O'Donnell v QBE Insurance (Australia) Limited
[2022] NSWPIC 597
•31 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | O'Donnell v QBE Insurance (Australia) Limited [2022] NSWPIC 597 |
| Claimant: | John O'Donnell |
| insurer: | QBE Insurance (Australia) Limited |
| Member: | Terence Stern |
| DATE OF DECISION: | 31 October 2022 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant a motorcyclist; following a four wheel drive towing a horse float; insured vehicle slowed to turn right; dispute as to whether the braking lights of the horse float were functioning; claimant braked heavily causing loss of control of the motorcycle and it to fall on to the road; claimant sustained injuries; Sdrolias v Allianz Australia Insurance Ltd considered; Held – claimant not mostly at fault; no legal costs; claimant self-represented. |
Background
This determination relates to a dispute between the parties as to whether the insurer is entitled to reduce or terminate weekly payments of statutory benefits after 26 weeks on the basis of contributory negligence, pursuant to s 3.38 of the Motor Accident Injuries Act 2017(MAI Act).
John O’Donnell (the Claimant) made an Application for Personal Injury Benefits APIB on 24 March 2022. He was 69 years old when he was injured in a motor vehicle accident (the Accident) which he describes in the APIB as follows:
“Travelling east at about 90k/h in a 90KPH area. Noticed a horse float also travelling east. No brake lights illuminated on the trailer. I realized that the vehicle was stopping fast. I applied the brakes on my motorcycle and the front wheel locked up causing the bike to fall to the roadway and I was thrown off to my right side.”
The Claimant was injured in the Accident.
On 22 June 2022, the Insurer issued a Liability Notice of Benefits after 26 weeks denying liability on the basis that the Claimant was wholly or mostly at fault.
At the internal review on 17 August 2022, the Insurer confirmed its liability decision.
I held a telephone conference on 29 September 2022. Given that the Claimant is not legally represented and given that he was relying heavily on his own opinion evidence as to the cause of the Accident but it was fair to give the Claimant an opportunity to obtain evidence from a traffic reconstruction expert given that the Claimant had not been aware that there might well be difficulties in seeking to give opinion evidence himself.
The Claimant has not been able to engage a solicitor or other legal representative to assist him with respect to liability.
Documents considered
I have considered all of the documents on the Portal and have referred to them as relevant.
Legislative framework
In making my decision I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW) (‘the Act’);
· Motor Accident Guidelines 2017; and
· Civil Liability Act 2002.
Section 3.11 of the Act states:
“(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%.
10. Section 3.28 of the Act states:
“(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.”
11. Section 5R of the Civil Liability Act 2002 provides:
‘5RStandard of contributory negligence
(2) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm
(3) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time’
Case Law
12. The Common Law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
13. Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
14. In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:
‘......an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.’
15. At 34 his Honour referred to the judgment of the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man......and the relative importance of the acts of the parties in causing the damage.......it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’
16. In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
‘[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ......
[117] ...the High Court held in Sibley v Kais [1967] HCA 43......that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 his Honour said:
‘The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.’
17. His Honour continued:
‘[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander .....reasonable attention to all that is happening on or near the roadway that may present a source of danger. That in turn requires ‘simultaneous attention to, and consideration, of a number of different features of what is already or may later come to be, ahead of the vehicles’ path.
[36] The driver is not required......to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event......the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] ....nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path.....
18. At [121] referring to the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182:
‘15. A driver is entitled to assume that others will observe the rules of the road. .......as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether, in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required......’
19. McHugh J Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 also held that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case:
“Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 at [11].”
20. In Manley v Alexander [2005] HCA 79 Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway... at 4.00 am is... remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
21. In Varga v Galea [2011] NSWCA 76 McColl JA delivered the judgement of the Court. She said at [10]:
“Section 5E of the 2002 Act provides that in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to causation. I would understand "plaintiff" to be read as meaning, where appropriate, the party propounding the issue of negligence, in this case, the respondents. This is made clear, insofar as the issue of contributory negligence is concerned...”
SUBMISSIONS
The Insurer’s Submissions
22. I refer to the Submissions by paragraph number:
Refers to the Ambulance Report of 20 March 2022 in which the Claimant is said to have stated that he applied his brakes suddenly, such that his front brakes locked up and he and the motorbike fell onto the right hand side, slid and rolled 3 times.
Refers to the Police Report of 20 June 2022. Claimant was riding his motorbike East on Old Bar Road, Pampoolah at no more than 90km/h behind a vehicle towing a horse float which vehicle was slowing down in preparation to make a right hand turn into 186 Old Bar Road.
The driver of the vehicle is said to have looked in his rear vision mirror and observed the motorcycle rider brake heavily in an attempt to avoid a collision with the rear of the horse float.
Claimant is alleged to have told the Police that he saw he was approaching the horse float ahead quickly, realised the horse float was slowing down to a stop. Further, he stated that there were no working brake lights or tail lights working on the horse float.
As a result the Claimant’s attempt to slow down by applying the motorcycles brake caused the ABS braking system to lock and he lost control of the motorcycle as it fell onto the road.
