Shuk v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shuk v Allianz Australia Insurance Limited [2023] NSWPIC 438
CLAIMANT:	Shuveccha Islam Shuk
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Terence Stern OAM
DATE OF DECISION:	1 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Torts; negligence; motor vehicle colliding with pedestrian; whether contributory negligence greater than 61%; application of the Motor Accidents Injuries Act 2017 section 3.11 and Civil Liability Act 2002 section 5R; Held – the accident was not caused wholly or mostly by the fault of the Claimant.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and cl 7.497 of the Motor *Accident Guidelines* The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was not caused wholly or mostly by the fault of the Claimant. 2. For the purposes of ss 3.28 or 3.36 the motor accident was not caused wholly or mostly by the fault of the Claimant. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, Personal Injury Commission Regulation 2020 is $1,980.00 inclusive of GST.

STATEMENT OF REASONS

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

Background

Shuveccha Islam Shuk (the Claimant) was involved in a motor vehicle accident on 5 March 2021.
On 2 July 2021, the insurer determined that the claimant was mostly at fault for the subject accident.
On 4 August 2021, the Claimant sought an internal review of this decision. By Certificate of Determination of the internal review dated 24 August 2021, the Insurer affirmed its position that the Claimant was mostly at fault. The Claimant has brought this Miscellaneous Claim application to dispute that outcome.

The accident

The Application for Personal Injury Benefits dated 31 March 2021 states that at the Claimant was crossing the road in an attempt to catch a connecting bus on the other side of the road when she was hit by the insured vehicle. More specifically, the insured vehicle ran over her right foot.
The incident was caught on CCTV footage taken from the front of the Collector Hotel out of the front of the EAT GRK Restaurant. I will set out my findings based on the CCTV footage below.
An independent witness, Scott Williams, provided an account of the circumstances of the accident in his signed statement dated 18 June 2021 stating that:
“…he noted a bus stopped on his right and he saw a woman who was hit, get out the front door and walk towards the rear of the bus towards him. He saw the second bus then pull in behind the one from which the claimant alighted, stopping two or three metres behind it. He then saw the claimant step off the kerb onto the road between the two buses and walk quickly out into the second lane. He said that the claimant did not appear to look right to oncoming traffic at all. He then saw a silver Mercedes collide with the claimant on the front driver’s side corner where she stepped out into the path of the car. The car stopped almost on the spot at the point of impact and hit one of the claimant’s feet. He expresses the opinion that the insured driver could not have avoided the collision and that the claimant had stepped out from between the buses without checking traffic on her right. In his opinion, the driver of the car was not travelling excessively fast, and that the driver braked very quickly.”
Glen O’Neil, the Insurer’s investigator, also had a conversation with a further witness, which is recorded in a file note dated 14 June 2021:
“The witness noted that he was waiting for the bus and standing opposite the Collector Hotel at the time of the accident, observing the two buses in a bus lane opposite Smith Street, three metres apart. He then observed that the claimant appeared between the two buses, walking towards Smith Street and towards him. The witness reported that the claimant stepped out from the kerb without looking right at all before the insured vehicle braked and skidded a split second before colliding with her. He expressed the opinion that the claimant was entirely at fault, as she stepped out from the two stationary buses into the car lane without looking first.”
Police interviewed the bus driver of the bus from which the Claimant alighted. He said that his impression of what he saw through the rear vision mirror was that the Claimant emerged between the two buses, and saw the Insured vehicle tried to stop but was unable to and fell into the car when both she and it stopped almost simultaneously.
The Claimant, in her evidence at the Assessment Conference (i.e., the oral hearing) before Member Nolan, said:
“…that as she alighted from the bus and walked alongside it to its rear, she was looking in the direction from which the insured vehicle was travelling. Having viewed the CCTV footage, this does appear consistent with her version of events. She said that she perceived that she had sufficient distance to be able to cross the road and walked behind the bus.”

