Ojala v Youi Pty Limited
[2024] NSWPIC 380
•16 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ojala v Youi Pty Limited [2024] NSWPIC 380 |
| CLAIMANT: | Sonya Ojala |
| INSURER: | Youi Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 16 July 2024 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; claimant failed to stop at a ‘give way’ sign and collided with insured driver; claimant alleged speed on behalf of the insured driver; Sibley v Kais, O’Neill v Liddle and Podrebersek v Australian Iron and Steel Pty Ltd considered; Held – claimant did not slow down prior to accident and did not keep a proper lookout; insured driver speeding prior to intersection however not satisfied ‘but for’ his speed collision would not have occurred; insured driver was not keeping proper lookout; obligation on each driver of vehicle approaching intersection to take reasonable care; claimant not wholly at fault; departure from standard of care of the reasonable person would amount to contributory negligence; claimant’s contributory negligence assessed at 80%; claimant mostly at fault for the accident; insurer to pay claimant’s expenses. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act) The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s expenses incurred in connection with the claim pursuant to section 8.10(1) of the MAI Act in the sum of $1,100 inclusive of GST in respect of the report fee paid to Gilmore Engineers in respect of the expert report of Mr Petty. 4. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act, 2017 (the MAI Act).
Mr Sonya Ojala (the claimant) was involved in a motor vehicle accident at the intersection of Moulder Street and Hill Street, Orange on 15 January 2023.
Youi Pty Limited (the insurer) is the relevant insurer liable to pay statutory benefits to the claimant under the MAI Act.
Ms Ojala completed an Application for Personal Injury Benefits on 22 January 2023.
On 18 May 2023 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis Ms Ojala was wholly or mostly at fault for the accident and on the basis she had sustained a threshold injury.
Ms Ojala sought an internal review of that decision and on 16 June 2023 in an Internal Review Decision the insurer confirmed the decision that she was wholly or mostly fault for the accident.
The insurer issued an amended liability notice dated 15 September 2023 conceding Ms Ojala had sustained a non-threshold injury but denying liability on the basis she was wholly or mostly at fault in the accident.
Ms Ojala lodged an application in the Personal Injury Commission (the Commission) on or about 14 July 2023.
In issue are the following disputes:
a. whether for the purposes of s 3.11 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant, and
b. whether for the purposes of s 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.
The claimant has referred the issue of whether she is wholly at fault to the Commission for assessment and determination in accordance with Division 7.6 of the MAI Act.
The dispute was referred to me.
During a preliminary conference on 24 May 2024 both parties agreed the dispute could be determined on the papers. In accordance with s 52 of the Personal Injury Commission Act, 2020 (PIC Act) and Procedural Direction PIC 2, I consider that it is appropriate to determine this dispute on the papers. I am satisfied the evidence and submissions provided by the parties is sufficient to determine the dispute without an assessment conference.
Also, on 24 May 2024 both parties agreed they wished me to assess contributory negligence in the event I find the claimant was not wholly at fault.
DOCUMENTS CONSIDERED
I have had regard to the following evidence:
(a) Application for personal injury benefits dated 22 January 2023;
(b) Liability notice – benefits after 26 weeks dated 18 May 2023;
(c) Internal review certificate dated 19 June 2023;
(d) Amended liability notice dated 15 September 2023;
(e) statement of Jovani Adan Rasola dated 28 April 2023;
(f) a google map showing the intersection of Moulder and Hill Streets, Orange;
(g) statement of Shylaine Lane dated 6 May 2023;
(h) a handwritten diagram of Shylaine Lane dated 25 May 2023;
(i) statement of Jeremiah Domaloy dated 19 May 2023;
(j) record of interview between Samantha Herdegen, investigator and Constable Jason Burcher dated 2 June 2023;
(k) statement of Sonja Ojala dated 28 October 2023;
(l) statement of Erin Gai Armstrong dated 13 November 2023;
(m) dashcam footage recording the accident;
(n) Quantumcorp Investigation Report including 15 photographs of the accident scene;
(o) photograph of Nissan Utility (4);
(p) photographs of Audi (4;
(q) documents produced in response to a Direction for Production by the NSW Police Force;
(r) Expert Report of Adjunct Associate Professor Robert Anderson dated 29 February 2024;
(s) Expert Report of Mr Kieran Petty dated 28 March 2024;
(t) supplementary report of Adjunct Associate Professor Robert Anderson dated 22 April 2024;
(u) insurer’s submissions undated but uploaded to the portal on 7 August 2023;
(v) insurer’s final submissions undated, and
(w) claimant’s final submissions undated.
