the time of the accident I was travelling about 10 to 20 kilometres an hour. My vehicle was about 5 metres from the woman when she stepped off the traffic islands. The woman was by herself at the time and there was no other persons crossing that section of roadway.” [sic]
The insured described the claimant as wearing a dress and a large hat. He was interviewed by police at the scene and signed a notebook statement.
Transcript of interview with Constable Max Cipriotto of 21 April 2020
The constable read out the version of events of the insured driver, as recorded in the police notebook. The insured stated he was driving around 10 kmph. The description provided by the insured is as follows:
“I was driving in a northerly direction upon Restwell Street Bankstown on Monday the 24 February 2020. As I proceeded through the green light at the intersection of Restwell and Greenway Parade all of a sudden a female Asian pedestrian have crossed the street without warning or stopping as a result she collided with the left hand side of my vehicle making a loud noise. I immediately stopped and helped the lady. She had injuries to her face and legs. Police arrived.”
The claimant was interviewed by the Constable at Liverpool Hospital on 25 February 2020. Her version is recorded as follows:
“About 4.30pm on the 24 February 2020, I was crossing through the intersection of Restwell and Greenfield Parade. I was on my way to the Post Office at Bankstown. As I walked through the crossing I stopped with the traffic lights were and saw a green man to cross. Then I felt immediate pain and realised I was hit by a car. A young boy was the driver of the car and I don’t remember anything else...”
The police were able to obtain footage of the accident via CCTV footage at the Bankstown Sports Club. The constable stated that the insured was “correct” and that the claimant was at fault.
No skid marks were noted at the scene and no measurements were taken. The constable stated that he could only rely on the insured as to the speed involved, however he did not consider that speed was a factor in the accident.
The constable stated that he found the claimant to be at fault, however, no action was taken against her and the police matter is finalised.
Photographs and sketch plans
The investigation report includes a number of photographs of the relevant stretch of roadway and sketch plans of the scene.
The roadway is shown to be flat asphalt with commercial businesses either side. A view from the direction of travel of the insured driver shows a set of traffic lights around 50 metres south of the accident scene where the insured driver apparently stopped prior to the accident. A traffic island, where the claimant was standing prior to impact, is to the left, with a further set of lights for pedestrians to cross.
The traffic island is situated at the T intersection of Restwell Street and Raymond Street.
CCTV footage
The CCTV footage was obtained by two surveillance cameras situated to the Bankstown Sports Club which is on Restwell Street, approximately 80 metres south of the accident site and on Greenfield Parade approximately 45 metres west of the accident site.
I have viewed both sets of footage. The footage demonstrates the insured had a green light to proceed. The claimant is seen to leave the traffic island and an impact occurs with the front left corner of the insured vehicle.
The footage has been analysed by the parties’ experts, which is discussed further below.
Expert report of Nigel McDonald – Accident Investigation Services Pty Ltd – dated 7 September 2022
This traffic engineer report was prepared at the request of the insurer’s legal representatives.
Mr McDonald concludes that the insured driver could not have reasonably avoided the accident. In making this finding, Mr McDonald notes from the evidence, including the CCTV footage, that the insured driver had a green light traffic signal when proceeding towards the pedestrian crossing where the claimant was standing. As such, the claimant would not have had a green traffic signal to proceed across the road.
Mr McDonald also finds that the insured driver was travelling at a speed in the order of 35kmph at the time of the impact, which was an appropriate speed given the conditions.
It is found that the insured driver commenced braking around the moment of impact, which is consistent with published perception response time research.
Expert report of Mr Grant Johnston – Grant Johnston Consulting Engineers – dated 15 May 2023
This report was prepared at the request of the claimant’s legal representatives.
Mr Johnston notes the presence of a crossing on the northwestern corner of the island. Mr Johnston provides a summary of the relevant crossings, which is illustrative for the purposes of considering the circumstances of the accident. He states from paragraph 4.15:
“On the northwestern corner was a pedestrian crossing which in January 2020 was not controlled by the traffic signals but operated as a zebra type crossing. As identified by the wide parallel lines across the roadway. In the March 2020 image this crossing was seemingly now incorporated into the traffic signals as the zebra markings have been removed and only the parallel crossing lines are present. It appears form the CCTV footage that this leg still operated as a zebra crossing at the time of this incident based on the zebra markings still being present but it is possible it had been incorporated into the traffic signals by this time as part of a transitional stage. The pedestrian is understood to have initially crossed over this crossing to reach the central traffic island.
