Shakhesi v QBE Insurance (Australia) Limited
[2022] NSWPIC 362
•6 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Shakhesi v QBE Insurance (Australia) Limited [2022] NSWPIC 362 |
| CLAIMANT: | Nastaran Shakhesi |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 6 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); Schedule 2, clause (3)(g) of the MAI Act; Section 5R of the Civil Liability Act 2002; where claimant as a pedestrian was struck by insured vehicle whilst attempting to cross a residential street to catch a bus; CCTV footages from bus company; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; Held – contributory negligence of 50% on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | 1. For the purposes of s 3.38, the insurer is entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident, by 50%. 2. Effective Date: This decision takes effect from 25 February 2021. 3. Legal costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,881 inclusive of GST. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause (3)(g) of the Motor Accident Injuries Act 2017 (the MAI Act). Is the insurer entitled to reduce the statutory benefits payable to the claimant in accordance with s 3.38 of the MAI Act for contributory negligence?
BACKGROUND
The claimant, Nastaran Shakhesi, is a 43-year-old woman who suffered significant injuries on 25 August 2020 when she was struck by the insured vehicle, while attempting to cross Adelphi Street as a pedestrian near the intersection of Panmure Street, Rouse Hill.
On 9 September 2020, the claimant made an application for personal injury benefits. The insurer accepted liability for payment for the first 26 weeks.
On 10 December 2020, the insurer notified the claimant that it would reduce her weekly payments after 26 weeks by 50% on the basis of her contributory negligence in causing her injury in the motor accident.
On 25 January 2021, the claimant sought a review of the insurer’s decision.
On 4 February 2021, the insurer issued a revised decision “whilst the internal review was underway” increasing the percentage of the claimant’s contributory negligence to 75% based on “new information received”.
On 12 February 2021, the insurer issued a review decision of both its original decision of 10 December 2020 and its revised decision of 4 February 2021. The insurer notified the claimant that the insurer has now decided that the claimant’s contributory negligence for causing her injury in the accident would be 65%.
On 12 March 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
The application is now before to me for determination.
DETERMINATION ON THE PAPERS
I conducted several teleconferences with the parties over the course of the proceedings to discuss the material provided to the Commission and to explore the availability of further evidence. Ultimately, further documents were obtained from the NSW Police Force pursuant to a Direction for Production which included CCTV footage of the accident.
At the last teleconference on 16 December 2021, the parties agreed that I could proceed to determine the proceedings based on the documents before me.
I am satisfied that there is sufficient information before me to determine the matter on the papers.
In making my decision, I have considered the following documents:
(a) the Application for Personal Injury Benefits dated 9 September 2020;
(b) the NSW Police report dated 29 September 2020;
(c) the factual investigation report of the Procare Group dated 15 October 2020, which included a signed statement of the insured dated 8 October 2020 and a record of interview between David O’Neill and Constable Scott Newman of the NSW Police Force;
(d) the Liability Notice for Benefits after 26 weeks dated 10 December 2020;
(e) the insurer’s revised liability decision dated 4 February 2021;
(f) the insurer’s internal review decision dated 12 February 2021;
(g) the claimant’s submissions to the Commission dated 12 March 2021;
(h) the insurer’s submissions to the Commission dated 21 April 2021;
(i) the claimant’s signed statement dated 11 August 2021;
(k) the documents produced by the NSW Police Force pursuant to a Direction for Production, which included police notebook statements of the claimant and the insured driver, various coloured photographs of the scene of the motor accident and CCTV footage of the accident captured by a bus from Busways, and
(j) a google map provided by the insured driver depicting with an “x” where the collision occurred on Adelphi Street.