THE RELEVANT LAW
Section 3.11 of the MAI 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 threshold 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%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
Section 3.28(1)and (2) of the MAI 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 threshold 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%.”
There is no dispute that Ms Ojala sustained non-threshold injuries.
Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Ojala is wholly or mostly at fault in respect of weekly benefits (Schedule 2, cl 3(d)), whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)) and whether statutory benefits should be reduced for her contributory negligence (Schedule 2 cl 3(g)).
THE EVIDENCE
Application for personal injury benefits
In the Application for personal injury benefits dated 22 January 2023 Ms Ojala described the accident as follows:
“I was on my day off work, driving slowly through Orange.
I remember sudden ‘bang’ from the back of my car; it happened so quick, I didn’t see it’s coming. I opened my eyes, all airbags were deployed, the automatic Audi Emergency call was activated. NSW Police and Fire truck attended”.
Ms Ojala listed her injuries as follows:
· loss of consciousness – head injury;
· ongoing headaches;
· central chest pain;
· neck pain, shoulders pain; back pain;
· knee pain, left calf stiffness, and
· psychological trauma.
Statement of Sonya Ojala
Ms Ojala provided a statement dated 28 October 2023.
She works as a mental health nurse and at the time of the accident she was working in Bathurst due to a shortage of nurses in the area. Ms Ojala drove her personal vehicle, an Audi.
On Sunday 15 January 2023 Ms Ojala had a day off work and decided to drive to Orange for the day. About 2.14pm she was travelling back to Bathurst.
Adopting the numbering in her statement Ms Ojala relevantly stated:
“9. I was travelling at approximately 40 kmph.
10. As I was approaching the intersection of Moulder Road and Hill Street, I did not notice any give-way or stop signs.
11. As I drove into the intersection I unexpectedly felt and heard a collision from the rear of my car.
12. I did not see the other car prior to the collision.
13. The Audi emergency call was activated at 2.14pm, and I managed to get myself out of the vehicle.
14. I noticed that the vehicle that collided with me was a white Ute.
20. At the time of the accident, I was well rested, not under the influence of alcohol, illicit drugs or medication.
21. Immediately following the accident, I began to experience significant headaches and persistent chest pain, neck pain, pain in both of my shoulders, and pain in both of my knees.”
Statement of Jovani Adan Rasola
Mr Jovani Rasola (insured driver) provided a statement dated 28 April 2023. He stated at the time of the accident on 15 January 2023 he was driving a Toyota Hilux (insured vehicle) owned by his partner Shylaine Lane who was seated in the front passenger seat.
Adopting the numbering in his statement Mr Rasola relevantly stated:
“16. … The accident happened at the intersection of Hill and Moulder Street, Orange NSW. The speed limit is 50 kmh. There is a Give Way sign at the intersection for traffic on Hill street to give way to traffic on Moulder street. There are single lanes for each direction of traffic on both Hill and Moulder street. Hill street has a single solid line at the Give Way sign. There are solid lines on both streets leading up to the intersection. The road where the accident occurred is straight and flat.
18. I am very familiar with this intersection. I have driven through this intersection regularly over the past 8 years.
19. The weather at the time of the accident was sunny. I could see the road clearly, visibility was good. The road is made of asphalt. The road was in good condition. The road and weather conditions did not contribute to the accident in any way.
20. I was travelling along Moulder street through the intersection with Hill street, in the direction of the intersection of Moulder street and Woodward street. Just before I approached the intersection of Moulder and Hill Streets, I looked down at the speedometer and I saw that I was travelling no faster than 48 kmh. Shylaine and I were quiet and as I approached the intersection, about 5 metres away, I looked slightly to my right and I saw a car approaching the intersection along Hill street from my right. The other vehicle was about 5 metres away from the middle of the intersection. When I look at the other car, it was directly to my right. I braked immediately and I steered the vehicle to the left, but this was not enough to avoid a collision.
21. The middle of the front of the vehicle I was driving collided with the left-side of the other vehicle, near the passenger side wheel area. The impact happened in the middle of the intersection, within my lane. I closed my eyes when our vehicles impacted. My vehicle veered towards the left and my vehicle came to a stop because I had applied the brakes. My vehicle stopped in the intersection, but closer to the opposite corner of the intersection I had been approaching. The front of my vehicle was pointing at an angle towards the left.
