Sleiman v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sleiman v Allianz Australia Insurance Limited [2023] NSWPIC 538
CLAIMANT:	Tony Sleiman
INSURER:	Allianz
MEMBER:	Bridie Nolan
DATE OF DECISION:	16 October 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the accident was caused mostly by the fault of the injured person; determination on the papers; motor vehicle accident on inner city laneway; pedestrian tunnel opened up onto laneway; pedestrian injured by taxi which failed to stop in time to avoid collision; pedestrian failed to look for oncoming traffic; evidentiary onus borne by insurer; Held – evidentiary onus discharged; breach of duty of care by insured found; contributory negligence found in greater proportion to insured driver; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 2. The effective date of this decision is 26 August 2022. 3. The amount of the claimant’s costs in the matter is $3,500 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

On 26 August 2022, the claimant, a pedestrian, exited a tunnel from Darghan Street to Bridge Lane, Glebe before he stepped onto the roadway and collided with the insured vehicle.
On 15 December 2022, the insurer advised it did not accept liability for payment of statutory benefits beyond 26 weeks from the date of the subject accident on the basis the claimant’s contributory negligence was assessed at 70%.
The claimant sought internal review of this determination. The insurer issued its internal review certificate on 6 January 2023, maintaining the claimant was contributorily negligent to the extent of 70% and therefore mostly at fault for the subject accident.
The claimant has applied to the Personal Injury Commission (Commission) to determine pursuant to Schedule 2, cl 3(e) whether for the purposes of s 3.28 of the Motor Accident Injuries Act 2017 (the Act) the accident was caused mostly by the fault of the injured person. The insurer maintains that the claimant was mostly at fault for the subject accident.