THE EVIDENCE

The CCTV footage

I have reviewed the CCTV footage of the accident, which was available on Pathways.
Basten AJ said this, in respect of the footage, at [10]:
“The security camera footage which was part of the material before the trial judge shows the claimant walking behind the bus and stepping out onto the lane. At that point, the claimant is looking left and not right. She clearly walks into the path of the oncoming car on her right. The CCTV footage shows the car braking vigorously and stopping on her foot. She suffered a significant injury to her foot and ankle.”
My review of the footage was as follows, by reference to the timestamp:
[0:07]   Claimant enters on the left-hand side of the screen wearing a hat, mask and dark sunglasses. One blue and white bus is parked on screen toward the left-hand side. No other bus is visible.
[0.07-0.10]The Claimant takes about 5 steps towards the back of the bus. No other bus is visible.
[0:10]   Claimant turns herself left and takes about 3 steps across rear of the bus. She is facing straight ahead. No other bus is visible yet.
[0:11]   Claimant steps out onto the road, behind the blue and white bus which is still parked in the same position. She is still facing straight. She has not looked right or left. No other bus is visible yet.
[0:12]   Claimant takes about 2 steps. She has not looked right or left at all. No other bus is visible yet or parked.
[0:13]    Claimant now looks left as she continues walking onto the road. She does not turn her head right.
[0:14]   Claimant looks down toward the ground. The front left side of the car clips the claimant and makes contact with the Claimant. She grabs the car to steady her balance as she falls with her right arm and her left hand reaches the ground. The car reaches a dead stop. The Claimant is crouched over front of the car. She does not fall off her feet.
[0:15]   Claimant is crouched over the front left light of the car.
[0:20]A red bus starts appearing in the frame.
[0:21]Claimant is still crouched over the front left light of the silver car. A man comes to help the Claimant and see if she is okay.

Claimant’s Submissions 20 June 2022

I briefly summarise the Submissions:
[2]If found guilty of contributory negligence, the degree of her negligence was no higher than 35%.
[3]By virtue of s 4.17 of the Act, s 5R of the Civil Liability Act 2002 applies as interpreted by the Court of Appeal in T and X Company Pty Ltd v Shivas [2014] NSWCA 235.
[4]Refers to Truong v Gordon [2014] NSWCA 67 at [21].
[6]The Driver was not keeping a proper lookout, she had sufficient time to see the Claimant and take steps to avoid the collision.
[7]The CCTV footage shows the movements of the Claimant but not of the Insured Driver or the vehicle immediately prior to the collision. The Claimant had walked to the point of collision a distance of about 3.5-4 metres before being struck. The Insured Driver had ample vision to, firstly, see the pedestrian in the middle of the roadway, or to have been alert to the possibility that there may be pedestrians and traffic wanting to cross the road. The Insured driver should have reduced her speed and been alert to the possible presence of the Claimant on the roadway and have been in a position to have reacted and at least apply the brakes before impact. There was no traffic ahead of the bus obscuring the driver’s vision. The Claimant is walking alone, just prior to the collision, and is clearly visible to a driver paying proper attention.
[11]The location of the accident was a high pedestrian area. The Insured driver should have exercised a higher duty of care in looking ahead or to the left for pedestrians exiting the bus. The driver failed to see the Claimant at the time when she might have braked or swerved to avoid collision.
[12]Refers to Manley v Alexander (see paragraph 24 below).
[13]A driver is not required to predict every possible event that should happen around them, it comes down to what a reasonable driver would have done in the circumstances by way of response to a foreseeable risk of injury or danger to another road user. Where the pedestrian (Claimant) was crossing the road in the high pedestrian area has been in the driver’s view for a reasonable distance and the driver failed to slow the vehicle, the driver must take most of the responsibility.
[15]Refers to s 3.28(2).
[16]States that I do not need to determine that someone was at fault. Rather, I am required to be satisfied that the Claimant was wholly at fault.
[17]On the available evidence, the Claimant was not wholly or mostly at fault.

