Scott AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Scott AAI Limited t/as GIO [2023] NSWPIC 509
CLAIMANT:	Robert James Scott
INSURER:	GIO
MEMBER:	David Ford
DATE OF DECISION:	28 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claims sssessment dispute about the amount of damages to be paid to the claimant under section 7.36(3) and 7.36(4); motorcycle being driven by the claimant attempting to overtake a state transit bus; claimant failed to see insured bus driver activated left turn indicator; collision occurred between both vehicles; insured bus driver admitted the bus had a blind spot in regards to vehicles overtaking on the left hand side of the bus; claimant is a manager of a tyre retailer; claim for non-economic loss, past and future economic loss; Held – claimant is entitled to damages for non-economic loss and past and future economic loss
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 Assessment of Claim for Damages made in accordance with s 7.36 of the Act. 1. On the issue of liability for the claim the GIO's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant I assessed contributory negligence at 60%. 2. The amount of damages assessed in respect of this claim is $193,510.80 which includes any statutory benefits paid by the insurer. 3. The amount of the claimant’s costs taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 is $37,362.65 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

INTRODUCTION

On 3 December 2018, the claimant was riding his motorcycle in Stoney Creek Road towards the intersection with Preddys Road at Bexley. He was travelling behind a state transit bus (bus). The bus was approaching the said intersection in lane 2 and had passed a number of parked vehicles in the curbside lane (lane 1). The insured driver of the bus (Mr Hoi) activated his left turn indicator, slowly reduced the speed of the bus, and moved a slight distance into lane 1. He looked at his passenger side rear view mirror to lookout for any vehicles travelling behind the bus who may have entered lane 1 and then, as he approached the intersection, he made a slight adjustment to the steering wheel to the right and then commenced to make a left hand turn into Preddys Road.
At the same time, the claimant had failed to notice Mr Hoi had activated his left turn indicator, and accordingly, presumed the bus would remain in lane 2 as it approached the intersection. He then decided to overtake the bus in lane 1, however as the bus commenced the left hand turn into Preddys Road a collision occurred between the motorcycle and the bus.
Police and ambulance attended the scene of the accident, and he was transported to

St George Hospital where he was admitted. He was diagnosed with suffering from the following injuries:
(a)    complex intra articular fracture of the distal femur of the right leg;
(b)    laceration and anterior cruciate disruption of the right knee;
(c)    closed fracture of the Ipsi- lateral tibia;
(d)    soft tissue injury to right shoulder;
(e)    soft tissue injury to lumbar spine;
(f)    fracture of the right 4th rib;
(g)    scarring to the face;
(h)    scarring to the hip, pelvis, knee and leg;
(i)    injury to the teeth, loss of vitality of teeth 11 and 21, and
(j)    psychological -persistent depressive disorder.
He underwent a number of surgical operations, including bone grafting in February 2019, osteotomy and refixation of his fracture in September 2019, and removal of a locking screw in December 2019. He had injured his right femur in a previous motor vehicle accident in 1999, however, he states right leg, prior to this accident, was well healed and presented him with no problems.
At the time of his accident, he was employed as a manager of the sales department at Blairs tyres and had been in their employ for 23 years. Post-accident, he returned to his employment, eventually working normal hours but avoiding heavy physical work.
Following the accident, he was not able to work for approximately three months, and, upon return to work was only capable of working half days and required various intermittent periods off work to attend medical appointments, undergo surgeries, and for periods of rest. The claim for past economic loss is based upon loss of $1,000 net per week for a period of 12 weeks, thereafter, $500 net per week for a period of 12 weeks. A further period of $1,000 net per week for a period of nine weeks. Past loss of superannuation is claimed in the sum of $3,105 and Fox v Wood is claimed in the sum of $5,500. The claim for future economic loss is based upon a continuing diminution in income of $500 net per week for the remainder of his working together with a claim for loss of future superannuation.
He was born in 1978 and is presently 45 years of age.