MATERIAL BEFORE ME

The place where the accident occurred is depicted in the following Google map images:
[IMAGES UNABLE TO RENDER]
The claimant’s application for Personal Injury Benefits states that at approximately 6:30am at the intersection of Bridge Lane and Darghan Street, Glebe, he was exiting the tunnel to cross the road when he was struck by the insured driver. The application stated:
“I was walking to work and struck from my left foot by the vehicle trapping my foot underneath the right wheel temporarily until I could remove it.”
In a statement dated 26 August 2022 the claimant stated relevantly:
“7. There is a brick wall on either side of the tunnel that obscures my view and as soon as I stepped out from the tunnel I was on the road as there is no footpath. As soon as I stepped out a taxi came from my left side and collided into me. At the time I was looking towards my right.
8. My left foot was trapped beneath the right tyre of the vehicle until I could remove it. I was in a lot of pain and in no condition to exchange details with the driver.”
The NSW Ambulance report recorded:
“PT STATES CAME OUT OF SIDE PASSAGE STATES TAXI ROLLED OVER HIS LFT FOOT AT LOW SPEED.”
The NSW Police report stated:
“About 0630hrs, the pedestrian was exiting the pedestrian only tunnel in a north westerly direction. This tunnel has poor visibility for pedestrians when stepping onto the road. The VOI has approached the intersection travelling under 30kmph when the pedestrian has suddenly stepped out from the tunnel. The VOIs front right wheel has ran over the foot of the pedestrian. Injuries are not confirmed at this stage.”
An acquaintance of the claimant who frequents his café, who witnessed the claimant following the accident, gave a statement dated 26 August 2022. He said relevantly:
“8.     On the date of the accident, at approximately 6:30AM, I was walking out of the tunnel located on Bridge Lane in Glebe, towards Darghan Street. When I came out of the tunnel I saw Tony on the ground. Stood next to him was a taxi driver and two traffic controllers.
9.      I witnessed Tony trying to stand up however he could not, due to the pain in his ankle. Tony and the taxi driver both appeared distraught.
10.    I asked Tony if he wanted me to notify anyone and he asked me to tell his employees in the café where he was.
11.    I was wearing my work uniform which is a navy blue top and black joggers.
12.    I was not talking to Tony before the accident and there was no else present at the scene of the accident that appeared to be an acquaintance of Tony.”
At the request of the insurer, an investigator undertook investigations into the circumstances of the accident and obtained a statement from the insured driver, his rear seat occupant, and a written response from the claimant’s lawyer as to the circumstances of the accident.
In the insured driver’s statement of 14 November 2022, he stated relevantly as follows:
“27….    I was then travelling east on Bridge Lane, at about 30 km/h just before the accident happened. It is a narrow street, I have travelled on it before, at least once per week for the last 2 years and know to travel slowly to be careful because it is narrow.
28…    There were cars parked on my left side, in Bridge Lane near the Reece Plumbing premises where they often park. I stayed to the right side of the lane for that reason, because of the narrow street…
29…    As I drove past a walkway that goes under the railway line, I heard a scream. I stopped immediately and carefully got out of the car. When I got out the nose of the taxi was just past the entrance to the pedestrian walkway so the nose of my taxi was on the city side of the walkway.
30…    I had been focussing on the lane ahead of me, and there were traffic controllers up ahead about 40 metres away and I was watching them. I was not expecting anyone to step out from this tunnel straight onto the roadway.
32…    He was with a male, who was wearing a sloppy joe sweater that had the Reece Plumbing logo on it. The pedestrian (the claimant) later told me, when he was in the back of the ambulance, that he walks that way everyday with people from Reece Plumbing. He also told me he owns a coffee shop on Piermont (sic) Bridge Road. He had a parcel with him, with uniforms in it, and he asked me to take it to the coffee shop he runs, which I later did.
33…    When he was in the ambulance, I said I was sorry and he said ‘you did nothing wrong, I didn’t look’.
38…    The only damage to my car was the driver’s side mirror that was pushed in and I pulled it back into position easily, as it is spring loaded. I believe that is the area of the taxi where the pedestrian impacted, which again confirms my taxi was past the laneway when he stepped out onto the roadway.
39…    My taxi has front and rear sensors, with one on the side of the front bumper bar, but they were not activated before the accident. That also indicates to me that the front of the taxi had passed him when he stepped out.”
The rear seat passenger of the insured vehicle provided a statement dated
26 November 2022. Relevant extracts are as follows:
“12… I was seated in the rear seat of the taxi, on the passenger side.
13… I clearly saw this accident as it happened. I saw a male pedestrian walk out of a foot tunnel that runs underneath the light rail tracks. He had another male pedestrian walking with him.
14… I saw the first male pedestrian step out from the foot tunnel, talking to the second male, and the second male pedestrian appeared to notice the taxi and I saw the second male pedestrian reach out his arm in front of the first pedestrian but the other guy was busy talking to him and kept walking, and he ended up on the bonnet of the car.
15… From what I saw the taxi driver, […], did not have time to avoid the pedestrian.
16… I spoke to the male person who was with the pedestrian. To the best of my recall, it was a blue shirt he was wearing and he said something about that’s where he works. There is a plumbing place on the corner near to the accident. He told me the pedestrian owns the café on the main street and he was his good friend.
17… I heard the male pedestrian say to [the taxi driver] words like ‘it’s not your fault, I just walked out, he wasn’t looking where he was going, don’t worry’.”

SUBMISSIONS

Claimant’s submissions

The claimant submits that the insured driver failed to keep a proper lookout, causing a collision with the claimant. He submits that the insured driver ought to have been driving within the speed limit and taken greater care when driving on a road connected to pedestrian pathways. He submits that had the insured driver been driving within the speed limit, he would have been able to apply brakes in time to avoid the collision. He relies upon Warth v Lafsky [2014] NSWCA 94 where in which McColl JA said at [56]:
“Notwithstanding the conclusion in Derrick v Cheung … it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines…”
The claimant denies that he was talking to another person when exiting the tunnel, and allegedly distracted, as he was walking alone. In response to paragraph 32 of the insured driver’s statement where he notes the following:
“He was with a male, who was wearing a sloppy joe sweater that had the Reece Plumbing logo on it. The pedestrian (the claimant) later told me, when he was in the back of the ambulance, that he walks that way every day with people from Reece Plumbing.”
The claimant submits that he does not have any friends at Reece Plumbing, he was walking by himself at the time of the accident, and he walks to work by himself every day.
The claimant refers to paragraph 40 of the insured’s statement where he states that the claimant had someone walking beside him and this person (a male) reached out to pull him back from the roadway as the pedestrian stepped out. The claimant relies upon the witness’ statement as set out above to the effect.