The Submissions of the Insurer 20 December 2021

I briefly summarise as much of the Submission as deals with the dispute, noting that:
[7] The Insurer concedes it bears the onus of proof that the Claimant was wholly or mostly at fault and submits that the Claimant’s level of negligence was in the order of 80%.
[8]Repeats the summary of the injury in the APIB dated 31 March 2021.
[9]Refers to the NSW Ambulance Report.
[10]Refers to the Westmead Hospital Discharge Summary.
[12]Refers to the NSW Police Report of 19 April 2021. The estimate of the Insured Driver’s pre-crash speed was 45 km/h. Further refers to the Crash Summary Details:
“At 14:45 Hrs on 5 March 2021, a 21 year old female was attempting to cross Smith Street, Parramatta. Approx. 75m from the intersection of Philip Street, the pedestrian crossed without looking both way and was struck by a 45 year old female driving a 2021 Mercedes who was unable to react in time. The vehicle collided with the pedestrian causing an injury to the right ankle.”
[13]Refers to the narrative created by Constable Bogaerts on 15 March 2021:
“About 2:45pm on Friday the 5th of March 2021, the ped1 exited the bus at the bus stop on the Eastern footpath of Smith Street, Parramatta. This is a divided road with a dedicated bus and single lane on each side. The pedestrian walked towards the rear of the stationary bus and in front of another stationary bus in an attempt to cross the road away from the traffic signals. During this time, dr2 was driving veh2 and turned right in to [sic] Smith Street from Phillip Street. Ped1 walked on to the road and looked only to her left ignoring oncoming traffic. Ped1 at the time was also wearing earphones.
Dr2 sighted the pedestrian and was unable to brake sufficiently to avoid contact. . . .
A form of demand was obtained from dr2 who stated she was unable to stop to avoid the sudden collision. A number of witnesses and CCTV footage confirmed ped1 was at fault.’”
[14]Police Records refer to the question put to the Claimant as to why she did not cross at the traffic lights and to her response:
“‘[b]ecause my bus was too early and I didn’t want to be late for work”
[15]Refers to Constable Bogaerts’ conclusion after reviewing the CCTV footage:
“Police can confirm... she walked out between two buses”
[18]Refers to Question 80 of Glen O’Neil’s documents:
“She’s walking back. She’s got sunglasses on, a pink cap. She’s looking to her left, doesn’t look right. The car stops and it stops right on her foot. . . It does seem she’s got something in her ears as she’s walking, and a pink cap, and her sunglasses. And, a mask. COVID type mask. And she’s carrying a small handbag. She’s not knocked at all. Looks like the damage is really done by the car stopping on her foot. She wasn’t impacted particularly harshly but it looks like the vehicle stopped on her right foot. . .”
[20]Refers to the statement of Ashtarout Mokdad:
“The accident occurred at Smith Street, Parramatta near the intersection of Philip Street. The direction Smith Street runs in is north south. I remember there was a painted bus lane in each direction and a single car lane in each direction. , , , The accident happened about 75 metres south of Philip Street. . . . What happened was I turned right from Phillip Street in Smith Street to head south towards the station. I then travelled the single southbound lane of Smith Street at about 45 to 50km/h at most. I doubt that I had much distance after turning to even get to that speed. I saw there were 2 buses parked on the left side of the road about 75 metres south of Philip Street but I saw no other pedestrians about. I did not see any other vehicles heading my direction but there were cars coming toward me in Smith Street. I was looking directly ahead and focusing on the road. Next thing when I was about halfway along the length of the rear bus when I first saw the pedestrian pop out between the two buses that were only a metre or two apart. She appeared to be looking directly across the road and not in my direction. She then did not stop at