22. The next thing that happened is I asked Shylaine if she was okay, she said, ‘Yeah I am alright’. I got out of my vehicle and I saw the other vehicle was stopped about 7 metres away, on Hill street, within the lane she had been travelling. The other vehicle had turned 360 degrees and was facing the direction it had travelled. It had travelled through the intersection and was on Hill street.
24. A lady who witnessed the accident whist she was driving on Hill street came to me and Shylaine and told us she contacted police. I do not know her name. She also told us she had dashcam and saw that we were not at fault.”
Statement of Shylaine Lane
Ms Lane provided a statement dated 6 May 2023. She was a passenger in the Toyota utility driven by her partner Jovani Rasola at the time of the accident. Ms Lane is the registered owner of the utility.
Ms Lane stated the accident happened around 1.45pm on 15 January 2023. The weather was dry, visibility was good, the road was bitumen with clearly marked lines on the roadway and it was in good condition.
Ms Lane stated there was not much traffic as it was a Sunday. There were Give Way signs for traffic on both sides of Hill Street to give way to traffic travelling on Moulder Street.
Ms Lane stated the vehicle in which she was a passenger was travelling west on Moulder Street. Ms Lane stated:
“We were travelling west along Moulder Street and as we approached the intersection with Hill Street, I first noticed the blue car when it was close to the give way sign on Hill Street, about 1 metre away from the line on the road where the Give Way sign was, on the northern side of the intersection. I saw the vehicle continue travelling through the intersection in a southerly direction without slowing down or stopping to give way to us. … Within 3 second of first noticing the blue car, Jovani braked suddenly, very hard, to avoid a collision and I heard a big bang. My head was forced forwards and hit the dashboard and then when my head came back up I noticed my vehicle had stopped moving. I looked to my left and I saw the blue car stopped on Hill Street, had continued through the intersection and was stopped on the southern side of the intersection”.
Statement of Jeremiah Domaloy
Jeremiah Domaloy provided a statement dated 19 May 2023.
He states on Sunday 15 January 2023 around 1.30pm he was out the front of his house at 38 Hill Street, Orange pruning roses in his garden. He was facing the roadway on Hill Street.
Mr Domaloy stated:
“11. I saw a blue car driving south on Hill approaching the intersection with Moulder Street. The car drove past me. I was about 10 metres north of the intersection. The lady driving the blue car was European and when she approached the intersection, she did not slow down or stop. I did not see any brake lights on the rear of the blue vehicle as it approached the intersection. I looked away briefly before I heard a screeching sound and I looked up and saw a white ute. The white ute was travelling west on Moulder Street and was almost at the intersection. There was a tree blocking my vision of the ute after that point.
12. After the white ute emerged from the other side of the tree that was blocking my vision, I saw the left passenger side of the ute crash into the rear passenger side of the blue car. Both vehicles were in the middle of the intersection and I heard a big bang. I saw the blue car do a 180 degree turn and it was pushed backwards a little bit (possibly around 2 metres), before it hit a ‘give way’ sign on the traffic island located on the southern side of the intersection. I saw the blue car continue travelling south on Hill Street, before it came to a complete stop about 3 or 4 metres south of the intersection, in the middle of the left lane.
13. I saw the white ute travel to the corner island before it came to a complete stop on the southwestern corner of the intersection, on the footpath. It was completely off the road.
17. The lady who had been driving the blue car walked came over to us and she told the occupants of the white ute that she might have been distracted by the sun. ….
23. I knew Jovani Rasola, the driver of the white ute, before I witnessed the collision but I had only met him twice before the accident. We are both bee keepers. I do not socialise with him though and I had never met his partner Shylaine before I witnessed the accident. …”
Statement of Erin Gai Armstrong
Ms Armstrong provided a statement dated 13 November 2023. Ms Armstrong stated on 15 January 2023 around 2.30pm she was returning to her home after dropping her children at their father’s house.
Adopting the numbering in her statement Ms Armstrong relevantly stated:
“13. I was travelling west on Moulder street and I was about half a block behind a white Toyota Hilux Utility which was also travelling west on Moulder street. It was an older model utility. I saw the utility continue west through the intersection with Hill street and then I saw a dark navy coloured Audi sedan collide with the utility. The Audi had entered the intersection from the northern side of Hill street prior to the collision. The Audi did not appear to brake or slow its speed prior to the collision.
14. After the collision the utility ended up on the south western corner of the intersection and the Audi ended up on the south eastern side of the intersection, near the edge of the road, somewhere either near or on the kerb.