LEGISLATION
In making my decision, I have considered the following legislation and guidelines:
· the MAI Act;
· Motor Accident Injuries Regulation 2017 (the Regulation);
· Motor Accident Guidelines 2017 (Version 8) (the Guidelines);
· Civil Liability Act2002 (the Civil Liability Act), and
· Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
EVIDENCE
The following facts are uncontroversial:
(a) the motor accident occurred at about 9.00 am on Tuesday 25 August 2020 on Adelphi Street, Rouse Hill;
(b) the claimant was a pedestrian on Adelphi Street near the intersection with Panmure Street;
(c) the insured vehicle, a Suzuki APV Van was travelling southbound on Adelphi Street;
(d) the speed limit is 50kph;
(e) the road surface was sealed and dry, and
(f) it was daylight.
The claimant’s evidence
On 4 September 2020, the claimant was interviewed by Constable Scott Norman of the NSW Police Force at Castle Hill Police station. When asked by Constable Newman, “Can you tell me what happened?” the claimant’s response was recorded in Constable Norman’s police notebook as follows:
“I wanted to cross the road on Adelphi Street. I looked right but it was very far away. I looked left and waited for that car too [sic] pass. After that car passed I crossed the road and thats [sic] when the car hit me. I took about two to four steps on the road before I was hit. After that a woman showed me my phone and asked for my PIN code…”
In her application for statutory benefits dated 9 September 2020, the claimant described the circumstances of the accident as follows:
“I was walking on Adelphi Street towards Panmure Street to the bus station, located across the road near Lazeez Indian Restaurant. I wanted to cross the road to get to the bus station. I checked my right side and saw a white car coming towards me but it was far away. I checked my left hand side and it was safe to cross, turning my head to the right side again I started walking and after the second step I saw the car’s windscreen in front of my eyes, and was hit by the car.”
In her statement dated 11 August 2021, the claimant stated:
“…
2. On 15 August 2020 at around 8:30am, I went to Australia Post at Rouse Hill Village Centre to pick up my parcel. After I picked up my parcel, I proceeded to go to the bus stop on Adelphi Street at around 9am as I had arranged to meet up with my friends at Rouse Hill Town Centre at approximately 10:30am.
3. I was walking on the pathway opposite Rouse Hill Village Centre on Adelphi Street.
4. I saw the bus stop on the other side of Adelphi Street and saw that the bus was not there yet.
5. Before I had approached and crossed Panmure Street, I checked and looked at the right side of the road. It was at this time that I saw a white car far away from me on the road and at the same time, I saw that the bus had just arrived at the bus stop. This led me to increase my speed and I proceeded to cross Panmure Street.
6. After crossing Panmure Street, I was observing the movements on the road and I clearly remember that a car was overtaking the bus that was stopped. I thought that I needed to cross the road after the overtaking car had passed.
7. Once the overtaking car passed, I was close to the edge of Adelphi Street ready to cross that street, having already kept in mind that the white car was still too far.
8. At this moment as I just was entering the road with around 2 steps in, I was turning my head to the right side again, that I saw the white cars [sic] windscreen in front of my eyes and was hit by the car.
9. I recall seeing a lady come to my aid. I asked her to contact my husband and I gave her his name and the passcode to my phone. Then I heard her mention my husband's workplace location, but I do not remember anything after until I was inside the ambulance. I was taken to Westmead hospital.
…”
The insured driver’s evidence
The insured driver was interviewed by Senior Constable Lefel of the NSW Police Force at the scene of the accident. He recorded the following statement from the insured driver in his notebook:
“I was driving on Adelphi Street towards the roundabout she just came in front of the car, she was running when she fall [sic]. I came out [sic]. Like she was running to catch the bus. Suddenly she went in front of my car. She had something in her ear, like earphone.”
The remainder of the insured driver’s statement recorded in Senior Constable Lefel’s notebook may be summarised as follows:
(a) He was travelling at 20kph when the pedestrian hit his car.
(b) The pedestrian was running from the side where the houses are towards the bus stop on the other side of the road.
(c) He first saw the pedestrian when she hit his car.
(d) The pedestrian ran straight into his car without looking.
On 5 October 2020, the insured driver was interviewed by Mr O’Neill of the Procare Group. The insured driver's evidence in that interview may be summarised as follows:
(a) He is a gardener by trade, and he was travelling to Richmond for a job. He had left his home a couple of minutes before, and he was travelling southbound on Adelphi Street towards Windsor Road.