all and stepped into the line of traffic in front of me. I only had a split second to react and I applied the brakes hard. I was able to stop just as she reached the front passenger side of my car but the front tyre stopped right on her foot. . . . I had a good open view to the front, left and right of my car. I was not distracted by anything and I was not on the phone or talking to my husband at the time. . . I believe the female pedestrian was entirely at fault as she stepped out between 2 buses on my left as I was passing them. I had no chance to take evasive action to avoid the collision. Luckily, I was not going too fast and I was able to stop almost on the spot but unfortunately it was on her foot.”
[21]States that from the location of accident to the traffic lights at George Street, was only 24.42 metres. Submits that the Claimant could have also utilised the traffic lighted crossing in the other direction, at the intersection of Smith Street and Philip Street, which was 98.35 metres away.
[22]Refers to the statement of the independent witness:
“I noted a bus stopped on my right and I saw the woman who was hit get out of the front door and walk towards the rear of the bus towards me. She was a younger woman in her twenties and I remember she had airpods or similar in her ears. . . I saw a second bus then pull up behind the one she got off and it stopped about 2 or 3 metres behind the front one. I then saw the female step off the kerb onto the road between the 2 buses and walked fairly quickly out into the second through lane. The woman did not appear to look right at all and the next thing I saw was a silver Mercedes hit on the front driver’s side corner as she stepped into the path of the car. The car stopped almost on the spot at the point of impact and actually on one of the woman’s feet. The woman was sort of half down on the road and leaning on the bonnet of the car. . . . In my opinion the driver of the car cold [sic] not have avoided the collision and the female pedestrian stepped out from between the buses without checking for traffic on her right. I thought the driver of the car was not travelling excessively fast and the driver braked very quickly.”
[23]Refers to the file note of the independent witness referred to in paragraph 7 above.
[26]Refers to Podresebek v Australian Iron & Steel Pty Ltd (1985) 59 ALRJ for the Insurer’s Submission that the Claimant was responsible to the extent of 80%. Refers to the objective evidence:
(a)The CCTV footage – the Claimant did not look right before she crossed the road.
(b)She was in a hurry to make her connecting bus. She was wearing earphones.
(c)The Insured driver was travelling at below the speed limit and at a sufficiently slow speed as well as maintaining a proper lookout. She was able to bring her vehicle to a stop almost immediately.
(d)The Claimant had the superior vantage point of observing the oncoming Insured vehicle. On her evidence, the Insured vehicle was approximately 15 metres away. The Insured driver was parallel to halfway along the length of the rear bus when she first saw the Claimant pop out between the two buses and therefore only had a split second to react. The Claimant clearly had the greater opportunity to avoid the collision.
(e)The Claimant decided to cross illegally in a bus lane, popping out of a 1-2 metre gap between the two buses. She deliberately chose not to cross at the traffic light pedestrian crossing, only 24.42 metres away. By doing so, she obstructed herself from view of other drivers which made it particularly dangerous given it was peak hour traffic.
[27]Any negligence on the part of the Insured driver is significantly outweighed by the negligence of the Claimant such that she was 80% responsible.
[28]Refers to Davis v Swift [2014] NSWCA 458, where an 80% contributory negligence finding was assessed in not entirely dissimilar circumstances.
[29]The Claimant was mostly at fault.
[30]Refers to the various evidence by way of CCTV footage, mobile phone copy of the CCTV footage, bodycam footage from NSW Police.