Insurer’s submissions

The insurer submits that it is apparent from the evidence, including the photographs taken at the scene of the accident that the incident occurred as the claimant exited the tunnel and stepped from the footpath, onto the roadway, into the side of the insured vehicle.
It submits that absent from the evidence is any assertion or statement made by the claimant that as he walked out of the tunnel, he stopped on the footpath to look for oncoming traffic. To the contrary, in response to the questions posed to the claimant, he stated:
“11… The claimant had to step forward to look for cars as the brick wall on either side of the tunnel obscured his view.
13… As the claimant stepped out from the tunnel, the taxi hit him from his left side. He was looking to his right at the time.”
It relies upon the insured driver’s evidence of a conversation with the claimant after the incident, where it is alleged, he admitted that he had not looked for oncoming vehicles, and that the incident was not the fault of the insured driver.
The insurer acknowledges the footpath in the area was limited, however, it submits that there was sufficient footpath for the claimant to stop and observe the approach of any oncoming vehicle before stepping out and that the claimant’s failure to do so was the sole and only cause of the accident.
The insurer refutes the claimant’s submission to the effect the speed travelled by the insured vehicle was excessive. It submits that there is no evidence to support this submission. To the contrary, the evidence indicates the nature of the injury sustained by the claimant was due to the relatively low speed travelled by the insured vehicle. In this respect, the insured immediately brought the vehicle to a halt after hearing the claimant’s scream. His evidence is that the nose of the taxi remained within the tunnel after he brought the vehicle to a stop.
It submits that not only does this evidence establish the insured driver was not travelling at an excessive speed, but it also establishes that he had no opportunity to observe the movement of the claimant and that the evidence supports a finding that after the claimant exited the tunnel, he stepped out from behind the brick walkway, into the side of the insured vehicle, with the impact occurring around the area of the right tyre/side mirror of the vehicle.
In the circumstances, there was no opportunity available to the insured to observe the presence of the claimant. Further, there was no opportunity for the insured to stop to avoid collision as it was not the front of the insured vehicle which struck the claimant but rather, the claimant walked into the side of the vehicle. Accordingly, the submissions made by the claimant to the effect that the speed at which the insured driving was too fast, should be disregarded.
The evidence as to the circumstances of the accident indicate the actions of the insured were not contributory to the accident and that it was the claimant’s actions alone, in stepping out from an obscured walkway, onto the roadway without first stopping to check for oncoming traffic which was the cause of the collision.
It submits that the claimant’s statement confirms he did not look to the left before he stepped out and was struck by the insured driver, commenting “at the time I was looking towards my right.” The claimant’s response to the investigator’s questionnaire also noted he was looking to the right when he emerged from the tunnel.
The insurer submits that it was not reasonably foreseeable that a pedestrian would step out onto the roadway, without first stopping and looking.
The insurer submits the duty of care owed by the insured did not require him to slow down to a lesser speed than what he was travelling. It relies upon Mobbs v Kain [2009] NSWCA 301, where McColl JA carried out an extensive review of the authorities as to the duty of reasonable care to be owed by a driver of a motor vehicle, particularly in circumstances involving irrational or unpredictable conduct on the part of a pedestrian. At [103] her Honour said:
“It is not reasonable, in my view, to require [the driver] to slow down to whatever speed would have avoided the accident. Leaving aside the high level of obstruction at which such a conclusion is expressed and its failure to address a particular risk, it is in my view, the product of impermissible hindsight reasoning.”
The insurer submits the factual circumstances of the accident are akin to those described in Derrick v Cheung [2001] HCA 48; 181 ALR 301 and Knight v Maclean [2002] NSWCA 314. It submits that to find the insured driver breached his duty of care to the claimant would impose a form of strict liability, which is not law.
The insurer submits the evidence is incontrovertible in that, had the claimant stopped and looked, he would have seen the approach of the insured vehicle which was travelling at a speed of not more than 30 kmph and below the speed limit. Conversely, there was nothing the insured could have done to avoid the collision, noting the claimant walked into the side of his vehicle, leaving the insured no opportunity to avoid the collision.
The insurer submits that in those circumstances, there was insufficient time and distance available for the insured to observe and react to the claimant’s movement on to the roadway and a collision was unavoidable. Accordingly, the accident was a no-fault accident.
It submits that in Davis v Swift [2014] NSWCA 458; 69 MVR 375, the Court noted that with respect to apportionment of conduct in no fault claims, it was necessary to look at the extent to which the appellant’s behaviour involved a significant departure from the standard of care expected. In that case, it was noted that in the range of possible departures from the standard of care, the appellant’s conduct was not an example of a worst possible case in that it was not inevitable that the respondent’s vehicle would run over her foot. The Court took into consideration that the appellant did not consciously place herself in a position of danger or attempt to cross the road when her judgment was affected by alcohol or drugs.
It is the insurer’s submission that whilst in that case the court did not find 100% contributory negligence, it is inferred that in circumstances where the conduct was an example of the worst possible case, or where the claimant consciously placed herself in a position of danger, a finding of 100% would be available.
In the subject case, the insurer submits it was inevitable that the claimant’s actions would lead to a collision in that he stepped into the side of an oncoming vehicle in circumstances where there was insufficient time for the insured driver to react.
The insurer therefore submits that the accident was a no-fault accident, and that the claimant’s contributory negligence would be assessed at not less than 70%.
The insurer submits that a reasonable person in the claimant’s position would have taken the time to stop, look and lean around the corner before entering the roadway or alternatively would have utilised the narrow kerb/sidewalk to check whether it was safe to cross the road. If the claimant had looked to the left before stepping out, he would have observed the insured driver travelling towards him and the accident would have been avoided.