(b) He is very familiar with Adelphi Street as he drives along the area almost daily. At the time of the collision the traffic density was light.
(c) He believes the speed limit is 50kph.
(d) The accident happened directly outside number 7 Adelphi Street and across the road from a bus stop next to the Rouse Hill Anglican Church. The closest side street is Panmure Street which is located about 20-30 metres north of the location of the accident.
(e) The claimant said: “I never saw the claimant at all before the incident. I never saw her on the side of the road. I saw her for the first time when she hit my car.”
(f) There were no other vehicles in front, behind or at the side of him. There were no parked cars on either side of the road prior to the collision.
(g) He said that the claimant was holding a white box which looked like a postage package.
(h) He said: “Before the incident, when I was driving, I saw a bus stopped at the bus stop across the road from number 7 Adelphi Street and next to the church. The bus was still there when the accident occurred, and the claimant was running towards the bus.”
(i) He said he had no chance to take any evasive action as he never saw or heard the claimant approaching.
(j) He believed that at the point of impact, he was travelling about 20kph and the claimant was "running really fast and trying to get to the bus stop across the road".
(k) When the claimant was impacted, she spun once and then fell to the road. He braked and stopped immediately when he heard the bang and rendered assistance to the claimant.
(l) After the impact, he saw that the claimant was wearing earphones in both ears.
The NSW Police Force
The NSW Police Force attended the scene of the motor accident.
In the Police report dated 29 September 2020, the “Crash Summary Details” of the motor accident are described as follows:
“About 9am on 25/08/2020 Veh 2 has been travelling southbound down Adelphi St, Rouse Hill in lane 1 of 1 at about 20km/hr. Pedestrian 1 has run onto Adelphi Street in an easterly direction from behind a bus where she has run in front of Veh 2 and the two units have collided.”
On 12 October 2020, Constable Scott Norman of the NSW Police Force was interviewed by Mr O’Neill of the Procare Group. I have read the transcript of the recorded interview. In the interview, Constable Norman expressed certain opinions about how the accident happened. I have not given any weight to these opinions in reaching my conclusions and findings. They are merely the opinions of Constable Norman and they do not take into account the totality of the evidence that is before me.
THE INSURER’S SUBMISSIONS
The insurer submits that, on the balance of probabilities, the following factual conclusions can be determined on the evidence available to the Commission:
(a) The insured driver was driving in a sensible manner.
(b) The insured driver was looking ahead and paying attention to his surroundings.
(c) The insured driver was not distracted by anything, and his vision was not obscured.
(d) The insured driver was driving within the speed limit.
(e) The insured driver did not have the opportunity to see the claimant before the accident occurred.
(f) The insured driver did not have the opportunity to take evasive action before the collision occurred.
(g) The insured driver was informed by the claimant that she was running to catch a bus.
(h) The claimant was running to catch the bus across the road and did not stop running before attempting to cross the road.
(i) The claimant failed to perform sufficient head checks before stepping onto the road.
(j) The claimant was wearing earphones while crossing the road and holding a box in her hands.
(k) The claimant contravened rule 236 of the Road Rules which provides that a pedestrian must not cause a traffic hazard by moving into the path of a driver and must not unreasonably obstruct the path of any driver or another pedestrian.
The insurer says that on 10 December 2020, it conceded breach of duty of care. Accordingly, the only issue in dispute is contributory negligence.
The insurer submits that, on the balance of probabilities, the weight of the evidence supports a finding that the applicant was mostly at fault. The insurer maintains that the claimant’s contributory negligence would not be less than 65%. Rather, the insurer submits that the claimant’s contribution to her injuries was in the range of 80% consistent with the finding in Turkmani v Visvalingam [2009] NSWCA 211.
THE CLAIMANT’S SUBMISSIONS
The claimant submits that the insured driver is wholly at fault and that her contributory negligence should be reduced to a percentage lower than 65% for the following reasons:
(a) The insured driver is “wholly at fault” and that her contributory negligence should be reduced to a percentage lower than 50%.