There are then two other crossings.
Working anticlockwise the next of these is in the southwestern corner from the island to the western kerb of Restwell Street south of Greenfield Parade. This crossing is controlled by the traffic control signals. This crossing was not directly involved in any actual crossing movement although it is my opinion that if Ms Nguyen heard an audible walk signal which prompted her to cross then it came from this leg of the crossings.
The final crossing is the one which Ms Nguyen was crossing at the time of this incident and that goes from the centre of the traffic island towards the eastern kerb of Restwell Street. This crossing is also controlled by the traffic control signals.”
Mr Johnston explains difficulties in extracting the CCTV footage through the format provided. He notes variability in the frame times and therefore states that the video must be treated as having a variable frame rate and such timing based on counting frames will not be precise. He furthers states: “all of the above does suggest that one must be very careful in making any precise estimates of time intervals based on interrogation of this video.”
Mr Johnston estimates the insured driver’s speed at 30 to 33kmph and notes this is substantially faster than the 10kmph he had alleged. Mr Johnston, notes that there is agreement with Mr McDonald on the speed of the vehicle.
Through analysis of the video and the stopping distance of the insured driver, Mr Johnston concludes that the insured driver must have braked at or just after impact.
When discussing the speed of travel of the claimant as a pedestrian, Mr Johnston, states that the insured driver “failed to see” the claimant as she was stationary. He states that a failure to see the claimant stationary would diminish his ability to perceive her then start to move and respond.
After analysing the evidence, including the footage, Mr Johnston concludes that the insured driver had an available exposure time of 2.05 seconds in which to perceive and respond to the pedestrian and to take evasive action. That is the claimant was likely moving from the kerb for 2.05 seconds.
Mr Johnston provides an opinion that the insured driver mostly likely responded in about two seconds which is slower than the historical data. He suggests that therefore the insured was at least inattentive. He goes on to state at paragraph 7.51:
“If instead of braking in 2 seconds the driver braked at the median perception response time of 1 second they would have started braking when they were about 8 or 9 metres from the pedestrian and as previously calculated the stopping distance from 30 to 33 km/h was in the order of 5 to 6 metres so the vehicle would have stopped prior to reaching the position of the pedestrian. Even in the case of the slow responder at 1.4 seconds this would have still provided about 0.6 seconds of braking before impact which equates to about 5 to 5.5 metres of braking which would have also meant that the vehicle could have stopped or all bar stopped prior to impact.”
Mr Johnston concludes that the claimant mistakenly crossed against a red signal as a result of the audible walk signal from another crossing.
It also concluded by Mr Johnston that the insured driver had an apparent inattention on approach to the location, which resulted in a failure to avoid a collision which on calculation would have been avoidable to an attentive driver.
Supplementary report of Mr McDonald dated 13 June 2023
Mr McDonald notes the area of disagreement with Mr Johnston is perception response time of the insured driver. It is noted that both experts utilised the same source material to determine an appropriate benchmark. However, the inputs differ in that Mr Johnston assumed the insured driver and/or prudent driver would be looking directly at the claimant as the claimant stepped off, however, Mr McDonald assumed the insured was looking along the road ahead. Secondly, it is noted that Mr Johnston applied the assumption the claimant was not perceived as stationary before stepping off, whereases Mr McDonald assumed the claimant was perceived as stationary prior to stepping off the island.
Mr McDonald states at paragraph 19:
“In my analysis, rather than asking himself, ‘will the pedestrian keep coming or not?’, I say that the insured likely saw the claimant stopped on the traffic island (or at least not moving towards his path of travel) and devoted his attention to the claimant and other potential hazards to either side by looking along his travel path.
My view is that the claimant had stopped on the traffic island and was not presenting as likely to continue moving forward into insured’s path, and as a hazard was therefore neutralised.”