REASONS

I have had regard to the valuable summary of the principles of the law of negligence as they apply to motorists is to be found in the judgment of Meagher JA in Marien v Gardiner; Marien v H J Heinz Company Australia Ltd [2013] NSWCA 396 at [33]-[37]. I do not set those principles out here.
It is well established that the exercise of reasonable care requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. That in turn requires simultaneous attention to, and consideration of, several different features of what is already or may later come to be, ahead of the vehicle’s path: Manley v Alexander [2005] HCA 79; 80 ALJR 413 at [11].
The driver is not required to travel at a speed which is within the “limits of visibility and control” to be able to react to whatever ventures into the vehicle’s path. Derrick v Cheung was such a case. The driver was not negligent even though he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.
What distinguishes the facts of Derrick v Cheung in this case is that a pedestrian tunnel opens out onto a very narrow congested laneway devoid of a footpath. A pedestrian emerging from that pedestrian tunnel in a residential area did not go beyond things that a reasonably careful motorist ought reasonably to have anticipated. Accordingly, caution needed to be exercised in by a motorist driving such a vicinity. The speed limit in school zones and around road works on major roads is 40kmph. That does not mean that this is the speed to which drivers must drive, but it is the limit. Drivers must drive to conditions. This vicinity on Bridge Lane had the same features that would inform the speed limit in a school zone and road works, namely pedestrian unpredictability. It also had added features: no footpath to accommodate persons emerging from the pedestrian bridge; and congestion occasioned by parked cars which forces vehicles to drive close to the mouth of the pedestrian tunnel.
In these premises, I am not satisfied that the insured driver can be described as without fault. The possibility of a pedestrian emerging from the pedestrian tunnel out onto the roadway was not remote; it was reasonably foreseeable. Therefore, necessary precautions did need to be taken such as maintaining a proper lookout, slowing the vehicle down and proceeding with caution in the circumstances, 30km on a narrow congested, inner-city laneway is, in my opinion, inappropriately fast.

