Sarcasmo v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sarcasmo v AAI Limited t/as GIO [2021] NSWPIC 337
CLAIMANT:	Jake Sarcasmo
INSURER:	AAI Limited t/as GIO
MEMBER:	Brett Williams
DATE OF DECISION:	7 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous assessment matter; the claimant was crossing the road at intersection on his electric scooter; insured driver was travelling in a westerly direction along Captain Cook Drive approaching the intersection; collision between the claimant and the insured driver occurred at the intersection; at all times when the claimant was crossing the road he had a red ‘don’t walk’ pedestrian signal facing him; speed limit 60km/h; insured driver travelling below the speed limit; insured driver faced with a solid green light; claimant’s scooter collided with the driver’s side of the insured driver’s vehicle; whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Held - insured driver was keeping a proper lookout; insured driver did not breach the duty of care owed; accident not caused by the fault of the insured driver; accident caused wholly by the fault of the claimant.
DETERMINATIONS MADE:	1.For the purposes of section 3.11 the motor accident was caused wholly by the fault of the claimant. 2.For the purposes of section 3.28 the motor accident was caused wholly by the fault of the claimant. 3.Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act and Regulation 2017 is $1,660 plus GST. .

Reasons for Decision

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

Background

On 12 May 2020 at approximately 1.45 pm, Jake Sarcasmo (the claimant) was crossing the road at the intersection of Taren Point Road and Captain Cook Drive, Caringbah on his electric scooter. The insured driver was travelling in a westerly direction along Captain Cook Drive approaching the intersection of Taren Point Road. A collision between the claimant and the insured driver occurred at the intersection (the accident).
The claimant submitted an application for personal injury benefits to the insurer dated 20 May 2020. The insurer accepted liability to pay statutory benefits for the first 26 weeks after the accident. By letter dated 26 August 2020 the insurer denied liability to pay statutory benefits after the first 26 weeks on the basis that the accident was caused mostly by the fault of the claimant, the insurer having assessed the claimant’s contributory negligence at 75%. At the claimant’s request an internal review of this decision was conducted. On 19 November 2020 the internal reviewer found that the accident had been caused wholly by the fault of the claimant. As a consequence of this decision the claimant was not entitled to weekly payments of statutory benefits[1] or benefits for treatment and care[2] more than 26 weeks after the accident.
[1] s 3.11(1)(a) Motor Accident Injuries Act 2017 (MAI Act).
[2] s 3.28(1)(a) MAI Act.
The claimant commenced these proceedings in the Dispute Resolution Service on 1 December 2020. He argues that the accident was caused neither wholly nor mostly by his fault. The dispute constitutes a miscellaneous assessment matter.[3]
[3] Sch 2 cl 3(n).

Transitional matters

The Personal Injury Commission (the PIC) was established on 1 March 2021. These proceedings were commenced on 1 December 2020, before the PIC was established. In accordance with Sch 1 Pt 2 cl 14A and cl 14B of the Personal Injury Commission Act 2020 (the PIC Act), the proceedings constitute pending proceedings and pre-establishment proceedings that I am empowered to determine.

Assessment conference

An assessment conference was held on 3 August 2021. Mr Cleary, of counsel, instructed by Ms Furfaro appeared for the claimant. Ms Papaspiros appeared for the insurer. Neither the claimant nor the insured driver gave evidence at the assessment.
At the assessment conference the claimant sought to rely on documents provided by the NSW Police in response to a GIPA application. That material had not previously been served on the insurer or lodged with the Commission. I allowed that material into evidence subject to giving the insurer an opportunity to consider it and provide further written submissions in response.
Prior to the assessment conference the parties lodged an agreed statement of facts dated 23 July 2021. The parties agreed that at the time of the accident:
(a)   The lights for cars turning right from Captain Cook Drive onto Taren Point Road were red.
(b)   The lights for cars proceeding straight along Captain Cook Drive were green.
(c)   The insured driver was travelling in lane 2 of 4.