Mr McDonald emphasises his previous finding that had the insured braked slightly earlier, the impact would have likely been more severe as the claimant would have been struck by the full force of the vehicle rather than a glancing or partial impact.
Mr McDonald disagrees that one second perception response time is appropriate in the circumstances and instead 1.5 seconds is appropriate, in which case the insured could not avoid the accident.
In terms of the video footage, Mr McDonald notes after discussion of video capturing and conversion that caution is required for any analysis as most videos will make some level of alteration to what actually occurred.
Ultimately, he considers the margin of error in the video in terms of time, and considers it acceptable such that the video provides sufficiently reliable indicator.
Mr McDonald found a likely perception response time of 0.7 to 1.4 seconds.
Evidence at the assessment conference
The claimant gave evidence at the conference that she could not remember much of the incident. Whilst she had worked in the area for quite some time (eight to nine years), she had not walked that particular route before.
She stated that when she got to the traffic island that she waited for the traffic light to walk. She said that she heard a noise indicating that she could walk, but after that she could not remember anything. She described the noise indicating she could walk as being “toot, toot, toot”. She also stated that she saw a green light when she looked to her right. She confirmed that she did not see the insured vehicle. The claimant also confirmed that she looked to the left on the roadway only.
The insured driver also gave evidence. When asked to describe what happened, Mr Lam stated that he was driving along Restwell street and there was another set of traffic lights ahead that were green so he drove and the claimant walked off on the side of the road and his car hit her.
When asked to estimate how far away he was from the claimant when she stepped off, he could not remember but it was less than a metre. He stated that she stepped from the kerb about one metre.
Mr Lam was questioned by counsel for the claimant. Under questioning he confirmed that he was familiar with the area, and described the area as “pretty well used” noting that there is a school nearby and shops. He confirmed that he had seen pedestrians cross at Restwell Street in the past. He also noted that there were normally children walking around.
He was also questioned regarding the presence of warning signs on approach to the accident site which warn of pedestrians. He could not specifically recall the presence of the signs.
The insured was questioned as to whether he could be mistaken that he saw the claimant standing at the traffic island before the accident. The insured denied that he was mistaken in this regard and confirmed that he had seen her standing as he approached. He stated that he did not think much of her presence.
He confirmed that what he told the police was his fresh memory and he had no reason to tell anything but the truth. He denied the suggestion that he had lied to police that he saw the claimant prior to the accident.
The insured also stated that he would have been looking straight ahead as he travelled through the subject intersection.
SUBMISSIONS
Claimant’s submissions dated 10 February 2023
Noting the definition of fault contained with s 1.4 of the MAI Act to include “negligence or any other tort”, it is submitted that fault does not include non-tortious negligence. It is submitted that the claimant did not owe a duty of care to the insured (Astley v Austrust Limited [1999] HCA at [21]).
It is therefore submitted that the issue of contributory negligence is not relevant when determining whether the claimant was wholly at fault. It is submitted that once it is found that the claimant is not wholly at fault, the insurer’s determination ought to be set aside and the claimant entitled to statutory benefits on an ongoing basis.
Alternatively, it is submitted that the claimant is not mostly at fault. It is submitted that the insured contributed to the accident and that the exercise of reasonable care includes attention to all that is happening in or near the roadway (Warth v Lafsky [2014] NSWCA 94and The Nominal Defendant v Ross [2014] NSWCA 212]).
It is submitted the insured driver failed to keep a proper lookout and drove at an excessive speed to the circumstances. In addition, he failed to pay proper regard to pedestrians, including the claimant and “did not place himself in a position to know what is happening or might happen in the vicinity of the vehicle.”
Insurer’s submissions dated 3 March 2023
The insurer submits the claimant’s submission that the claimant cannot be found wholly at fault at fault for the accident for the purposes of statutory benefits, is misconceived. In making this submission, the insurer refers to s3.2(5) of the MAI Act that provides:
“…for the purposes of this Act (including any motor accident insurance cover in respect of a motor vehicle) a liability that the relevant insurer has to pay statutory benefits under this Part in respect of death or injury is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (being a motor vehicle for which the insurer is the relevant insurer)”
The insurer then refers to ss 3.11 and 3.28 as set out above. The insurer submits that therefore it is unnecessary and erroneous in the context of the present case to consider whether the claimant owed a duty of care or whether any act or omission of the claimant constituted tortious negligence.