LIABILITY

The insurer has denied liability. Mr Hoi attended the general assessment conference and was questioned by both counsels. He was questioned at length in relation to the blind spot which is located between the rear tyre of the bus extending to the centre of the bus. Mr Hoi confirmed when he does look to the passenger side rear view mirror “it is my blind spot”. The CCTV footage of the bus does confirm Mr Hoi glanced twice to the left after activating his left turn indicator, however, he clearly stated he did not check his mirror again before commencing the left turn into Preddys Road and furthermore, he also confirmed regarding the position of the claimant, immediately prior to impact, that the claimant “could be in my blind spot”.
There have been references to this blind spot in previous statements, and documents obtained prior to the assessment conference. In this regard, I note the following:
(a)    The claimant was charged with the offence of overtake/pass vehicle contrary to sign and a Facts sheet was prepared by the police. This contains an interview by the police with Mr Hoi and on page 27, he states the following:
“I am turning left from Stoney Creek Road into to this Preddy taking both lanes because that is a sharp turn and I cannot do it in one lane .. Doing properly 30 kph to 40 kph and this speed and I put the indicator on before I start turning. I think this guy take me from behind because he is at my blind spot, and I can't even see him. I just heard a hit, a small hit on the side of bus and I stopped”.
(b)    Mr Hoi gave a signed statement to an investigator engaged by the insurer dated 17 September 2020. He states the following at paragraph 26:
“After passing the parked cars I was driving in both lanes in preparation for the left hand turn into Preddys Road. I check my left-hand mirror twice, and I did not see the motorcycle at all before the collision and as I was making my left-hand turn, he's tried to overtake the bus on the left-hand side in lane 1. I think the bike rider may have been in my blind spot”.
(c) The claimant appeared before Magistrate Love in the Sutherland Local Court on 20 January 2020, as, was charged with the with the offence overtake/pass vehicle contrary to sign, pursuant to s 143 (1a) of the Road Rules 2014. Mr Hoi gave evidence at that hearing and I refer to page 5 of the transcript as follows:
“Q. As you were approaching that intersection, first of all can you briefly describe that intersection to the court?
A. It is a green light on the street, and I am going from Stoney Creek Rd turning left into Preddys Road and I am taking 2 lanes too because that is a sharp turn. I have to take 2 lanes to pass the turn and I put on my left indicator, probably at least 50 to 80 metres ahead, that is probably 6 seconds before. I checked the mirror, there is no car on my left because it is a two-lane street. There is cars parked on the left lane so I am pretty sure I am the only one on the free lane to turn left and when I am turning left, near halfway just before I start to turn, half way I hear a big sound crash on my back of the bus. So, I stop the bus immediately and get off, I can't see anything from the mirror yet at that point because it is probably in my blind spot. I get off the bus there is a motorbike, I think it is in the front of the bus on the left-hand side and there is a man lying behind bleeding on the street.”
(d)    Furthermore, I refer to page 9 of the transcript as follows:
“Q. When you check your mirrors could you see cars behind you?
A. Only the back mirrors but not the side mirrors
Q. Could you see cars behind you?
A. Yes
Q. You say the reason you did not see the bike because he was in your blind spot, is that right?
A I am not sure where it is but it didn’t definitely not show in my mirror
Q. At no stage did you see the bike rider before the crash.
A. Exactly
Q. You do have a blind spot in the bus, is that right?
A. Yeah that's right.
Q You did not see the bike at any time behind your bus?
A. Yeah that's right.
Q. So you didn't?
A. No I didn't.”
This matter came before Member McTegg as a Miscellaneous Claims Assessment and in her Certificate of Determination, she found the motor accident was caused wholly or mostly by the fault of the claimant. Mr Hoi was not questioned at the Miscellaneous Claims Assessment. I note on page 12, Member McTegg refers to the statement of Mr Hoi dated