24. At the collision scene, there are Give Way signs at the intersection of Hill Street and Moulder street, for traffic on Hill street to give way to traffic travelling on Moulder street. I am very familiar with this intersection.
25. At the time of the collision, I was driving a blue Honda CRV. I have a Uniden dashcam mounted inside my vehicle in front of my rear vision mirror which captures footage of the roadway ahead of my vehicle. I installed the dashcam two years ago. I have supplied a copy of the dashcam footage capturing the accident, that occurred on 15 January 2023, together with this statement.”
Record of interview between Samantha Herdegen and Constable Jason Burcher
Constable Burcher participated in a record of interview with an investigator Ms Herdegan on 2 June 2023.
Constable Burcher had been with the New South Wales Police Force for three years and estimated he had attended approximately 20 motor vehicle collisions.
With Senior Constable Matthew Leggat he attended the scene of the accident at the intersection of Moulder Street and Hill Street Orange on 15 January 2023. He stated when he arrived the white ute was up on the curb and the blue Audi was further down on the eastern side of Hill Street. He reported the airbags were off, and there was damage to the front of the car. He also noticed a street sign knocked over on the western side of Hill Street and a small amount of debris on the road.
Constable Burcher confirmed it was a sunny day with a dry fully sealed road. He reported Moulder Street heading east to west is flat and Hill Street heading from North to South has a slight decline. He reported the speed limit was 50kmph.
Where there was no report of injury, no alcohol involved and all parties declined an ambulance Constable Burcher stated the accident did not meet the criteria to investigate and he left the scene after about 15 minutes.
Experts
Adjunct Associate Professor Robert Anderson, mechanical engineer
Professor Anderson, accident reconstruction expert provided a report dated 29 February 2024 at the request of the insurer.
He reviewed photographs of the damage to each vehicle. Professor Anderson noted the damage to the utility was distributed across the front, the nose of the bonnet was deformed and the bonnet was displaced backwards.
There was damage to both the left and right side of the Audi. Damage to the left side was distributed from the rear left passenger door past the wheel to the rear of the vehicle. He reported panel deformation and various scratches. The passenger-side curtain airbag was deployed. There was focal damage on the right rear quarter panel and a dislodged rear taillight assembly. The driver’s side front and rear curtain airbags were deployed.
Professor Anderson reviewed the dashcam footage to reconstruct the circumstances of the collision and the speed of each vehicle. Using the reconstruction, he calculated the speed of each vehicle based on the difference travelled between nominated positions. He concluded the utility travelled at an average speed of between 46 and 49kmph as it approached the intersection and the Audi travelled through the intersection at an average speed of about 36kmph.
Professor Anderson reported the Audi was entering the intersection 1.47 seconds before the collision. He stated given the circumstances of the crash and the eccentricity of the Audi’s approach, which was 30 degrees to the right of the utility, it would take an average of 2.0 seconds for a driver to activate the brakes from the commencement of the path intrusion, defined as the instant the Audi crossed the holding line of the intersection.
Professor Anderson noted the insured driver first saw the Audi about five metres from the middle of the intersection. He concluded this places the Audi at the entrance of the intersection when it was first sighted by the insured driver and given his speed it would have been 1.5 seconds before the collision. Noting the insured driver said he started braking before the impact, he concluded his reaction time was about 1.5 seconds. On the basis the expected brake reaction time in the circumstances was about 2.0 seconds and where the insured driver’s reaction time was less than 1.5 seconds given the timing of the claimant’s movement into the intersection, he concluded there was nothing further the insured driver could have done to avoid the collision.
Mr Kieran Petty, mechanical engineer
Mr Petty of Gilmore Engineers provided a report at the request of the claimant dated 28 March 2024.
Mr Petty was asked to determine the following:
(a) an estimation of the speed of the utility travelling on Moulder Street between the Sale Street intersection and Hill Street intersection; and
(b) if the utility was speeding, determine the difference in time it would take to reach the Hill Street intersection from the Sale Street intersection if travelling the speed limit.
He noted the speed limit on Moulder Street, Orange is 50kmph.
Mr Petty used the dashcam footage and Google Earth Pro to measure distance and slope on Moulder Street Orange.
Mr Petty concluded the distance travelled between the first power pole after the Sale Street intersection and the point of the collision was 200.62 metres. He calculated to travel that distance in 12.7 second the average speed travelled was 57kmph and to travel that distance in 12.17 seconds the average speed is 59kmph.
Mr Petty concluded if the utility had been travelling at 50kmph it would have taken 14.4 seconds to travel from that power pole to the point of the collision. Therefore, he concluded the utility would have arrived between 1.7 and 2.2 seconds later to the point of collision if it had been travelling at 50kmph.