The submissions refer to Justice Fagan in the case of AAI Limited v Singh [2019] NSWSC 1300, at [13] who states:
“Whatever the reasons for enacting s3.2(5), its effect is to deem that the additional statutory obligation is within the insuring clause, and no more. It does not, either in express terms or by implication or necessary intendment, have the effect of deeming any person to have been at fault in any situation to which s 3.2 may apply.”
It is then stated:
“NRMA submits that the internal review decision is clearly on its face a determination by NRMA that the claimant was wholly at fault as the just and equitable reduction for contributory negligence by the claimant in the circumstances of the case would be 100%.”
In the alternative, it is submitted that I would find the claimant to be mostly at fault, in that the circumstances of the accident are such that the contributory negligence of the claimant would not be less than 75%.
Insurer’s submissions dated 17 July 2023
The submissions refer to the expert reports. It is submitted that I would find that the insured perceived the claimant stopped at the traffic island, in line with the findings of Mr McDonald. It is noted that Mr McDonald finds a response time of 1.2 to 1.9 seconds whereas Mr Johnston calculates 0.7 to 1.4 seconds.
It is submitted that I would favour Mr McDonald’s findings and that the claimant did not present as a hazard until she stopped of the traffic island at 1.1 seconds pre-impact.
Claimant’s submissions dated 18 July 2023
It is submitted that the insurer effectively required me to ignore the definition of fault provided for by s1.4 of the MAI Act.
It is submitted that the insurer is prevented from now seeking to raise a denial on the basis of the claimant being mostly at fault for the accident noting that the liability determination upon which the subject application is predicated, overturned the mostly at fault determination and instead found the claimant to be wholly at fault.
It is submitted that the insurer is restricted to the decision that it made. The claimant submits that to permit the insurer to raise an alternative argument in circumstances where the evidence is framed on the basis of the insurer’s liability notice, would cause her prejudice and would be inconsistent with the objects of the legislation. Further, it would be inconsistent with the guiding principles identified in the Motor Accident Guidelines.
Insurer’s further submissions dated 28 July 2023
Following the hearing of this matter at the Assessment Conference, I requested further submissions regarding liability issues and costs.
The insurer notes, that on the question of whether the insurer can now rely on an alternative argument of “mostly at fault”, the insurer correctly notes that the claimant’s counsel was not able to identify any provision of the MAI Act that prevented such course.
The insurer submits that the position of the claimant is contrary to the express terms of s 6.19 of the MAI Act which provides the insurer is not prevented an insurer from accepting liability for statutory benefits and then later denying liability.
It is submitted that if the claimant’s approach was accepted and I found that the claimant was not wholly at fault, having regard to s 6.19, the issue of mostly at fault would remain undetermined and capable of being agitated by the insurer at a later date. It is submitted that this would be undesirable and contrary to the purposes of the MAI Act, specifically s 1.3(g), which includes: “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.”
The insurer submits there is no basis at law to argue that the Commission is confined to determine the nature of the dispute by reference to the terms of the insurer’s internal review decision.
A previous decision of the Commission by Member Cassidy in the matter of MacMahon v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 427 (MacMahon), is referred to. Member Cassidy found that it was open to her to determine the issue of “mostly at fault” in circumstances where the insurer had not wavered from a “wholly at fault” determination.
The insurer notes the allegation of prejudice, but notes that no such prejudice has been demonstrated. It is noted that Mr Johnston was briefed by claimant’s legal representatives on the question whether the claimant was “mostly at fault”.
It is submitted by the insurer that statutory benefits are distinct from a claim for damages and that the terms “mostly at fault” and “wholly at fault” must be viewed in that context. It is submitted that the definition of “fault” with its connection to the tort of negligence does not apply to ss 3.11 and 3.28 of the MAI Act. In making this submission the insurer refers to the findings of Member Cassidy in the matter of MacMahon and the case of Vanoostwaard v AAI Limited t/as GIO [2023] NSWPIC 97 (Vanoostwaard).