17 September 2020. I note the following paragraph 26:
“After passing the parked cars I was driving in both lanes in preparation for the left hand turn into Preddys Road. I check my left-hand mirror twice. I did not see the motorcycle at all before the collision and I was making my left hand turn he has tried to overtake the bus on the left-hand side in lane 1. I think the bike rider may have been in my blind spot.”
The insurer served a report from Grant Johnston, consulting engineer, dated February 2022 and I refer to page 41 of his report which states as follows:
“Figure 7.5 is also extracted based on the” cam forward" video and it identifies the time of 5.45.00 which is 10 seconds after the left turn signal was activated. As can be seen in the top image, which is the cam forward view, the bus has now entered the actual intersection and is well and truly into the left turn movement and is clearly wholly across lane 1 and 2 as it makes the turn. The two images are synchronised such that they show the nearest matching set of frames (which are not necessarily synchronous but are accurate at least to the native frame rate) and shows that at this stage the motorcycle (which is magnified in the bottom image) is approaching but has not yet reached the rear of the bus in lane 1. As a result of the speed differential there is now only 1 to 2 seconds before impact with the rear door Therefore after the motorcycle comes alongside the bus there is only about 1 second before the impact occurs and the bus at this stage is already across lanes 1 and 2 so even stopping the bus at this point would not have prevented the incident...”
In his findings, Mr Johnston, inter alia, states the following:
“In my opinion the driver has not only fulfilled his primary obligations but is also fulfilled and probably exceeded his secondary obligations to drive defensively and check for non-compliant drivers to try and remove or minimise their error.
The bus driver was under no obligation to effectively block line 1 as I previously discussed but it appears by positioning, he was at different times at least partially into lane 1 effectively indicating its intended use to following vehicles. He could not physically block it for smaller footprint type vehicles such as motorcycles as suggested by Mr. Byrnes because if he was too far left in lane 1 in order to physically” block” all vehicles he could not complete the turn. The evidence confirmed that he checked prior to turning and contrary to Mr Byrnes time/ motion diagram which I have shown to be incorrect the motorcycle was not beside or even close to the rear of the bus prior to him commencing his left turn.
We do not actually know the relative position of the motorcycle and it very well could and probably was still behind him in lane 2 when he checked his mirrors before commencing the left turn. It is my opinion that the driver fulfilled and exceeded his reasonable precautions prior to commencing what was a legitimate left turn movement.”
The solicitor for the claimant served a report from Mark Byrnes dated 9 November 2021. I refer to page 30 of his report which states as follows:
“There has been no evidence reviewed that would contradict the plaintiff’s maximum first speed of approximately 50 kph.’
Conspicuousness of the motorcycle
It was evident in the bus driver’s camera footage that the bus driver made 3 discernible head moves to his left (assumed to be looking at the external near side mirror) consuming about 3 seconds in total. Sedan drivers make an average of 2.5 head turns and take 3 to 7 seconds when changing lanes, The author is unaware of any research of the scanning techniques of drivers of rigid buses during lane changes or left /right turns at intersections.
It would be reasonable to accept, due to the bus’ greater size, that a bus driver should be more diligent and methodical in checking mirrors to ensure that it is safe prior to performing the manoeuvres. It is the author’s opinion that the defendant’s scanning techniques would best be described as ephemeral glances.”
Furthermore, I refer to page 31 of his report as follows:
“Blind Spots on a Rigid Bus
Blind spots are the areas a driver can't see when looking in their mirrors or by turning their head They are reduced dramatically by proper mirror placement and use of cameras, but they are difficult very difficult to eliminate. Small vehicles, cyclists and pedestrians are most at risk in large vehicles’ blind spots.”
On page 32 he states,
“Assuming that the motorcycle was travelling at a constant velocity of 13.9m/s (50kph) and entered traffic line one (1) about 70 metres prior to the area of impact, the time he may have been visible to the defendant through the external left mirror would have been in the order of 5 seconds”.
Mr Byrnes on page 34 concludes as follows,
“Due to the bus’ size the defendant should have been more diligent and methodical in checking mirrors to ensure that traffic lane 1 was not occupied prior to commencing the left turn. It was considered reasonable to assume that the motorcycle was within the confines of traffic lane one (1) for approximately 5 seconds. Had more time been afforded to scanning the near side mirror immediately prior to the left turn, it would have afforded more opportunity for the defendant to identify the approaching motorcyclist.”
I prefer the findings of Mr Byrnes in preference to the conclusions reached by Mr Johnson in his report. Mr Hoi clearly stated at the general assessment conference he did not check his mirror again before making the left-hand turn. The bus was travelling at a slow speed of between 30 kmph and 40 kmph. Mr Hoi was aware of the fact he had a blind spot and I find it would have been necessary for him to make one final check in his mirror to see whether there were vehicles or motorcycles in the lane. I find he should have slowed his vehicle down further to a very slow speed, which would then have enabled him to bring his bus to a complete halt in the event the claimant’s motorcycle had come into his view. Furthermore, reducing the speed of the bus when commencing his turn may well have enabled the claimant to take some evasive action, by either applying his brakes or attempting to pass the bus as there may have been sufficient room to do so.
Therefore, after having the benefit of reading all of the documentation served in this matter and after hearing from Mr Hoi at the assessment conference, I find Mr Hoi has breached his duty of care to the claimant, which has resulted in the claimant sustaining personal