Supplementary report of Adjunct Associate Professor Robert Anderson
Professor Anderson provided a supplementary report dated 22 April 2024 after reviewing the report of Mr Petty.
Professor Anderson agreed with Mr Petty that it was difficulty to identify the time the utility was beside the power pole on the southwestern corner of the Sale Street intersection given the significant lateral offset that exists between the pole and the roadway. He concluded that difficulty lowers confidence in the speed estimate provided by Mr Petty.
Professor Anderson reported it was easier to see the vehicle above the pedestrian crossing east of Sale Street, which was 245 metres from the point of collision. He noted the utility can be seen to be above the crossing 0.8 seconds from the start of the video. He reported the utility took approximately 16.3 seconds to travel the 245 metres to the point of collision, implying an average speed of 54kmph.
Professor Anderson states:
“In effect, Mr Petty’s instructions suggest that the reduction in the time taken to travel the 200 metres before the crash is of material importance. It is relevant to discuss whether this choice is meaningful; in my opinion, there is no particular reason to consider the speed of the insured vehicle in the 12.1. or 12.7 seconds before the impact and the 200 metres before the point of collision (rather than, say, 50, 100 or 300 metres). Mr Petty’s findings are not relevant to the opportunity the insured had to avoid the crash once it was apparent to him the claimant failed to stop at the intersection.”
Professor Anderson concludes the most appropriate approach is to consider the part of the crash sequence that specifically relates to the opportunity that one or both parties had to avoid the collision which he argues is the point the insured driver was in a position to see the claimant was not stopping at the intersection.
Professor Anderson reported the utility was about 25 metres from the intersection when the Audi approached the stop line of Hill Street, about two seconds before the collision. This was the point at which the insured driver observed the claimant was not stopping at the intersection. He argues that based on his earlier analysis the utility’s average speed over the 25 metres was between 46 and 49kmph.
SUBMISSIONS
The insurer’s submissions
The insurer notes that following service of the dashcam footage the issues in dispute narrowed in that the claimant’s argument now focuses on the assertion the insurer driver was also at fault due to excess speed.
The insurer notes that the relevant principles are stated in 5B of the Civil Liability Act, 2022 (CLA) which provides:
“(1) 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), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) 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,
(d) the social utility of the activity that creates the risk of harm.”
The insurer refers to 5C which provides that in proceedings relating to liability for negligence—
“(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
The insurer refers to the decision in Sibley v Kais [1967] HCA 43 and more recently in O’Neill v Liddle [2012] NSWCA 267 where the Court noted that traffic rules were not definitive of the duties of drivers.
The High Court stated in Sibley at [427]:
“These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. 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 their 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 the particular circumstances of the case.
Therefore, it is, in our opinion, rightly said that the '“right hand rule” is not the be all and end all in relation to questions of civil responsibility’. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or form his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”
In O’Neill the New South Wales Court of Appeal followed the decision in Sibley and found the appellant had failed to keep a proper lookout where the respondent whose view of the appellant had been obscured by glare from the sun failed to give way to the appellant at an intersection.
In Duncan v The Nominal Defendant [2013] NSWDC 117 the plaintiff saw the other vehicle approaching the intersection and, the court held, reasonably, initially presumed it would not simply drive through recklessly. Haesler DJC concluded at [47]:
““In all the circumstances the duty owed by the Plaintiff was to avoid a collision or minimise its impact when she, or more correctly, a reasonable person in her position, realised a collision was about to occur. She did so. She had no duty to brake or slow significantly when travelling on a major thoroughfare against the possibility a car approaching on a minor road would act with what could only be regarded as criminal irresponsibility.”
The insurer submits that in light of Sibley and O’Neill the question is whether the insured driver could bring his vehicle to a halt or otherwise avoid an impact.
The insurer notes the claimant asserts the insured driver was speeding prior to the collision and but for his speed he could have avoided the accident by simply arriving at the point of collision at a later point in time. However, the insurer submits the speed of the insured vehicle is only relevant from what Professor Anderson calls the “critical moment” being when it was apparent the claimant was entering the intersection with no intention of giving way. It is argued it is at this point that the insured driver’s control of his vehicle may have had some bearing on the occurrence of the collision.
The insurer submits that in Sibley, O’Neill and Duncan the courts examined the driver’s actions as they approached the intersection and considered whether the driver had their vehicle so far in hand that it could be brought to a halt or otherwise avoid a collision.