There was no evidence to support that the Claimant was exceeding the speed limit. The Police were unable to confirm if the brake and tail lights were operating.
[13.2]Constable Skellern interviewed the Claimant on 20 March 2022 when the Claimant made the following statements:
·He saw the vehicle in front, a four-wheel drive and horse trailer, which was more than 150 metres in front when he first noticed it.
·He noticed the vehicle veer to the right as though it was about to make a turn.
·He saw no brake lights or indicators at this time.
·He applied the brakes of his motorcycle firmly (emphasis added) front and back. The front brake immediately locked and caused the bike to fall on its right side catching his leg between the bike and the roadway. Then, the bike and the claimant slid independently after that, and neither the claimant or the bike collided with the vehicle in front stopping a fair distance behind the vehicle in front.
[17]The Claimant was required to brake firmly, heavily, or suddenly and it follows that he was not travelling at a safe distance behind the other vehicle.
[18]In any event, if he was travelling at a safe distance, he braked too heavily for the conditions.
[19]On the evidence, the Accident was caused by the Claimant in the way he used and operated his motorcycle.
[19]There is no evidence of a malfunction in the ABS system of the motorcycle.
[21]If the ABS system was faulty then the Claimant failed to adequately maintain the ABS system.
Claimant’s Submissions
23. The Claimant’s Submission is a mixture of a statement of facts and opinion. He said he was riding his motorcycle East on Old Bar Road at 90 kph. When he passed number 159 he noticed a four wheel drive towing a horse float in excess of 150 metres in front of him he observed the vehicle commencing a right hand turn into the driveway of number 186. He noticed that the float did not have any brake lights or indicators illuminated. He commenced to brake his motorcycle firmly and immediately the front wheel locked causing the motorcycle to fall heavily to the right and to slide down the roadway. There was no collision.
24. The Claimant then describes the section of the roadway noting that where the accident happened it was straight with 100 metres clear vision and that there was a dark skid mark left on the road by the front wheel of his motorcycle which measured 9 meters with a following YAW mark of 3 metres sliding to the left.
25. This section of the Submission is observational evidence and is admissible. To comment about the total braking time is the Claimant’s opinion and is not admissible.
26. The Claimant’s opinion evidence as to the travelling distance of 24.5 metres per second is opinion evidence and not admissible. The evidence as to the following distance gap is not admissible. The Claimant’s evidence as to the accepted braking distance from 90 kph of approximately 55 metres and that he could stop his motorcycle in a total distance of 81 metres is not admissible. It is opinion. The calculation the Claimant presents is not admissible. It is his opinion.
27. The Claimant then goes on to describe his motor vehicle. The first paragraph is a statement of a factual description of the motorcycle and its standard to braking specifications. Given that he was riding the bike regularly, it is reasonable that he can describe as a matter of fact how the braking system actually works as he would have observed it on a daily basis. Further he would have observed how the suspension and the anti-dive mechanism works.
28. The Claimant says at the time he applied the brakes, the front wheel locked totally for a period of approximately 0.5 second causing the motorcycle to immediately fall to the right. He further says that only the front brake locked as there was no skid mark on the roadway from the rear brake.
29. This evidence is factual evidence and not opinion evidence.
30. The Claimant then gives some opinion evidence as to the failure of the anti-locking system causing the accident.
31. The Claimant then goes on to set out his experience riding motorcycles. He obviously has very extensive experience not only riding motorcycles but giving expert evidence. The fact however is that it is not appropriate for a person to give opinion evidence in their own case.
Consideration
32. The issue of fault is to be determined on the balance of probabilities but there is nothing in the legislation that requires me to determine the precise degree of fault if I come to a view on the balance of probabilities that a proper apportionment of fault puts the Claimant at less than 61%.
33. In determining the degree of fault on the balance of probabilities, I have taken into consideration the decision of the Court of the Appeal in the case of Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20.
34. In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
35. McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
36. Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
37. The Claimant has stated that there were no lights illuminated on the rear of the horse float and consequently there was no light indicating a right-hand turn.
38. The Claimant is entitled to have the benefit of his long experience as a responsible rider of a motorcycle and I make the following findings of fact all on the balance of probabilities:
i.The Claimant was riding his motorbike at about 90km/h.
ii.He did not observe any lights illuminated on the rear of the horse trailer.
iii.In particular, there was no light indicating a right-hand turn.
iv.Had there been lights illuminated the Claimant would have braked sooner and not as heavily.
v.Confining myself only to the factual evidence from the Claimant, including his observations, the apportionment of fault is well under 61% and probably well under 50%.
39. It follows that I find that this was not an accident where for the purpose of the statute the Claimant was wholly at fault (61% or more) or mostly at fault.
Determination
40. My determination of the Miscellaneous Claim Dispute is that this accident was not caused mostly or wholly by the fault of the Claimant for the purposes of sections 3.11 and 3.2A of the MAI Act.
Legal costs
41. The Claimant was unrepresented, there is therefore no requirement to determine legal costs.
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