injury/loss /damage as a result of the said breach. However, I find contributory negligence on behalf of the claimant to be proven and my reasons for such finding are as follows.

CONTRIBUTORY NEGLIGENCE OF THE CLAIMANT

The onus proving contributory negligence rest upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users.
In Manley v Alexander 2005 HCA 79 at 11, the majority of the High Court emphasised the duty of a driver to ‘give reasonable attention to all that is happening on or near the roadway that might present a source of danger’.
An insured driver who asserts a claimant is negligent in failing to keep a proper lookout must also establish the claimant had the opportunity to see the insured driver and failed to do so. This is consistent with the principle in Manley v Alexander, that is the duty of a motorist to be observant of all possible sources of danger on the road.
Section 5R (1) of the Civil Liability Act 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time, see s 5R (2)(a) and (b).
Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against the 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, and
(e)    the determination of whether a claimant it has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case see, Serrao (by his tutor) Serrao v Cornelius (2) 2013 NSW CA231 at (61).
Mr Hoi had activated his left turn indicator after having driven past the parked cars in Stoney Creek Road, and at the same time, the claimant was riding his motorcycle behind the bus and failed to take notice of the fact the left turn indicator had been activated and therefore I find he was not keeping a proper lookout. I accept the claimant has on several occasions provided statements concerning the circumstances of this accident which are inconsistent, and, in some respects incorrect. However, at the assessment conference, I found him to be truthful when being questioned by both counsel and was prepared to admit some of the inconsistencies recorded in his previous statements.
Counsel for the claimant in his submissions dated 24 August 2023 submitted I should make a finding of contributory negligence at no more than 35% against the claimant. I reject this submission.
I find the allegation of contributory negligence to be proven and I assess contributory negligence at 60%.
Furthermore, for the reasons which I state below, I have accepted the claimant sustained personal injury, loss and damage as a result of the said breach of duty of care. I will now assess damages.