(b) The insured driver has provided inconsistent statements. In his statement to the NSW Police Force, he said that the claimant was running when she fell. She was running from the side where the houses are towards the bus stop on the other side. In his statement on 8 October 2020, the insured driver said that he never saw the claimant at all before the accident.
(c) The CCTV footage reveals that the claimant was seen running along Adelphi Street, crossed Panmure Street, then running at an angle towards the grass verge of the footpath showing an intention to cross Adelphi Street. The claimant submits that the insured driver should have seen her running and coming close to the kerb and the insured driver made no attempt to slow down or take evasive action.
(d) The claimant submits that a reasonable person driving a vehicle that kept a proper lookout would have been aware of their surroundings and would have slowed down should there have been a hazard in sight.
(e) The claimant submits that the insured driver was clearly negligent as he failed to keep a proper look out as a driver of a vehicle as he did not make any attempt to slow down or take evasive action until the point of impact where he braked and then swerved after colliding with the claimant.
CONSIDERATION
The relevant legislation and legal principles
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
In section 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, section 5B(1) of the Civil Liability Act provides that 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), (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that 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, and (d) the social utility of the activity that creates the risk of harm.
In assessing contributory negligence for the purpose of s 3.28(2) of the MAI Act, I have to consider s 5R of the Civil Liability Act.
Section 5R (1) provides that the principles applicable for determining negligence also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
Section 5R (2) goes on to provide that the standard of care is that of a reasonable person in the position of the person who suffered harm and is to be determined on the basis of what that person knew or ought to have known at the time.
McColl JA set out the proper approach to assessment of contributory negligence in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 at [13]-[14]:
“At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J. As the primary judge recognised, the issue of contributory negligence was governed by s 5R of the Civil Liability Act …
The words ‘reasonable person in the position of that person’ in s 5R are equivalent to the words ‘a reasonable person in the plaintiff’s position’: Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports ¶81-818 (at [87]); Carey v Lake Macquarie City Council [2007] NSWCA 4 (at [10]). Section 5R reflects ‘the expectation that, in general, people will take as much care for themselves as they expect others to take for them’: Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports ¶81-815 (at [70]) per Ipp JA (Giles JA and Hunt AJA agreeing).”
Apportionment is an evaluative process. The High Court described the process in this way in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494:
“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 … 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; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
Whether there is any contributory negligence by the claimant requires a determination of whether a reasonable person in the claimant’s position, would have crossed Adelphi Street, when she did, knowing what she did or what she ought to have known at the time.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
Discussion
The insurer concedes that the insured driver owed a duty of care to the claimant, that he has breached that duty and that he is at fault in causing the motor accident.
However, the insurer’s review decision made pursuant to s 3.38 of the MAI Act was to the effect that the claimant was mostly at fault in the motor accident in that her contributory negligence for causing her injury in the accident was in the order of 65%. On that basis and pursuant to s 3.28(2) of the MAI Act, the insurer ceased weekly payments of statutory benefits to the claimant after 26 weeks.
In its submissions to the Commission, the insurer submits that there should be a finding of an even higher degree of contributory negligence in the range of 80% consistent with the finding in Turkmani v Visvalingam [2009] NSWCA 211.
The claimant contends that her contributory negligence should be reduced to a percentage lower than 50%.
Having considered the totality of the evidence, I make the following factual findings.
(a) The claimant was running south along Adelphi Street for some distance before the intersection with Panmure Street.
(b) Before the claimant had crossed the intersection of Panmure Street, a Busways bus was stopped on the other side of Adelphi Street virtually opposite number 7 Adelphi Street.
(c) After crossing Panmure Street, the claimant continued running at an angle towards the grass verge of the footpath and the kerb near number 7 Adelphi Street.
(d) Having reviewed the CCTV footage and considered the claimant’s evidence, I find that the claimant waited on the grass verge near number 7 Adelphi Street for a white car and a small yellow truck travelling north, to pass. The claimant then took about two steps off the kerb onto the roadway whilst looking to her right at the same time.