The Insurer’s Submissions 23 June 2022

These Submissions are in reply to the Claimant’s Submissions:
(a)Distinguished Truong. The Insured Driver did not have reasonable time to see the Claimant, slow down, or avoid her.
(b)Refutes the claim that the driver was not keeping a proper lookout. Refers to the statement of the Insured Driver, to the effect that she was keeping a proper lookout. Also refers to the statements of independent witnesses.
(c)While the CCTV footage may support the Claimant’s Submission that she had walked 3.5 to 4 metres before being struck, submits that this is not relevant. What is relevant is the time and distance over which the Claimant could be observed as she walked across the roadway, not the distance that she traversed.
(d)What is apparent from the CCTV footage is that from the time when the Claimant stepped off the kerb, to the point at which she was struck, was not more than 2 seconds, noting that the Claimant would not have been visible to the Insured Driver for the entire period, submits that the evidence establishes that there was insufficient time available to the Insured to do anything other than what she did. The Claimant did not look before stepping into the path of the Insured vehicle. Had she been keeping a proper lookout, the accident would not have happened.
(e)The footage, together with statement of witnesses, support the Insurer’s submission that the Claimant was wholly or mostly at fault.
(f)The Claimant did not look before stepping into the path of the Insured vehicle.
(g)The Insured was driving appropriately in the circumstances. Immediately the Claimant could be observed. The Insurer took evasive action by braking.
(h)It was not reasonably foreseeable that a pedestrian would attempt to cross a roadway in an area in such close proximity to two traffic control pedestrian crossings. It was even less foreseeable that the pedestrian would emerge from between two stationary buses.
(i)Refers to s 5D Civil Liability Act 2002.
(j)No liability unless foreseeable, not insignificant, and a reasonable person would have taken those precautions.
(k)Refers to Derrick v Cheung (2001) 181 ALR 301.
(l)The driver was not required to know or predict everything.
(m)Refers to Mobbs v Kain [2009] NSWCA 301, per McColl JA:
“It is not reasonable … to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is … the product of impermissible hindsight reasoning.”
(n)Submits that the factual circumstances are akin to those described by the High Court in Derrick v Cheung and the Court of Appeal in Knight v MacLean [2002] NSWCA 314.
(o)Submits that had the Claimant looked, she would have seen the approach of the Insured vehicle. The Claimant’s contributory negligence should be assessed at not less than 80%.

LEGAL FRAMEWORK

The Motor Accident Injuries Act provides for payment of statutory benefits for loss of earnings and medical expenses for persons injured in motor vehicle accidents for a period of 26 weeks after the accident without a requirement that the claimant prove fault. There was no dispute that the claimant was entitled to such payments, which were made by the third-party insurer, Allianz, in accordance with the scheme in Pt 3 of the Act. The dispute arose as to whether the claimant was entitled to continuing payments after 26 weeks.
That turned upon the application of s 3.11, which, at the relevant time, read as follows:
“3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
It was accepted that par (b) was satisfied: the claimant’s injuries were not limited to “minor injuries”. The dispute was as to whether the claimant’s contributory negligence was greater than 61%. The member concluded that there was contributory negligence but assessed it at 25%.
The assessment of contributory negligence is undertaken in accordance with the requirements of s 3.38 of the Act, which relevantly provides:
“3.38 Reduction of weekly statutory benefits after 6 months for contributory negligence
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.
...
(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—
...
(b) by such percentage as the parties agree, or
(c) in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.”
Reference to the “common law” may be disregarded for present purposes. “Fault” is defined in s 1.4 to mean “negligence or any other tort”. The member accepted that the assessment as to the “fault” of the claimant was to be made by reference to contributory negligence, in accordance with relevant provisions of the Civil Liability Act 2002 (NSW) (‘CLA’).
Section 5R of the CLA provides:

“5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose--
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