Outline issues in dispute

The following issues have arisen in this matter:
(a)    non-economic loss;
(b)    past economic loss;
(c)    past superannuation;
(d)    future economic loss;
(e)    future superannuation, and
(f)    Fox v Wood.
The main issues requiring my determination are as follows:
(a)    what is the entitlement to damages for non-economic loss;
(b)    to what extent if at all, have the claimant’s injuries and ongoing disabilities resulted in the claimant suffering a diminution in his ability to earn an income from the date of the accident up until the present time and for the remainder of his working life, and
(c)    what is the entitlement to damages which flow from the findings on the above issues.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions made by the claimant

The solicitor for the claimant arranged for him to be seen on a medical legal basis by

Dr Graeme Doig and I refer to his report dated 20 August 2020. The claimant complained of weakness of the right leg with constant pain and swelling in his right knee joint and thigh. He has also been experiencing low back discomfort; however, he was asymptomatic with respect to his right shoulder. Dr Doig carried out a physical examination of the claimant and on page 6 of his report, he states the following:
“As the result of the right lower limb injury, Mr. Scott has been unable to return to his preinjury employment duties and his activities of daily living. He will have a 10 to 15 kgs lifting, pushing and pulling restrictions with limited bending, twisting and squatting through the right leg He should avoid working at heights and on uneven ground as well as repetitive stair and hill climbing and kneeling, He will require breaks from prolonged standing and walking and is unable to run. All activities with these restrictions will symptomatically exacerbate his right leg condition...”
Dr Doig notes the claimant is not performing the physical lifting and heavy demands of the job that he was undertaking prior to the incident. He has a very sympathetic employer

Dr Doig is also of the opinion the claimant may come to a total knee replacement surgery. Although because of his relatively young age, this should be delayed as long as possible.

Dr Doig assessed him as having a whole person impairment of 18%. In a supplementary report dated 7 July 2023, he states the following on page 2 of his report:
“Assuming Mr. Scott continues to work in a sedentary position he may be able to return to suitable employment 6-8 weeks following successful total knee replacement surgery If he suffers any type of complication however, this may prove difficult, although remains to be seen. Even with a successful total knee replacement, it would be unwise for him to return to physically demanding employment as there would be an increased risk of aseptic loosening Knee replacement surgery has been shown in the orthopaedic literature to be less successful following an intra articular fracture when compared to surgery performed for primary idiopathic osteoarthritis.”
The submissions in relation to damages sought by the claimant are set out in paragraph 6 above.

Submissions made by the insurer

The solicitor for the insurer arranged for the claimant to be seen on a medico legal basis by Associate Professor Shatwell and I refer to his report dated 21 August 2019. He has taken an extensive history from the claimant commencing on page 2 of his report. He carried out a physical examination of the claimant and viewed imaging reports. On page 4 of his report, he states the claimant is able to manage to run his business and get to and from his workplace without any difficulty as he virtually lives on the premises. He also notes he has adequate staff to cope with the business and his duties are mainly managerial and sedentary. At that time, Associate Professor Shatwell considered there was no urgency to plan any surgical intervention. In a further report of 25 September 2019, he comments on further operative treatment recommended for the claimant.

Reports from the medical service

The parties serve the following reasons and certificates of the medical service:
(a)    Medical Assessor Bodel dated 6 April 2022;
(b)    Medical Assessor Geoffrey Paul Curtin dated 24 July 2022;
(c)    Medical Assessor Sidorov dated 6 December 2022;
(d)    Medical Assessor Paul Nichols dated 8 March 2022, and
(e)
Combined certificate of Medical Assessor Geoffrey Paul Curtin dated

25 July 2022.
The medical service determined the claimant has a whole person impairment of 15% and therefore he is entitled to damages for non-economic loss. Regarding the certificate and reasons of Medical Assessor Sidorov the claimant's current symptoms are set out in detail on page 4 of the reasons. I note the following under the heading Diagnosis and Reasons on page 6:
“Based on the account presented by Mr. Scott, his presentation and review of documentation he meets the diagnosis criteria for a persistent depressive disorder as per DSM 5 This is based on a history of experiencing a depressed mood for most of the day for more days than not, for at least two years, associated by appetite and sleep disturbance, low energy and feeling fatigued and experiencing low self-esteem as well as feelings of hopelessness...”