I am also satisfied that the preponderance of evidence supports that the claimant failed to take reasonable precautions for his own safety. There was sufficient space for him to have stopped and looked for oncoming traffic in both direction upon emerging from the tunnel and proceeding down the hill to Pyrmont Bridge Road. The fact that he was looking right at the time of the collision suggests that he was already on the roadway when he commenced to look in both directions (that is, the customary, right-left-right). This fact suggest that the claimant did fail to execute the crossing of the laneway in a manner required to take sufficient care for his own safety.
In answering the question posed by Schedule 2(3) (e) of the Act, Schedule 2(3) (e) (g) of the Act must be considered. To determine whether a claimant was mostly at fault involves a comparison of both the claimant’s and the insured driver’s culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance or causal potency of the act of the parties in causing the damage: see e.g. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494.
Section 3.38 of the Act does not purport to impinge on the obligation to have regard to the injured person's share in the responsibility for the damage; it should not be read as an exception to s 9(1) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to which it is made subject by s 3.38 of the Act.
Unlike the situation under the Motor Accidents Compensation Act 1999 (NSW), s 138, which was the subject of discussion in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (see, in particular, [84]-[85]) and the various cases to which the insurer refers in its submissions, the Act was enacted later than the Civil Liability Act 2002 (NSW), such that
s 5R of the Civil Liability Act should be taken as subject to s 3.38(3) of the Act. For this reason, caution is necessary with respect to the authorities which pre-date the Act. In particular, the change of emphasis which was said to have arisen from the enactment of the Civil Liability Act and which raised doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage has arguably undergone a subtle change. The prevailing requirement emerging from s 3.38(3)(c) of the Act is that I apportion liability according to what I consider and reason to be just and equitable in the circumstances of the case. Therefore, under this new statutory regime, unlike its predecessor, the conduct of the driver is open to be judged against a higher standard than that of the pedestrian: cf. T and X Company Pty Ltd v Chivas [2014] NSWCA 235; 67 MVR 297 at [54].
Under the newly enacted statutory regime, the claimant’s and the insured driver’s shares in the responsibility for the injury occasioned are a mandatory factor in considering a “just and equitable” apportionment. The legislative decision to maintain the requirement of just and equitable determination renders the effect of the assessment under s 5R of the Civil Liability Act subject to the power to consider other factors relevant to the “just and equitable” test.
Therefore, in my view, it is open to me to consider the obligations the imputed knowledge of the significant damage that a motor vehicle may do to a pedestrian in determining contributory negligence under s 3.38 of the Act, despite the claimant’s departure from the standard of care for his own safety. And I observe, that even if I am wrong in my construction of the effect of s 3.38 in the legislative scheme, it is nonetheless open to me to take this into account: see T and X Company Pty Ltd v Chivas at [11] and [16].
At common law and under the Civil Liability Act, contributory negligence is a defence. Under the Act, in this statutory context, it is, by virtue of the operation of s 3.38 of the Act, a proviso or qualification on ongoing payment of statutory benefits, to be objectively determined: see Vines v Djordjevitch (1955) 91 CLR 512 at 519 - 520; Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257 and Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909. As it is the insurer which wishes to rely upon the existence of the condition of exclusion under s 3.28(1)(a) of the Act, is incumbent upon it, the legal burden of persuading or proving that proviso is satisfied. As I have set out above, I am satisfied it has been discharged. What remains to be assessed is the causal potency of each party’s departure from the standard of reasonable care expected of each.
Upon examining the causal potency of each act and omission of the parties I am satisfied that the insurer’s assessment is correct, and the claimant was mostly at fault.
Both parties knew the area well. Both parties understood that the pedestrian exit onto the roadway was such that it required greater caution be exercised while traversing its intersection with the roadway. While I am of the view that the insured driver should have driven slower and exercised greater caution, than he did, particularly when approaching the exit to the tunnel, the fact that he was able to stop his vehicle almost immediately upon seeing the claimant suggests that had he been driving more slowly the accident may have been avoided. But had the claimant stopped and looked properly for oncoming vehicles, the accident would not have occurred at all. The evidence suggests that the claimant effectively walked out onto a laneway without maintaining any lookout, lest a proper lookout. He must therefore bear the greater proportion of liability for the accident. I am satisfied that that proportion is greater than 61%. I would place it at 65% - 75%. I consider, therefore, 70% to be within the appropriate range.
Accordingly, I am satisfied that the claimant was mostly at fault for the accident.

COSTS

The claimant’s legal representatives seek the maximum regulated costs for this Application. The claimant’s legal representatives submit that they required to undertake several steps to prepare this application including but not limited to a thorough review of the evidence available, undertake a Police GIPA application as well as obtaining a statement. Such work was reasonable and necessary in the circumstances and the costs claimed and incurred are recoverable by legal practitioners pursuant to regulation 22 of the Motor Accident Injuries Regulations 2017.
I am satisfied that the preparation for miscellaneous claims matters such as the instant require significant work and preparation by a claimant’s legal representative. The assessment of liability is an important feature of the scheme, and the Commission is greatly assisted by a well-prepared, well-supported, and well-reasoned application.
By reason of the fact that I have necessarily been required to consider two miscellaneous claims assessment matters, being Schedule 2, cl 3(e) and (g), the claimant is entitled to be awarded the maximum legal costs for each. Accordingly, I award $3,500 for costs inclusive of GST.
In conducting my review, I have considered the following legislation:
(a)    the Act;
(b) Motor Accident Injuries Regulation 2017;
(c)    Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b);
(d)    Motor Accidents Compensation Act 1999 (NSW), s 138, and
(e)    Civil Liability Act 2002 (NSW), ss 5B, 5R.

[2023] NSWPIC 538

16 October 2023