(d)   The claimant was wearing a helmet.
(e)   The speed limit along Captain Cook Drive was 60 km/h.
(f)    The claimant was crossing a pedestrian crossing on Captain Cook Drive.
(g)   The claimant was on the scooter whilst crossing the road.
(h)   There were three to four cars in each of lanes 3 and 4 waiting to turn right onto Taren Point Rd.

At the assessment conference the following additional facts were agreed by the parties:
(a)   At all times when the claimant was crossing Captain Cook Drive he had a red ‘don’t walk’ pedestrian signal facing him.
(b)   The insured driver did not see the claimant at any time before the accident.
(c)   The only evidence in relation to the point at which the claimant came into contact with the insured’s vehicle is from the insured driver. This evidence is contained in her statement to M & A Investigations dated 19 June 2020 and in the Police records.
(d)   At the time of the accident the insured driver was travelling at 50 km/h.
(e)   There is no evidence about the speed at which the claimant was travelling on his scooter immediately before, or at the time of, the accident.

The agreement as to the insured driver’s speed was subject to the insurer having the opportunity to consider the material from the NSW Police that was provided by the claimant at the assessment conference.
Mr Cleary conceded that the insured driver’s ability to see the claimant was partly obscured by the presence of cars in lanes 3 and 4 on Captain Cook Drive.
Mr Cleary also conceded, on the claimant’s behalf, that the claimant was at fault for the accident. In those circumstances, both parties agreed that, for the purposes of s 3.11 and s 3.28, the critical matters for me to determine are:

(a) Whether the accident was caused by the fault of the insured driver; and
(b) If so, whether the accident was caused mostly by the fault of the claimant.
Both parties agreed that if I found that the accident was not caused by the fault of the insured driver, I would also find that the accident was caused wholly by the fault of the claimant.