REASONS

NON-ECONOMIC LOSS

The claimant is entitled to damages for non-economic loss. The solicitor for the claimant has submitted a sum of $350,000 for such damages, and the insurer, in response, has submitted a sum of $200,000 to be appropriate. In determining the appropriate amount to be awarded to the claimant I was assisted by the reports of Dr Doig. It is clear the claimant suffered serious injuries as result of this accident and has continuing ongoing disabilities which are permanent and have a significant impact upon his enjoyment of life as well as his physical and mental state. Having regard to his age and the nature and extent of his injuries and disabilities, I consider an appropriate amount for non-economic loss is the sum of $300,000.

Past loss of earnings

Regarding the claim for past economic loss, I accept the submission by the solicitor for the insurer that at the time of the accident, the claimant was in receipt of a net weekly income of $980. However, I accept the calculations in relation to time off work, as submitted by the solicitor for the claimant, and I therefore award the following amount in respect of past loss of earnings:
·        $980 net per week multiplied by 12 weeks $11,750;
·        $490 net per week multiplied by 12 weeks $5,880;
·        $980 net per week multiplied by 9 weeks $8,820;
·        Total amount allowed for past loss of earnings $26,460, and
I note the insurer has paid statutory payments totalling $ 22,630.20.

Past superannuation

I have calculated 11% on the net amount of $26,460 which results in an amount to be allowed for pass superannuation in the sum of $2,911.

Future loss of earnings

I prefer the opinions expressed by Dr Doig regarding the claimant’s capacity to work and I do accept the most likely future circumstance for him is that he will continue to suffer from the ongoing disabilities in his right leg and knee which will cause him to suffer a diminution in his earning capacity for the remainder of his working life. He is fortunate, at the present time, that he works for a sympathetic employer, however, in the future he will experience difficulty in obtaining alternative suitable employment and he will always be at risk on the open labour market when seeking work. I reject the submission by the solicitor for the claimant that I should allow a loss of income at a continuing loss of $500 net per week, calculated in accordance with the actuarial tables for the remainder of his working life. I find it is appropriate to award future loss of earnings by way of a buffer, which includes an allowance for a future superannuation, in the sum of $150,000.

Fox v Wood

I have allowed the sum of $4,406 as submitted by the insurer.

Assessment of damages summary

Under sub-section 7.36 (1)(b) of the Motor Accident Injuries Act 2017 (MAI Act). I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above,
non-economic loss  $300,000
Past loss of earnings  $26,460
Past superannuation  $2,911
Future loss of earnings  $150,000
Fox v Wood  $4,406
Total of economic losses and non-economic loss         $483,777
Reduction for contributory negligence  60%
TOTAL DAMMAGES ASSESSED  $193,510.80

Costs and disbursements

I assess the claimant's legal costs and disbursements in accordance with the MAI Act and the Motor Accident Injuries Regulation 2017 in accordance with the attached sheet. At the conclusion of the assessment conference, I was handed an envelope containing copies of two emails dated 22 October 2021 and 1 June 2023 addressed to the solicitor for the claimant. The first email proposed an offer of $1,660 plus GST for payment of legal costs and disbursements in connection with the miscellaneous claim assessment. The second email proposed an offer of $4,856.50 for legal costs and disbursements. The award of damages to the claimant exceeds the amounts proposed by the insurer and accordingly, it is not necessary for me to hear any further submissions regarding costs to be awarded to the claimant in this matter.

CONCLUSION

On the issue of liability for the claim the GIO's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. In respect to the allegation of contributory negligence on the part of the claimant, I assessed contributory negligence at 60%.
I specify the amount of damages for this claim as $193,510.80 which includes any statutory benefits paid by the insurer.
The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $37,362.65 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a) MAI Act;
(b) Motor Accident Injuries Regulation 2017;
(c) Personal Injury Commission Regulation 2020;
(d) Motor Accident Guidelines 2017, and
(e) Personal Injury Commission Rules 2021.

[2023] NSWPIC 509

28 September 2023