The insurer submits the pre-intersection speed depicted in the dashcam is not relevant to determining the fault of the insured driver, but what is relevant is what he was doing when he or a reasonable person in his position appreciated a collision was about to occur.
The insurer submits that s 5C(b) of the CLA means that the allegation that the insurer driver could have done something differently, that is, driven more slowly between intersections does not of itself give rise to or affect liability.
In any event the insurer submits the speed analysis of Mr Petty should be given no weight where:
(a) it is dependent on a measurement taken from Google Earth Pro, that it is 200.62 metres from a power pole after the preceding intersection to the point of collision;
(b) the insured vehicle is approximately in line with the power pole at somewhere between 4.47 and 5 seconds into the footage;
(c) the collision happens at about 17.12 seconds into the footage;
(d) therefore, the insured vehicle travelled at approximately 57kmph between the intersections, and
(e) it would have arrived 1.7 to 2.2 second later had it been travelling at 50kmph.
The insurer also points out that Mr Petty does not say that the delayed arrival would have prevented the accident from occurring but clearly this is the inference the claimant seeks to make.
The insurer relies upon the opinion of Professor Anderson. At paragraph 5.2 of his supplementary report, he suggests that other street markings enable a more accurate analysis and arrives at an average speed of 54kmph, suggesting Mr Petty has overestimated the insured’s average speed.
The insurer submit the analysis of Mr Petty lacks precision and in any event is not meaningful where it could have been measured at say 50, 100 or 300 metres and where there is a possibility the speed was higher at the start of the measured distance but slowed near the intersection.
The insurer submits the simulation of Professor Anderson suggests the insured’s speed was between about 46 and 49kmph as he approached the intersection. This is consistent with the evidence of Mr Rasola who says he checked his speedometer as he approached the intersection and saw he was travelling at no more than 48kmph.
Professor Anderson states 1.47 seconds before the collision the claimant’s vehicle entered the intersection. At this point the insured driver might have been expected to react. Again, this is consistent with the evidence of Mr Rasola who stated he first saw the claimant’s vehicle about five metres from the intersection, placing it at the entrance of the intersection, which would have given him 1.5 seconds before the collision. It is evident from his statement that Mr Rasola did react at the point at which he saw the claimant’s vehicle. However, on Professor Anderson’s analysis it would have taken an average of 2.0 seconds for a driver to activate the brakes from the commencement of the path intrusion.
The insurer submits the opinion of Dr Anderson should be preferred. Whilst the insured driver’s speed between intersections may have been momentarily above the prescribed speed limit he was entitled to the general presumption that other drivers will not emerge suddenly. In any event the insurer submits the insured had slowed to between 47 and 49kmph by the time he entered the intersection. Whilst he must be alert to the unpredictable he was not duty bound to anticipate such behaviour.
The insurer submits that if I was to find that the insured driver was a concurrent wrongdoer by virtue of his speed, it would not be just and equitable to apportion liability of more than 5% to the insured driver.
The claimant’s submissions
Ms Ojala submits the evidence of the eyewitness Jeremiah Domaloy should be disregarded where he admitted in his statement that there was a tree blocking his view of the intersection and that he looked away immediately prior to the collision. She submits he did not see the brake lights was because he was looking at his roses and not because she did not slow down.
Ms Ojala submits I should not give any weight to the statement of Ms Armstrong that Ms Ojala did not brake or slow down prior to the collision where arguably Ms Armstrong could not see what Ms Ojala did or did not do prior to the collision.
Ms Ojala submits she disagrees with the submission by the insurer that the dashcam footage corroborates the witness statements that she did not slow down at all before the collision.
Ms Ojala submits that the insurer only focuses on what the insured driver could have done to avoid the collision from the point when she crossed the give way line. Ms Ojala submits consistent with the decisions in Sibley, O’Neill and Duncan the insured driver in exercising his duty of care should have followed the legal speed limit and kept a proper lookout as he approached the intersection, not just from the point when Ms Ojala crossed the give way line.
Ms Ojala disagrees with the insurer’s analysis of Mr Petty’s report. She states the insured driver did not follow the road rules as he approached the intersection and had he done so the accident would have been avoided. She also relies upon the supplementary report of Professor Anderson who suggested the insured vehicle may have reached a speed of 54kmph as he approached the intersection. Ms Ojala quite rightly submits there is no evidence to support the assertion that the insured driver was driving at a higher speed at the start of the measured distance slowing closer to the prescribed limit as he approached the intersection.