Evidence

In his application for personal injury benefits the claimant records that:
“I don’t remember what happened, the last I recall is I was at a set of lights”
There is a record of conversation between Danny Scott of M&A Investigations and Constable Thomas of the Sutherland LAC on 3 July 2020. Constable Thomas interviewed the claimant at St George Hospital on 7 June 2020. The claimant provided the following account of the accident to Constable Thomas:
“I was riding my scooter along th [sic] footpath Taren Point Road, Taren Point and I stopped at the intersection of Captain Cook Drive and pushed the pedestrian button to cross over. The cars turning right onto Taren Point Road from Captain Cook Drive had a red arrow but the cars going straight through the intersection from Captain Cook Drive had a green light. I missed [sic] judged this thinking all the cars were stopping and I proceeded to travel through the intersection on the pedestrian crossing. I do not remember what happened after this. The next thing I remember is having my face down on the road.”
The claimant responded “no comment” to the questions the Constable asked him about the class of licence he held, whether his licence was expired or suspended, whether he had any drugs or alcohol leading to the collision, whether his scooter was registered or who owned the scooter.
The claimant told Constable Thomas that he was wearing a black helmet at the time of the accident. He said he was intending to travel to Caringbah Station.
The Constable made reference to statements from witnesses to the accident. The names of the witnesses and their evidence is not included in the transcript of the conversation between the Constable and Mr Scott, the Constable not being willing to identify the witnesses. Constable Thomas saw no skid marks at the scene. No measurements or diagrams of the scene were made. Constable Thomas considered that the claimant was at fault for the accident.
The claimant relies on his signed statement dated 2 February 2021. He provides the following relevant evidence in the statement:
“1.      On 12 May 2020 at approximately 1:45pm, I was travelling on my electric scooter while crossing an intersection when I was involved in a motor vehicle accident.
2.     I approached the intersection of Captain Cook Road and Tarren Point Road and pushed the pedestrian button to cross the road.
3.     I passed the first two lanes of the intersection where vehicles would have been travelling in an easterly direction.
4.     I passed the island in the middle of the road and proceeded to cross the second half of the road where vehicles now would have been travelling in a westerly direction.
5.     There were vehicles stationary in lanes 3 and 4. I saw this line of stationary vehicles at the set of traffic lights which led me to believe the path was clear for me to continue to cross the second half of the road.
6.     This is my last memory before the accident occurred.
7.     I do not recall the moment of the collision.
8.     My next memory was waking up on the side of the road being attended to.
9.     I later learnt that the insured driver was travelling in lane 2 of 4 and collided into me as she proceeded through the intersection.
10.     An Ambulance attended the scene of the accident and transported me to St George Hospital where I underwent an ORIF of both my left femur and ribs. I was discharged approximately 7 weeks later.
11.     The Police also attended the scene of the accident and the event number E74718834 was issued.”
The claimant also relies on his updated statement of 9 July 2021. The claimant states that on the day of the accident he did not consume any drugs or alcohol. He says he was wearing a helmet when the accident occurred. He states that he was riding his scooter along the footpath of Taren Point Road and attempted to cross the intersection on Captain Cook Drive, Caringbah. It was a pedestrian crossing with lights. A marked aerial photograph, depicting his direction of travel, is annexed to the statement.
Constable Thomas interviewed the insured driver at the scene of the accident. She told him that she was travelling at about 50 km/h. The traffic lights facing her were green. She did not see the claimant approach her vehicle. She believed that the claimant collided with the driver’s door. She noted that the windscreen was broken. She said she didn’t know how fast the scooter was travelling. The light for vehicles turning from Captain Cook Drive into Taren Point road was red.
The insured driver provided a statement to M & A Investigations dated 19 June 2020. She states that on the day of the accident she was travelling in a westerly direction along Captain Cook Drive, Caringbah. There are four marked lanes headed west and three lanes going east. The speed limit is 60 km/h. There is a median strip and traffic control signals at the intersection of Captain Cook Drive and Taren Point Road. Traffic flow was medium. She approached the intersection in number two lane at a speed of 50 km/h. Weather conditions were fine and the roadway was dry. As she approached the intersection she was looking directly ahead. She saw that the traffic lights were green. The lane she was travelling in was marked for vehicles to travel straight ahead and to make a right turn. Lanes three and four were only for vehicles to make a right hand turn onto Taren Point Road. There was a red arrow at that intersection and a line of stationary vehicles in lanes three and four. There were about three or four vehicles stationary in lanes three and four. As she approached the intersection there were no vehicles immediately travelling in her lane in front of her. She maintained a view out the front of her vehicle and could see that the traffic lights remained green. As she approached the stop line she was looking directly ahead and travelling at 50 km/h she felt an impact and heard a loud noise as she was travelling across the pedestrian crossing on the eastern side of the intersection. On feeling the impact she braked, drove through the intersection and parked on the left side of the roadway. She saw the claimant laying on the roadway nearly in the middle of the southbound lanes of Taren Point Road. She also saw his scooter. As a consequence of the collision her vehicle sustained damage to the middle of the offside.
The claimant relies on documents provided by NSW Police in response to a GIPA[4] application. The Police documents include entries in Constable Thomas’ and Constable Carter’s NSW Police notebooks relating to the accident, together with a NSW Police COPS report. The report identifies three witnesses to the accident. In addition to statements from the three witnesses, the Police documents include the statements taken from the claimant[5] and the insured driver[6] that are summarised earlier in these reasons[7]. The following is a summary of the accounts provided by the three witnesses:
Witness 1[8] was stationary in lane 3 of 4 on Captain Cook Drive waiting to turn right into Taren Point Road. They were the front vehicle at the lights faced with a red light. They saw an electric scooter come across the pedestrian island and proceed across the pedestrian crossing which was a red light for pedestrians. After the man on the scooter came past a vehicle in the lane next to them hit him. There was nothing obstructing the view of the collision.