Member Cassidy in the matter of Vanoostwaard referred to the common law three prong definition of negligence that refers to a duty of care being owed, a breach of that duty and consequent injury/loss.
She found that Mr Vanoostwaard did not have a cause of action against himself and did not owe himself a duty of care.
Member Cassidy goes on to state that the Civil Liability Act 2002 (the CLA Act) deals with the tort of negligence. She finds that the CLA Act does not apply in terms of statutory benefits unless specifically mentioned.
The insurer then refers to the oral submission of counsel for the claimant that in order to avoid the claimant the insured driver ought to have been travelling at a slower speed. The insurer submits that such argument does not have the support of the expert evidence.
Claimant’s further submissions dated 18 August 2023
The claimant submits that the insurer has failed to grapple with the fact that it replaced the initial liability decision and replaced it with a finding of wholly at fault in the internal review decision. As such s 6.19 of the MAI Act is not relevant.
It is submitted that the case of MacMahon is not relevant as it differs from the circumstances of this dispute, in that it is not clear whether the subject questions were called and considered in that matter. It appeared that the claimant in that case did not object to the insurer raising an alternative argument.
The claimant submits that the findings of Member Cassidy in the matter of Vanoostwaard, ought not be followed. In this regard, it is pointed out that ss 3.11 and 3.28 both refer to a person being mostly at fault if the “contributory negligence” of that person was greater than 61%. It is therefore submitted that, with certain limitations, the common law and enacted law with respect to contributing negligence applies to a claim for statutory benefits.
It is submitted that the CLA Act did not need to be considered. It is submitted that the claimant cannot be found to be wholly at fault, as inter alia, fault is defined in the MAI Act and the definition cannot be satisfied because the claimant did not owe a duty of care to anyone that is relevant.
Insurer’s oral submissions
It was submitted that there was no prejudice to the claimant with the insurer seeking to rely on the alternative case that the claimant was mostly at fault. It was noted that Mr Johnston was briefed on the assumption that the dispute was a “mostly at fault” scenario.
It was submitted that there was not a lot of disagreement between the experts.
In terms of the area, it was submitted that there were a number of things the insured driver needed to be conscious of when driving through the scene, including children. It was submitted that the claimant’s expert, Mr Johnston did not explain why the insured should have only been fixated on the claimant on approach. In this regard, it was submitted that until the claimant stepped off the island, there was nothing special about her presence. On the claimant’s own evidence she looked to the left and not the right and stepped off the island.
Claimant’s oral submissions
It was submitted that the insurer ought not be permitted to rely on the alternative argument of mostly at fault. When questioned, counsel for the claimant confirmed that he was not aware of any legislative provision that prevented me from making a finding of mostly at fault in circumstances where the insurer’s internal review decision found the claimant wholly at fault.
It was submitted that because the claimant was a pedestrian, she did not owe a duty of care and therefore cannot be found negligent. Noting the definition of fault in the MAI Act being negligence or any other tort, the claimant cannot be found to be wholly at fault. It was noted, however, that the issue of contributory negligence was a different matter altogether.
In respect of the insured driver’s evidence it was noted that there were important inconsistencies, namely the speed he was travelling. It was noted that both experts disagreed with his estimate and note that he was travelling above his estimate of 10-20kmph. Accordingly, it was submitted that the insured driver was not a witness of credit and I could not accept him as a witness of truth.
It was further submitted that the claimant was not paying attention to the warning signs in place on approach to the accident scene. It was stated that there was no mention of the claimant being present on the island on approach in the version of the insured provided to police.
It was submitted that the insured driver did not keep a proper lookout for pedestrians and did not place himself in a position to take reasonable steps to react to events including the claimant’s careless behaviour.
FINDINGS AND REASONS
There are a number of issues that require a determination. Firstly, whether the CLA Act applies to a claim for statutory benefits under the MAI Act.
Does the CLA Act apply?
Section 3B of the CL Act provides that the provisions of the CLA Act do not apply to:
“(ei) Civil liability relating to an award to which Part 4 of the Motor Accident Injuries Act 2017 applies – the whole Act except the provisions that subsection 2 provides apply to motor accidents.”