CASE LAW

In Podresebek v Australian Iron & Steel Pty Ltd [1985] HCA 34, the unanimous decision of the High Court held at [8]:
“A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds"… Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury... In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.” [omitting citations and cases referred to]
It continued [10]:
“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.” [omitting citations and cases referred to]
In Manley v Alexander [2005] HCA 79, the majority, consisting of Gummow, Kirby and Hayne JJ, held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
Derrick v Cheung [2001] HCA 48 was a unanimous decision of Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ. The facts, briefly, were that the Appellant was driving along a busy road in an easterly direction when and infant suddenly emerged between two parked vehicles. The Appellant braked and attempted to avoid the infant by veering to her right. The vehicle skidded and collided with the Respondent, throwing her to the road and causing serious injury.
The Trial Judge [4], who was trying liability only, found that it was clear on the evidence that as the Appellant approached the point at which her vehicle struck the infant:
“… the combination of parked cars on her left, and a tree and some shrubs by the side of the footpath, prevented her from seeing [the infant] and having any opportunity to do so until [she] appeared on the roadway. [The Trial Judge]… held that the [infant] had moved very quickly onto the roadway…”
The Court held at [13]:
“… there was no basis upon which any finding of negligence on the part of the Appellant could be made… Even if the inference… that if the Appellant’s speed had been lower by a few kilometres per hour, she would have been able to avoid her collision, was more than speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, an absolute term inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. The test remains whether the Plaintiff has proved that the Defendant, who owed a duty of care, has not acted in accordance with reasonable care…”
In Mobbs v Kain [2009] NSWCA 301 the Court held at [2]:
“The trial judge did not find a particular speed at which, in the exercise of reasonable care, the second appellant should have been travelling when passing the bus. He found at [69] that the second appellant drove at a speed which was excessive in the circumstances. By this I understand him to have meant the speed to which he had referred earlier in that paragraph as “a speed which would have permitted the second defendant to stop if the plaintiff had emerged from behind the bus in the way he did”.
It continued at [103]:
“It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury…”
In Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788, Basten AJ held at [31]-[32]:
“The member’s bald statements that the driver should have been going at a speed which would have allowed her to avoid hitting the claimant obscured the need to ask (i) at what distance the driver should have seen the claimant; (ii) at what speed would she necessarily have been travelling to avoid hitting the claimant, and (iii) did reasonable care for other road users require that she not exceed that speed. As is well known to those involved in motor vehicle cases, there is always a reaction time to be taken into account and a calculation based on the rate of deceleration upon applying the brakes. A vehicle travelling at 36 kph would cover 10 metres in each second. The findings of fact made by the member did not permit any calculation as to the speed which would have been the maximum speed in order to avoid the collision. If that speed were less than 40 kph, there may have been a question as to whether, even in an area where there are bus stops, reasonable care required drivers to proceed at a lower speed. It was legal error to approach the issue of the insured driver’s fault by referring to an indeterminate “appropriate” speed, and not answering the questions identified above.
Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed. The insurer was correct in asserting that the member failed in a material respect to apply the correct legal principle.”
Basten AJ further said at [38]:
“The principle to be derived from Anikin is not that the driver’s level of culpability will, almost inevitably, be greater than that of the pedestrian, but rather that each case must be assessed according to its own circumstances and in some the driver may bear no responsibility at all.”
Anikin v Sierra [2004] HCA 64, the bench consisting of Gleeson CJ, Gummow, Kirby, and Hayne JJ, dealt with the case of a young man, seriously injured on Epping Road, when he was struck by a bus while he was a pedestrian. Mr Anikin was walking on the outside lane of the road when the bus hit him, striking him head-on on the front corner of the front corner of its left-hand side.
The Trial took place in the District Court of NSW, with the Trial Judge entering judgement for Mr Anikin, reduced by 25% for contributory negligence.
At the time of the incident, it was “twilight to dark” [10] and Mr Anikin’s clothing was dark in colour.
Just prior to the point of impact between the bus and Mr Anikin, the footpath ran out. There was no sign indicating the continuing pedestrian access by way of steps or by resumption of a safe footpath. On the opposite side of the road, there was bushland and there was no footpath.
The Court said at [46]:
“…Here, there was a range of visibility available to the bus driver, a professional motorist, if he were keeping a proper lookout. Most importantly there was an unimpeded capacity to move the vehicle to the right. Had that been done, even at a later stage, the serious injury to the Appellant would have been avoided. True, the Appellant was obliged to keep a proper lookout for his own safety. However the bus driver, who was in charge of a powerful vehicle, had obligations to exercise care for pedestrians in the position of the Appellant.”
In Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Basten JA restated the relevant principles arising from the legislation and the common law:
(1)Damages to be reduced by such percentage as the Court think just and equitable in the circumstances.
(2)The legislation provides that common law and the enacted law as to contributory negligence apply to an award of damages.
Basten JA then went on to deal with the standard of contributory negligence referring to s 5R of the Civil Liability Act 2002:
(1)General principles in s 5B apply.
(2)Where the Plaintiff is a pedestrian and the Defendant is a driver of a vehicle, the negligence of the Defendant is to be assessed against the risk of harm to the Plaintiff, while the contributory negligence of the Plaintiff is to be assessed against the risk of harm to him.
Basten JA continued at [19]-[20]:
“… because the proof of contributory negligence lay with the driver, who had an interest diminishing the degree of his responsibility, to the extent that he did not undertake that task, he could not be heard to complain if the assessment of contributory negligence was less than it should have been.”
“…the responsibilities of each for the accident fell within a similar range. Thus, each should have seen the other in ample time to take evasive action.”