Ms Ojala also states she did not see the insured vehicle and should not be found liable for negligence. In the alternative she submits it was the failure of the insured driver to observe the legal speed limit as he approached the intersection which caused the accident and the injury sustained by Ms Ojala. Ms Ojala submits that the insured driver contributed more than 40% to the accident in failing to observe the speed limit as he approached the intersection.
FINDINGS
Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.[1]
[1] Australian Broadcasting Tribunal v Bond (1990) CLR 321; [1990] HCA 33 at [367].
The following facts are not in dispute:
(a) the accident occurred at approximately 2.14pm on 15 January 2023;
(b) the weather was clear and the road was dry and sealed;
(c) Hill Street and Moulder Street were subject to 50kmph speed limits;
(d) Hill and Moulder Street have single lanes for traffic in both directions;
(e) the accident occurred at the intersection of Moulder Street and Hill Street, Orange;
(f) Moulder Street travels roughly east-west through Orange whilst Hill Street travels roughly north-south;
(g) there was a Give Way Sign facing the claimant in Hill Street as she approached the intersection with Moulder Street.;
(h) there is a single solid line at the Give Way sign in Hill Street at the intersection with Moulder Street;
(i) the insured vehicle was a white Toyota Hilux utility driven by Mr Rasola;
(j) Ms Lane was a front seat passenger in the insured vehicle;
(k) the claimant was the driver of a blue Audi sedan;
(l) the claimant’s vehicle entered the intersection from Hill Street in a southerly direction;
(m) the claimant’s vehicle entered the intersection at about 40kmh, and
(n) the claimant did not notice the Give Way signs or see the insured vehicle prior to the collision.
Facts in dispute
Whether Ms Ojala slowed down before the collision
Whilst the claimant argues that there is no legitimate way of drawing a conclusion that she did not slow down at all before the collision, it is significant that Ms Ojala in her statement does not say she applied the brakes or slowed down. Indeed, it is clear from her statement that she did not see the Give Way signs or the insured vehicle prior to the collision.
Mr Dormalay’s evidence simply establishes that Ms Ojala did not slow down or brake as she approached the intersection. He looked away shortly before the collision and does not comment on whether Ms Ojala slowed down or braked immediately before the collision.
I accept that Ms Armstrong may not have been in a position to comment on the speed of Ms Ojala’s vehicle where she was half a block behind the insured vehicle although no doubt her recollection has been influenced by the dashcam footage in her possession. In concluding that Ms Ojala did not slow down as she approached the intersection before the collision I do not propose to rely on that evidence from Ms Armstrong.
Whilst I am cognisant of the need to use caution when considering photographic evidence, the dashcam footage does not seem to demonstrate any change in speed.[2] Furthermore that evidence has been analysed by both experts, neither of whom suggested it demonstrated any reduction in speed by the claimant prior to the collision. Not only is this consistent with the evidence of the insured driver and his passenger Ms Lane but it is notable that Ms Ojala herself has not given evidence of any reduction in her speed as she entered the intersection prior to the collision.
[2] Blacktown City Council v Hocking [20098] NSWCA 144.
I am satisfied that Ms Ojala did not slow down as she either approached the intersection or as she entered the intersection prior to the collision.
Whilst there is no suggestion Ms Ojala was driving at an excessive speed prior to the accident, indeed Professor Anderson assessed it at 36kmph, it is clear she did not keep a proper lookout where she did not see either the give way sign or the insured vehicle prior to the accident.
Furthermore, notwithstanding the fact that she was entering an intersection Ms Ojala did not reduce her speed with a view to ascertaining her path through the intersection was clear.
Whether the insured driver was driving at an excessive speed
Ms Ojala is not able to comment on whether the insured driver was driving at an excessive speed where she did not see his vehicle at all before the accident. It is apparent that Ms Ojala believes Mr Rasola was driving at speed because to her mind that can be the only explanation for her failure to see his vehicle before the accident.
The evidence of the insured driver is that as he approached the intersection he looked down at his speedometer and saw he was travelling no faster than 48kmph.
I agree with the insurer it is difficult to be confident about the calculation of speed arrived at by Mr Petty where it is difficult to be exact about the time the insured vehicle was beside the power pole from which Mr Petty measured the distance travelled.
Professor Anderson suggested based on a measurement from the pedestrian crossing east of Sale Street to the point of the collision the insured vehicle may have been travelling at an average speed of 54kmph.