It is noted that the statutory benefits claim that is the subject of this dispute, does not come within Part 4 of the MAI Act. Therefore, I find that the CL Act does apply to statutory benefits.
Issues of credit
In respect of the issue of credit, after considering the oral evidence of the claimant and the insured driver, I found them both to be reliable witnesses and there are no issues of credit. I did not consider either the claimant or the insured driver were untruthful in their evidence. The claimant made appropriate concessions that did not assist her case, such as looking to the left of the roadway only. She appropriately conceded that she did not see the insured vehicle and did not recall anything after starting to cross the road.
Whilst it was pointed out by the counsel for the claimant that there were inconsistencies in the insured driver’s evidence regarding speed, I do not find that this amounts to an issue of credit. I do find that the insured driver was mistaken as to his speed at the time of the accident, noting the opinion of both experts. However, I consider this is simply a matter of a mistake in estimation. I do not consider that this amounts to his other evidence being called into doubt.
The main issue in contention in respect of the insured driver’s evidence is whether he saw the claimant standing on the island before the accident. I accept that he did see the claimant standing at the island prior to the accident.
Whilst the police notebook statement does not positively state that he saw the claimant, it also does not state the opposite. In other words, the police notebook statement does not state that the insured did not see the claimant prior to her crossing the road. It makes no mention either way. I accept that the insured driver was not specifically asked about this fact and that is why there is no mention of it either way.
On the other hand, in the statement provided to the investigators approximately two months after the accident, the insured driver has specifically confirmed that he saw the claimant standing at the island prior to the accident occurring. I accept this evidence as truthful and an accurate recollection of the insured driver at a relatively short period of time after the accident occurred.
Was the insured driver at fault?
It is uncontroversial between the parties, the experts and indeed from the CCTV footage, that the claimant began to cross the roadway against the traffic signal. In turn, it is uncontroversial that the insured driver had a green traffic signal to proceed through the intersection.
I accept the opinions of the experts that the insured driver was likely travelling in the vicinity of 30-35kmph at the time of the accident. Whilst there was a suggestion made by counsel for the claimant that the driver was travelling at an excessive speed in the circumstances, such submission is made in the absence of any expert evidence stating such. The insured driver was travelling within the designated speed limit for the area. There is no suggestion within the expert reports of him travelling at an excessive speed. I therefore reject the submission that the insured driver was travelling at an excessive speed.
The main area of disagreement between the experts for the parties is the perception response time of the insured driver. It is apparent that the difference in the times concluded by the experts relates the assumptions relied upon. Mr Johnston proceeds on the assumption that the insured driver did not observe the claimant standing at the traffic island before she stepped off the kerb. I have already found that I do not accept such scenario. I accept the insured’s evidence that he did in fact see the claimant standing in a stationary fashion at the traffic island prior to the accident.
As such, I accept the insurer’s submission, and as articulated by Mr McDonald, that the perception response time needs to be calculated on the basis other than the insured driver solely focussing on the presence of the claimant. I accept that he saw her and that it was a reasonable expectation that she would remain stationary until she had the right of way to travel across the roadway on a green traffic signal. I also accept that the insured, as a person taking reasonable care, needed to take into account all other potential hazards. This includes other pedestrians and the roadway itself.
As such, I prefer the findings of Mr McDonald as to the perception response time of the insured driver. Being 0.7 to 1.4 seconds. I note that the claimant stepping off the kerb until impact was approximately 1 second. On this basis, I consider the insured driver did not have a reasonable opportunity to react to the presence of the claimant on the roadway such that he could take evasive action that would have avoided the accident occurring. I also accept the findings of Mr McDonald that had the insured driver braked earlier than at or just after the time of impact, this would not have resulted in the accident being avoided, but instead the claimant would have suffered a full impact with the front of the insured vehicle.
I therefore find that the insured driver was not at fault for the accident.
Was the claimant wholly or mostly at fault?