CONSIDERATION

I am required to determine whether the Claimant was ‘wholly or mostly at fault.’ The concept is an artificial construct but does require an evaluative judgement on the evidence.
At the risk of duplication, I repeat by way of emphasis, key parts of the evidence:
·Oral evidence
“…As she alighted from the bus and walked alongside to its rear, she was looking in the direction from which the insured vehicle was travelling… (believed) that she had sufficient distance to be able to cross the road and walked behind the bus..”
·Constable Bogaerts
Obtains CCTV footage from Collector Hotel. With cameras outside.
·Ashtarout Mokdad Statement
[34].. She was also wearing a cap, sunglasses, a Covid mask and she had earbuds in her ears. I saw all of that after the accident.
[35]… Had turned right from Phillip St in Smith St… Travelled in a single southbound land on Smith St at about 45-50 km/h… At the most…
[36] Saw that there were two buses parked on the left hand side of the road, about 75 metres south of Philip St, but I saw no other pedestrians about and I did not see any other vehicles heading [in] my direction…
[37] I was looking ahead and focusing on the road. Next thing when I was about halfway along the length of the rear bus, when I saw the pedestrian pop out between the two buses that were only a metre or two apart. She appeared to be looking directly across the road and not in my direction.”
·Scott Thomas
[8] Was walking to pick up my child out along Smith St, past the Collector Hotel.
[9] A bus stopped on my right, and I saw the woman… get out of the front door and walk towards the rear of the bus towards me.
[10] I saw a second bus then pull up behind the one she got off and it stopped about two or three metres behind the front one. I then saw the female step off the kerb onto the road between the two buses and walk fairly quickly out into the second through lane.
Viewed carefully, the CCTV footage is helpful in showing what happened. Firstly, Mr Thomas was incorrect in what he said at [10]. The second bus did not pull up as he said, nor did the Claimant walk between the two buses. Rather, the second bus pulled up about 6 seconds after the accident. Further, as a matter of common sense, the second bus would have taken some time, in slowing down from whatever speed it was travelling at, before pulling up, and this would have affected the amount of time that would have been available to the Insured driver to observe the presence of the Claimant, assuming the driver was keeping a proper lookout.
The Claimant stated in her evidence at the Assessment Conference that as she stepped off the bus and walked alongside to its rear, she was looking in the direction from which the Insured vehicle was coming. She told Member Nolan words to the effect that she perceived that she had sufficient distance to be able to cross the road and walk behind the bus. There is no reason to doubt the truthfulness of that testimony. The Claimant has been, for example, honest about having to catch the bus on the other side of the road and about not having looked to the right before she actually stepped onto the road.
The next significant fact I find is that the Insured driver was looking directly ahead and “focusing on the road.” Had she been keeping a proper lookout, I infer that she would, on the balance of probabilities, have been able to see the Claimant, who had left the back of the parked bus well before the arrival of the second bus, which was not in the CCTV frame until after the accident had taken place.
Significantly, the Insured driver states [36]:
“…saw there were 2 buses parked on the left side of the road about 75 metres south of Phillip Street…”
This is inaccurate as the second bus did not arrive at the point where it parked until after the accident.
The Insured driver further says [37]:
“Next thing when I was about halfway along the length of the rear bus when I first saw the pedestrian pop out between the two buses that were only a metre or two apart.”
This is also incorrect as the second bus had not arrived until after the accident.
Mr Thomas is wrong when he says that he saw the second bus pull up behind the first one, that it stopped about two or three metres behind the first one and then he saw the female step off the kerb onto the road between the two buses. That account is clearly contradicted by the CCTV footage, properly and carefully observed.
From a viewing of the CCTV footage, taking into account the other available evidence, it is clear that the Claimant did not look to the right at the point immediately before the point at which she stepped out from behind the bus, onto the roadway, whether or not she had looked to the right previously, she did not look a second time.
From careful viewing of the CCTV footage, when the Claimant turned to the left behind the bus, she walked about 5 steps, before reaching the point of impact. On the balance of probabilities, the Claimant would have been visible to the Insured, had she been keeping a proper lookout, rather than focusing on the road ahead of her as she said she was doing.
I accept as truthful and correct, the evidence given by the Claimant at the Assessment Conference (the oral evidence), where the Claimant said that she was looking in the direction from which the Insured vehicle was travelling and that she perceived that she had sufficient distance to be able to cross the road and walk behind the bus.
In evaluating the comparative culpability of the Claimant and the Insured driver, I take the following factors into account:
(a)    The Claimant should have looked to the right before she stepped onto the road, she did not. Given that I accept that she had previously observed the Mercedes and considered that she had enough time to cross the road, by not looking to the right a second time, she took a risk of the harm which eventuated.
(b)    She was wearing earbuds, presumably to listen to music. Had she not been wearing them she would have heard the vehicle approach.
(c)    The Insured driver probably would have been able to see her, had she been keeping a proper lookout, both peripherally as well as looking straight ahead. The Driver was approaching a parked bus and there was a clear inference available to her that people (as it happened, including the Claimant) might be getting off the bus, and some might want to cross the road.
(d)    The Claimant took about 5 steps before colliding with the bus and this should have been visible to the driver, had she been keeping a proper lookout.
(e)    The second bus did not actually arrive until about 6 seconds after the accident.