(e) Prior to the collision, the insured driver was travelling south along Adelphi Street, towards number 7 Adelphi Street.
(f) Having reviewed the CCTV footage, I find that the insured driver was travelling south along Adelphi Street for some distance behind the claimant as she is seen running along Adelphi Street towards the intersection of Panmure Street.
(g) Having reviewed the CCTV footage, I do not accept that the insured driver was travelling at 20kph prior to the intersection of Adelphi Street with Panmure Street and up to the point of impact. I infer that the insured driver was travelling at a speed which was more consistent with the speed limit of 50kph. My finding is also consistent with the insured driver’s description of the force of the impact and the claimant’s description of the severity of her injuries.[1]
(h) For some time prior to the collision, the insured driver had observed that a bus was stopped next to the church opposite number 7 Adelphi Street.
(i) Prior to the collision, the insured driver saw that the claimant was holding a small white box in her hands.
(j) There were no parked cars on either side of Adelphi Street in the insured’s path of travel south along Adelphi Street when the claimant was seen running before the intersection with Panmure Street up to the front of number 7 Adelphi Street.
[1] See A5 and AD3.
In light of those factual findings, I consider that the claimant failed to look to her right before she took about two steps onto the road from the kerb. In doing so, she failed to take reasonable care for her own safety.
For his part, the insured driver failed to keep a proper lookout in circumstances where the claimant failed to take care for her own safety. The insured driver was coming from behind the claimant. He was aware that a bus had stopped near the church on the other side of 7 Adelphi Street before the collision. He saw the claimant running and he thought she must have been running for that bus. He saw her carrying a small white box in her hands. In these circumstances, and in the context of a weekday during the morning peak hour in a residential street with a speed limit of 50kph, I consider that the insured driver failed to pay attention to all of his surroundings and failed to slow down in the face of a foreseeable hazard. If he did, he would have had enough time to take evasive action and avoided the occurrence of the collision.
Some legal principles that are of relevance to the circumstances of the case are summarised by Emmett JA in Dungan v Chan [2013] NSWCA 182 at [15] to [16] as follows:
“15. A driver is entitled to assume that others will observe the rules of the road. However, that does not mean that a driver may proceed at any pace he or she chooses or with complete indifference as to the possibility of a pedestrian emerging from somewhere as the result of accident, miscalculation, ignorance or recklessness. As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue, the real is question is whether, in all the circumstances, the person charged with negligence exercised the degree of care that those circumstances required. The standard of care expected of the reasonable person requires him or her to take account of the possibility of inadvertent and negligent conduct on the part of others (Wheare v Clark [1937] HCA 7; (1937) 56 CLR 715 at 723).
16. The reasonable person would accept that it is not the duty of a driver to drive such that there is no foreseeable risk of injury to others. However, it does not follow that risks may be ignored. One must bear in mind the extent of the damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an oncoming vehicle, the consequent extent of the precaution that a driver must take against that eventuality and the extent of what a driver is able to do when confronted with such a danger. The damage that a driver may do to a pedestrian is great and that is an important matter when deciding what a driver must do. The inconvenience of driving more slowly is to be measured against what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians act carelessly with sufficient frequency that a prudent person would take account of the possibility. Careless behaviour by pedestrians occurs often enough for a prudent driver to foresee it and to take it into account (Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 at 418).”
In the circumstances of this case, having regard to those legal principles and the factual findings that I have made, I apportion fault to the insured driver as to 50% and 50% to the claimant, in the motor accident.
COSTS
There is no reason why the claimant should not be allowed her legal costs in the regulated amount.
I allow the claimant’s costs in the regulated amount of $1,710 plus GST.
CONCLUSION
My determination of the Miscellaneous Claim is as follows:
For the purposes of s 3.38 of the MAI Act, the insurer is entitled to reduce weekly payments of statutory benefits payable to the claimant in respect of the motor accident, by 50%.
The decision takes effect from: 25 February 2021.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulation is $1,710 plus GST.
Member Maurice Castagnet
Motor Accidents Division
Personal Injury Commission
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