There is some strength to the argument that as a pedestrian the claimant cannot be found wholly at fault. I do not accept the suggestion that the definition of fault contained within s1.4 of the MAI Act should be disregarded for the purposes of considering ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act. To my mind the definition contained within s 1.4 does not sit harmoniously with the task assigned by ss 3.11 and 3.28 in assessing whether a pedestrian is mostly at fault.
Notwithstanding this issue, the consideration of contributory negligence is a different matter.
Whilst the claimant submits that it is not open to me make a finding that the claimant is mostly at fault, I do not accept such argument. I am not aware of any legislative provision that prevents me from making a determination of such issue. Indeed, counsel for the claimant confirmed that he was also not aware of any such provision.
Schedule 2 cl 3(d) of the MAI Act declares that a “matter” of whether a motor accident was caused wholly or mostly at fault of the injured person. It is therefore declared that this is the issue that I must determine.
Further, whilst the issue of prejudice has been raised, what the prejudice allegedly includes has not been set out. Indeed, as pointed out by the insurer, the claimant’s expert was briefed on the assumption that the dispute related to a question of whether the claimant is mostly at fault. I therefore find that there is no actual prejudice encountered by the claimant in me making a determination as to whether she is mostly at fault.
I therefore find it open to me to proceed on the basis of an assessment of the claimant’s contributory negligence.
As set out above, it is not in issue that the claimant commenced to cross the roadway against a red traffic signal.
She gave evidence that she did not observe the presence of the insured vehicle prior to the accident.
It is also apparent from her evidence that she mistakenly crossed on the basis of a sound, which on the evidence must have been for a different pedestrian crossing. She also has given evidence that she only looked to her left on the roadway and not the right which is the direction from which the insured was travelling.
On this basis, the claimant has failed to take appropriate care and attention to her own safety. She failed to keep a proper lookout for oncoming traffic and commenced to cross the street against a red traffic signal, albeit she mistakenly likely observed a green pedestrian light for a different crossing.
Taking this all into account, I find that the claimant was 80% contributorily negligent in causing the motor accident.
It follows therefore, that I find that she was mostly at fault.
COSTS
As a regulated miscellaneous claims assessment matter under Schedule 1 cls (3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (Regulation), legal costs may be awarded.
Schedule 1 cl(3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.
I am not precluded from awarding costs in favour of the claimant merely on the basis that I have found against her.
A claim for costs has been made by both the insurer and the claimant pursuant to s 8.10(4)(b) of the MAI Act, on the basis that exceptional circumstances exist.
Section 8.3(4) of the MAI Act provides the Commission discretion to award legal costs, stating:
“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 claimant unless payment of those legal costs is permitted by the regulations or the Commission.”
The insurer submits that Justice Wright’s interpretation of s 8.3 of the MAI Act in AAI Ltd t/as GIO v Moon [2020] NSWSC 714 is such that the Commission’s power to permit costs over the regulated amount applies to both claimants and insurers.
There are a number of previous decisions of the Commission where exceptional costs have been awarded in favour of the insurer on this basis.
The insurer also has indicated that it consents to the awarding of exceptional costs in favour of the claimant, even in the event that I were to find against the claimant.
I do accept that this matter has delved into issues that go beyond what the legislature would have envisaged as being reasonable facets of a dispute for determination under Schedule 2 of the MAI Act. This has included complex issues of statutory interpretation.
On this basis, I accept that costs ought be awarded on an exceptional basis to both the claimant and the insurer.
I initially issued my determination, and directed that the claimant and insurer provide a detailed schedule of costs claimed within 28 days in the event that they wished me to assess costs. Both parties have provided such schedules. The insurer has also provided submissions in response to the claimant’s claim.
The claimant makes a claim inclusive of GST of $10,949.40 for professional costs, $12,347.50 for counsel fees and $11,884.40 for expert report fees.
The insurer makes a claim for of $10,013.52 plus GST for professional fees, counsel fees of $5,150.20 and expert report fees of $5,859.43.
Claimant’s costs
The hourly rate claimed by the claimant is $420 which is described as a “compromised average hourly rate” due to all work being carried out by the Senior Partner (Verger Kolokossian – with a charge out rate of $570 per hour) or otherwise by another lawyerwas settled by Mr Kolokossian. In addition, it is explained that the rate takes into account work carried out by administrative staff.