However, on the basis the insured vehicle was about 25 metres from the intersection when Ms Ojala’s vehicle approached the stop line of Hill Street, Professor Anderson calculated the insured vehicle at the time of the collision was travelling an average speed of between 46 and 49kmph.
I am satisfied on the evidence that the insured vehicle was travelling at an average speed of between 46 and 49kmph at the time of the accident although I also accept he may have reached a speed of approximately 54kmph, although that speed was not maintained, in the approach to the intersection based on a measurement from the pedestrian crossing east of Sale Street.
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
There is no dispute Ms Ojala was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The first question is whether the claimant was wholly at fault.
In Manley v Alexander [2005] HCA 79 (Manley), the majority in the High Court stated at [12]:
“...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 his happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”
and
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.”
The reasonable care duty was reiterated in Vairy v Wong Shire Council.[3] The Court stated 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.
[3] Vairy v Wyong Shire Council [2005] HCA 34, 59 ALJR 492.
I find Ms Ojala was negligent in failing to keep a proper lookout. If she had done so she would have observed the Give Way sign and the insured vehicle in sufficient time to stop, swerve or otherwise avoid the collision.
I am not satisfied but for the speed of the insured vehicle the collision would not have occurred, having regard to the speed of the insured vehicle at the time of the collision.
However, I am not satisfied that it is simply a matter of assessing the reaction of the insured driver from the time he first saw the claimant’s vehicle. Mr Rasola asserted he only saw the claimant’s vehicle when it was about five metres from the intersection which Professor Anderson concluded placed the insured vehicle at the entrance of the intersection. Arguably, if he was keeping a proper lookout the insured driver should have observed the claimant’s vehicle before it reached the stop line of Hill Street. In accordance with the line of authority in Sibley and O’Neill the obligation of each driver of two vehicles approaching an intersection is to take reasonable care. The insured driver was not entitled to rely upon the expectation that Ms Ojala would give way in accordance with her obligations under the road rules.
I am not persuaded the decision in Duncan assists the insurer where the insured driver was not travelling on a major thoroughfare and where it could not possibly be argued that the conduct of the claimant in failing to give way amounted to criminal irresponsibility.
However, it is clear from decisions such as Manley and Sibley that negligence by another does not extinguish the insured driver’s obligation to exercise a degree of care in the circumstances.
I find had the insured driver been keeping a proper lookout he should have observed the claimant’s vehicle at a point in time where he was able to bring his vehicle to a halt or otherwise avoid the collision.
Therefore, I do not find Ms Ojala to be wholly at fault.
However, I am satisfied Ms Ojala did contribute to the cause of the accident and that her contribution to the accident was much greater than that of the insured driver. The risk of harm was foreseeable and a reasonable person in her position ought to have exercised reasonable care for her own safety by keeping a proper lookout, by slowing down in her approach to the intersection and by giving way to vehicles travelling on Moulder Street, particularly given the presence of the Give Way sign.
What is the degree of that contributory negligence, keeping in mind that a finding of contributory negligence greater than 61% means that the claimant was mostly at fault.
In Podrebersek v Australian Iron and Steel[4] the High Court at [10] stated:
“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 …and cases there cited. 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.”
[4] (1985) 59 ALR 529.
I find that the degree of departure from the standard of care of Ms Ojala by reason of her failure to keep a proper lookout, to slow down and to give way to the insured vehicle was significant. Weighing up the comparison of culpability as per Podrebersek I am satisfied that the degree of departure from the standard of the reasonable person displayed by Ms Ojala in the circumstances would amount to a finding of contributory negligence of 80%.
I find Ms Ojala was mostly at fault in that her contributory negligence was greater than 61%.
CONCLUSION
For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.
For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.
I assess the claimant’s contributory negligence at 80%.
COSTS
Success is not a prerequisite to the claimant recovering regulated costs from the insurer. The claimant is entitled to recover from the insurer reasonable and necessary costs, and other costs and expenses incurred by the claimant.[5]
[5] s 8.10(1) MAI Act.
The insurer is to pay the claimant’s expenses incurred in connection with the claim pursuant to s 8.10(1) of the MAI Act in the sum of $1,100 inclusive of GST in respect of the report fee paid to Gilmore Engineers in respect of the expert report of Mr Petty.
In response to my enquiry as to whether Ms Ojala incurred any legal costs and expenses including the fee paid to Mr Petty for his report, Ms Ojala not only uploaded an invoice for the expert report but also her current medical certificate. I recommend Ms Ojala obtain legal advice as to the effect of this decision and in relation to any additional rights she may have under the MAI Act.
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