Balance of probabilities

I note that the onus of proof rests on the Insurer, and this has been conceded by the Insurer (see also Insurance Australia Limited t/as NRMA v Richards [2023] NSWC 909 at [39]).
The issue I must determine is whether the Claimant was wholly or mostly at fault. I do not find that she was wholly or mostly at fault as defined because, on the balance of probabilities, the Insured driver, was also significantly (see [56] below) at fault for failing to keep a proper lookout and observe the Claimant in time to stop and avoid the collision.
In determining the apportionment on the balance of probabilities, I find that the Claimant was less than 61% at fault for the accident happening.
In coming to an evaluative view of the balance of probabilities, I have taken into consideration the principles articulated in the New South Wales Court of Appeal decision Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20.
McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities at [16]:
“…for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’…”
McCallum JA continued at [16]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches…”
Her Honour referred at [17] to what Hodgson JA wrote extra-curially:
“… the two approaches could be combined … if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’...”

DETERMINATION

On my evaluation of the evidence, it is just and equitable to determine:
(a) For the purposes of s 3.11 of the Act, the accident was not caused wholly or mostly by the fault of the Claimant.
(b) For the purposes of s 3.28 of the Act, the accident was not caused wholly or mostly by the fault of the Claimant.
I assess the Claimants costs in accordance with the Motor Accidents Injuries Regulations 2017 at $1,980.00 including GST.

[2023] NSWPIC 438

1 September 2023