Witness 2[9] was travelling westbound on Captain Cook Drive behind the insured driver. As the witness approached the intersection they saw a male on a black scooter collide with a gold vehicle. The man was travelling 30-40 km/h. The scooter collided with the front driver corner of the gold vehicle. The man flipped off the front of his scooter and onto the bonnet of the vehicle.
Witness 3[10] was stationary on Taren Point Road in a southbound direction at the front of the queue in lane 2 of 3 to go straight through the intersection. The witness was stopped at a red light. They saw a black scooter travelling along the road through the intersection that had a red light travelling south across the pedestrian walkway at the lights. As the scooter entered the path of lane 1 of the west bound traffic a gold Camry collided with the scooter.
[4] Government Information (Public Access) Act 2009 (NSW).
[5] Police notebook pages 20 – 25.
[6] Police notebook pages 109 – 114.
[7] See summary of the record of conversation between Danny Scott of M&A Investigations and Constable Thomas of the Sutherland LAC on 3 July 2020.
[8] Police notebook pages 26 – 29.
[9] Police notebook pages 115 – 117.
[10] Police notebook pages 9 – 11.

The COPS report records that the claimant’s scooter collided into the front offside door of the insured driver’s vehicle. It is recorded that the claimant was riding a Dualtron scooter that was powered by 1600 watts. The claimant’s blood alcohol test returned negative. The report records that the claimant was not the owner of the scooter. The owner is identified. The report states that CCTV cameras at the intersection do not record – they are for live viewing only.
There is an Ambulance report provided under cover of correspondence from NSW Ambulance dated 29 July 2020. The report confirms the location and time of the accident. The report records that the claimant had been T boned by a car. It records that a helmet on the scene had been removed before arrival. Details of the claimant’s injuries and condition are provided.
The insurer relies on a report from M & A Investigations dated 23 July 2021. The report records that on 22 July 2021 Constable Thomas confirmed that he had issued the claimant with a traffic infringement notice for four offences: not stop red light, drive unlicensed, drive with unregistered vehicle and drive with uninsured vehicle. The claimant had paid the infringement notices and not contested them in court.

Submissions

The claimant relies on written submissions dated 27 November 2020 and 13 August 2021, together with oral submissions made at the assessment conference.
In his written submissions, the claimant argues that:
(a)   The insured driver had a duty to proceed through an intersection with caution and at a reasonable speed that would allow them to give way to any vehicles or pedestrians in or approaching the intersection.
(b)   A reasonable driver in the position of the insured driver would have reduced their speed and proceeded through the intersection with caution, as clearly the line of traffic was a detail that caught her attention.
(c)   Should the insured driver have reduced her speed, she would have had the opportunity to observe the claimant crossing the road.
(d)   While there is a component of contributory negligence on his part, his contribution is less than 61%. Accordingly, the accident was caused neither wholly nor mostly by his fault.
(e)   The insurer is speculating in relation to the speed of the claimant as he travelled across the pedestrian crossing.
(f)    The fact that a driver behind the insured vehicle did not say that they saw the claimant beforehand is a different thing to them affirmatively asserting that they did not see the claimant beforehand.
(g)   Witness 4’s vision would have been partially obscured by the insured vehicle, so that Witness 4’s capacity to view the claimant cannot be compared to that of the insured driver.[11]
[11] The witness referred to as “Witness 4” in the claimant’s submissions appears to be a reference to the witness referred to earlier in these reasons as “Witness 2”.
In summary, Mr Cleary’s oral submissions on behalf of the claimant were as follows:
(a)   The insured driver failed to keep a proper lookout.
(b)   If the insured driver had kept a proper lookout she would have seen the claimant.
(c)   Having seen the claimant, the insured driver could have slowed down or taken evasive action, thereby avoiding the accident.
(d)   The factors that ought to have alerted the insured driver to the prospect that pedestrians may be present on or near the road were:
·The immediate proximity of the intersection to a school.
·The time of day, being inside school hours.
·The marked pedestrian crossing at the intersection.
·Cars were stopped in lanes 3 and 4 on Captain Cook Drive waiting to turn right onto Taren Point Road.

(e) The fact that drivers, stationary in lanes 3 and 4 at the intersection waiting to turn right from Captain Cook Drive into Taren Point Road, had seen the claimant supported the claimant’s argument that had the insured driver been keeping a proper lookout, she would have seen the claimant and taken steps in response that would have prevented the accident.