The insurer objects to such rate and submits that a rate of $311 per hour is appropriate. That is the hourly rate claimed by the insurer. I agree that the rate claimed by the claimant is excessive, and instead I allow $311 per hour plus GST, which I consider reasonable.
The insurer also objects to any amounts claimed in respect of work carried out up to and including the internal review. I agree with this submission, noting that the costs to be awarded are in respect of the subject proceedings in the Commission.
The other objections are as follows:
(a) bulk of drafting brief to counsel should have been performed by administrative staff and the insurer allows 50% of claimed figure. I agree with this submission as the collation of a brief is largely an administrative task;
(b) the amount claimed for conference with counsel of 15 units is more than the 30 minutes claimed by counsel and therefore, 30 minutes should be allowed – I agree that this is a reasonable observation and the amount claimed is incompatible. I therefore allow 30 minutes;
(c) the claim of 1 hour each for perusal of counsel’s advice and submissions is excessive and should be 1 hour in total. I agree that this submissions is reasonable and allow 1 hour total;
(d) the amount claimed for drafting instructions to expert should not be allowed as counsel has charged the same. I consider it reasonable that the lawyer charge an amount for finalisation of the letter to be sent and I therefore allow 30 minutes, and
(e) the amount claimed for a second conference with counsel should not be allowed as there is no reference on the invoice from counsel. I agree with this submission and make no allowance in this regard.
Taking all of the above into account, I allow a total of 170 units (17 hours) at a rate of $311 plus GST. This amounts to a total of $5,815.70 inclusive of GST.
In respect of counsel fees, the insurer agrees to the amount claimed save for an amount charged for settling a letter to Dr Assem. I agree that this is an unrelated charge noting this was a liability dispute only. I therefore allow the amount of $12,017.50 inclusive of GST.
The insurer objects to the amount claimed by the claimant’s expert. The amount claimed is $11,884.40. The insurer notes the detailed invoice but submits that it is almost double the cost of the insurer’s report. I agree that the issues and evidence considered by the experts was essentially the same and I do consider the amount claimed to be excessive. I allow an amount of $8,800 inclusive of GST.
In total, I therefore award costs in favour of the claimant in the amount of $26,633.20.
Insurer’s costs
The insurer claims a total of $10,013.52 plus GST for professional fees. This includes an amount of $8,620.92 for Carl Newton, special counsel at a rate of $311. An amount of $27.50 for Gabby Mulry, lawyer at a rate of $250 per hour. An amount of $784.30 for Nick Zraika, law graduate, at a rate of $230 per hour and $580.80 for Stephanie Bolin, paralegal at a rate of $110 per hour.
I have examined the schedule of costs and consider that some work carried out that is claimed amounts to solicitor/client costs rather than party/party costs. I have therefore not allowed amounts claimed for client interaction on the following dates:
(a) 28 February 2023;
(b) 6 March 2023;
(c) 22 May 2023;
(d) 13 June 2023;
(e) 14 July 2023;
(f) 21 July 2023;
(g) 16 August 2023;
(h) 17 August 2023;
(i) 30 October 2023, and
(j) amount claimed for 14 July 2023 for pre-hearing advice reduced to 30 minutes.
I also consider the amount claimed for a paralegal to prepare a brief totalling 4.8 hours is excessive, noting that the task is predominantly an administrative one. I reduce the allowance to 1.6 hours.
The total amount I allow for professional fees is $8,441.73 inclusive of GST.
An amount of $5,150.20 is claimed for counsel fees. I consider this reasonable and allow same.
Also claimed is an expert report fee of $5,859.43. I consider this reasonable and allow same.
The total amount I award for legal costs in favour of the insurer is therefore $19,451.36.
CONCLUSION
For the purposes of s 3.11 the motor accident was not caused by the fault of another person
For the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person
Legal Costs: an exceptional costs order is granted pursuant to s 8.10(4)(b) in favour of the claimant and the insurer. I assess the total costs in favour of the claimant to be $26,633.20 inclusive of GST. I assess the total amount of costs in favour of the insurer is $18,451.36.
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