(f)    In the circumstances the accident was caused by the insured driver.
(g)   Fault should be apportioned 50:50 between the claimant and the insured driver.
(h)   In those circumstances, the accident was caused neither wholly nor mostly by the fault of the claimant.

The insurer relies on written submissions dated 25 February 2021 together with supplementary submissions addressing the NSW Police material.
In its written submissions the insurer argues that:
(a)   The insured drove through the intersection on a green light and at 50 km/h, 10 km/h below the speed limit. She clearly drove with care. There is no logical reason the stationary vehicles in lanes 3 or 4 ought to have alerted the driver that the claimant intended to cross seven lanes of traffic.
(b)   The claimant proceeded against a red pedestrian light to cross seven lanes of traffic and collided into the driver’s side of the insured vehicle.
(c)   There was no breach of duty of care on the part of the insured. The collision between the insured and the claimant was caused by the claimant attempting to cross seven lanes of traffic against a red pedestrian light.
(d)   A finding should be made that the claimant travelled through the intersection without stopping or slowing down and at a likely speed of 30 km/h.
(e)   There is no evidence that the insured ought to have seen the claimant before the collision. This is supported by “Witness 4” who was travelling behind the insured and did not see the claimant prior to the collision. It follows that the insured was not negligent in any way and was driving at a reasonable speed in the circumstances.
(f)    If a finding is made that the insured breached her duty of care, the insurer submits that the claimant’s contribution to the accident significantly outweighs the insured driver’s contribution. A reasonable person in the claimant’s position would not have ridden the scooter through a busy and large intersection, and against a red pedestrian light. The claimant’s contribution ought to be greater than 61% and therefore he should be found to be mostly at fault.

In oral submissions the insurer argued that:
(a)   Given the prevailing circumstances it was not reasonable to expect the insured driver to have seen the claimant at any time prior to the accident.
(b)   The insured driver was travelling below the speed limit and at a speed that was reasonable having regard to the prevailing circumstances.
(c)   The claimant collided with the insured vehicle.
(d)   There was no breach of duty or fault on the part of the insured driver.

Determination

I make the following findings in accordance with the agreed facts:

(a)   The lights for cars turning right from Captain Cook Drive onto Taren Point Road were red.

(b)   The lights for cars proceeding straight along Captain Cook Drive were green.

(c)   The insured driver was travelling in lane 2 of 4.

(d)   The claimant was wearing a helmet.

(e)   The speed limit along Captain Cook Drive was 60 km/h.

(f)    The claimant was crossing a pedestrian crossing on Captain Cook Drive.

(g)   The claimant was on the scooter whilst crossing the road.

(h)   There were three to four cars in each of lanes 3 and 4 waiting to turn right onto Taren Point Rd.

(i)    At all times when the claimant was crossing Captain Cook Drive he had a red ‘don’t walk’ pedestrian signal facing him.

(j)    The insured driver did not see the claimant at any time before the accident.

(k)   At the time of the accident the insured driver was travelling at 50 km/h.

I find that the claimant’s scooter collided with the driver’s side of the insured driver’s vehicle, towards the front of the vehicle. This finding is consistent with the statement given to the Police by the insured driver[12] on the day of the accident, her statement dated 19 June 2020, wherein she stated that her vehicle sustained damage to the middle of the offside, and the evidence of Witness 2 that the scooter collided with the front driver corner of the insured driver’s vehicle.
[12] Police notebook page 112.
Although the parties agreed that there was no evidence about the speed at which the claimant was travelling on his scooter immediately before, or at the time of, the accident, this is not correct. The Police notebook records the following evidence from Witness 2: “I saw a male on a black scooter collide with the gold coloured vehicle. The man was travelling 30-40 km per/hour”.[13] I find that as he crossed the intersection immediately before the accident the speed at which the claimant was travelling on his scooter was at least 30 km/h.
[13] Police notebook page 116.
I note the evidence of Witness 1, who was stationary in lane 3 of 4 on Captain Cook Drive waiting to turn right into Taren Point Road, that there was nothing obstructing the view of the collision. I take this to be a reference to the view the witness had, rather than evidence as to the view the insured driver had.
I am not persuaded by the claimant’s submission that: the fact that drivers, stationary in lanes 3 and 4 at the intersection waiting to turn right from Captain Cook Drive into Taren Point road, had seen the claimant supported the claimant’s argument that had the insured driver been keeping a proper lookout, she would have seen the claimant and taken steps in response that would have prevented the accident. The drivers in lanes 3 and 4 were stationary. They had an apparently unobstructed view of the claimant as he crossed the road on his scooter. This is to be contrasted with the position of the insured driver, who was travelling at 50km/h and who’s view was obstructed by vehicles stationary in lanes 3 and 4 waiting to turn right.
I find that the insured driver’s view of the claimant as he crossed the intersection was obstructed by the vehicles stationary in lanes 3 and 4 waiting to turn right onto Taren Point Road. In this regard, I have found that there were three to four stationary vehicles in each lane.
The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: McHugh J: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422. 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].
A driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events.[14] Nor is a 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.[15] A motorist must always be conscious of the fact that a pedestrian may do something silly and must adjust his or her driving to account for that possibility. On the other hand, a motorist can hardly drive in such a way that he or she expects such accidents to occur every minute. Otherwise, no traffic would ever move. Unless there is some reason for a motorist to look to the right or the left, it is not surprising that he or she may be looking straight ahead when driving his or her motor vehicle.[16]
[14] Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 per Meagher JA at [36].
[15] Marien at [37].
[16] Dugan v Chan [2013] NSWCA 182 per Emmet JA at [17].
The claimant argues that the following matters should have alerted the insured driver to the prospect that pedestrians may be present on or near the road:
·        The immediate proximity of the intersection to a school.
·        The time of day, being inside school hours.
·        The marked pedestrian crossing at the intersection.
·        Cars were stopped in lanes 3 and 4 on Captain Cook Drive waiting to turn right onto Taren Point Road.
While these factors are relevant to the reasonable care the insured driver was required to exercise, on the basis of the facts I have found I am comfortably satisfied that the insured driver did not breach the duty of care she owed the claimant. In my view, she was driving reasonably having regard to the prevailing circumstances.
I find that the insured driver was keeping a proper lookout. Her view was obstructed by stationary vehicles in lanes 3 and 4. She was faced with a green light. There is no evidence that there were pedestrians not crossing the road safely. In my view, the insured driver was entitled to drive with her eyes ahead of her until she noticed something to her right that called for greater concentration to her right.
I have concluded that there was nothing that should have put the insured driver on notice that a person on a motor scooter was likely to emerge on the pedestrian crossing from her right against a red don’t walk signal when she was faced with a solid green traffic signal.
The speed limit on that stretch of road was 60 km/h. The insured driver was travelling at a speed of 50 km/h as she entered the intersection. I am satisfied that this was an appropriate speed in the circumstances. There was no factor that, in my assessment, should have caused her to reduce her speed below the speed at which she was travelling.
I am satisfied that the insured driver was taking reasonable care as she proceeded along Captain Cook Drive and entered the intersection. I find that the accident was not caused by the fault of the insured driver. I find that the accident was caused wholly by the fault of the claimant.

Costs

The claimant seeks the maximum costs allowed by the regulations. The insurer argues that if I find in favour of the insurer no costs should be awarded to the claimant.
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.[17] The claimant seeks payment of his legal costs. No claim is made for other costs and expenses.
[17] s 8.10(1) MAI Act.
The regulations fix the maximum costs recoverable by a claimant in a miscellaneous assessment matter.[18] I find that the claimant’s reasonable and necessary costs in relation to this matter are $1,660 plus GST. The claimant is entitled to recover these costs from the insurer.
[18] Schedule 1 clause 3(1) Motor Accident Injuries Regulation 2017.

Brett Williams

Member (Motor Accidents Division)
Personal Injury Commission

[2021] NSWPIC 337

7 September 2021