Smythe v Cic Allianz Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Smythe v CIC Allianz Insurance Limited [2022] NSWPIC 758
CLAIMANT:	Joanna Smythe
INSURER:	CIC-Allianz
MEMBER:	Bridie Nolan
DATE OF DECISION:	13 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); combined miscellaneous claims assessment; claimant was a pedestrian injured by collision with insured taxi; failure to use a pedestrian crossing due to unawareness of its existence; claimant perceived there to be no immediate oncoming traffic while she moved between stationary vehicles in preparation to cross; claimant could see to her left and right according to the expert opinion; no evidence of alcohol or drugs contributing to the accident; whether the motor accident was caused by the fault of another person; general assessment of damages for non-economic loss; contributory negligence; dispute as to costs; whether the claimant kept a proper lookout; whether the provisions of section 5.1 are engaged; whether the accident is therefore a no-fault motor accident because it was not caused by the fault of the owner or driver of any motor vehicle involved in the accident and was not caused by the fault of any other person; Held – insured driver not “at fault”; the apportionment exercise required by sections 3.11 and 3.28 of the MAI Act cannot apply unless there is another tortfeasor; the claimant, who cannot be “at fault”, cannot therefore be “wholly or mostly at fault”; no reduction in statutory benefits therefore permitted; assessment of non-economic loss reduced in accordance with the provisions of section 5.5; insurer’s solicitor’s costs permitted under section 8.3(4).
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Damages claim In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the MAI Act), the Personal Commission’s (the Commission) determination of the Miscellaneous Claims Assessment Dispute and the Damages Claim is as follows: 1. For the purposes of s 3.11 of the MAI Act, the motor accident was not caused by the fault of another person. 2. The effective date of the determination in paragraph 1 above takes effect on 1 July 2019. 3. The amount of the claimant’s costs in the miscellaneous claims assessment matter is $1,876 inclusive of GST. 4. The amount of damages I have assessed as owing to the claimant is $300,000, which I have reduced in accordance with the provisions of s 5.5 of the MAI Act by 15%, to award, $255,000. 5. The amount of the claimant’s costs in the common law damages claim matter is $42,186.17 inclusive of GST calculated in accordance with the attached calculation sheet. 6. I permit the Australian legal practitioner retained by the insurer to be paid her legal costs incurred in representing the insurer in connection to the claim for statutory benefits pursuant to s 8.3 (4) of the Act at the rate of $311 per hour ex GST.

Reasons for Decision

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

Background

The claimant, Joanna Smythe, (the claimant) makes two applications:
(a) the determination of a miscellaneous claims assessment pursuant to a dispute concerning the matter which arises under Schedule 2(3)(d) of the Motor Accidents Injuries Act 2017 (the MAI Act) as to whether for the purposes of s 3.11 the motor accident concerned was caused by the fault of another person. The insurer maintains its position that the claimant was wholly at fault for the accident as per its Certificate of Determination dated 12 May 2020, and
(b) an award of damages pursuant to an Application for Personal Injury Damages pursuant to an application for such, made in the proceedings. The claimant is entitled to non-economic loss, by virtue of the injuries sustained in the accident exceeding the statutory threshold. She makes no other claim for common law damages, as she was, at the time of the accident and remains, unemployed. In the claimant’s submissions, the common law claim is brought pursuant to Part 5 invoking the no-fault accident provisions.
It is convenient to deal with the quantum of damages first and the more detailed issue of liability as it is to be determined in the context of both applications, second.

DAMAGES

Non-economic loss

In her schedule of damages prepared in respect of the proceedings, the claimant relies upon two reports: that of Dr Evan Dryson, who assessed the claimant as suffering 25% whole person impairment (WPI), and Professor Ian Cameron, who assessed the claimant as suffering 26% WPI.
Dr Dryson, in a report dated 4 June 2020, opines that the claimant was dependent on her son for care and assistance. Due to her injuries, the claimant uses a walker or walking stick. She no longer cooks or gardens and has since required home modifications including a long handled back brush in the shower to accommodate her ongoing disabilities.
In a report dated 8 May 2021, Professor Ian Cameron noted that the claimant’s loss of amenities of life include reduced mobility and limited function in her right upper extremity. The claimant cannot climb stairs readily, she cannot use public transportation, she cannot sit in a chair for more than one hour, and she has difficulty putting on her socks and shoes.
The claimant claims that as a result of the subject accident she sustained injuries to her thoracic and lumbar spine, right arm and shoulder, right hip and leg, left hip and leg. She was hospitalised at St Vincent’s Hospital for an extended period of time. She says that her injuries severely impacted her ability to engage in normal activities in life and significantly reduced her overall quality of life.
Prior to the accident she was outgoing and enjoyed being outdoors. She was the carer for her partner, Lee. She was highly independent around the house and had no difficulty attending to household chores including cleaning, cooking, and mopping.
During her downtime she enjoyed gardening and maintaining the aesthetic of her backyard. She would garden every day and would constantly receive compliments from her family and friends about her garden when they came to visit.
She enjoyed going for long walks by herself and would usually walk around the neighbourhood for about 5 km, three times per week. She would walk to her local Woolworths to do grocery shopping and would walk back with no difficulty. Her social life was normal. She would regularly see friends and her two sisters who lived locally. She would luncheon at Engadine Bowling Club or the local McDonald’s at least once per fortnight. She would occasionally travel to St Peter’s to shop at the outlets. Her sister and she would take long drives to the Blue Mountains or Kiama. Sometimes her friends and she would go shopping at Miranda Westfield.
Prior to the accident the claimant used public transport as she did not hold a driver’s licence. She had no difficulty in climbing stairs, standing, and sitting for extended periods of time. She would take the occasional motorbike ride with her partner, Lee, and his friends.
Since the accident her life has changed completely. She has become extremely reliant on her son, who temporarily relocated to New South Wales from Victoria for approximately eight months to provide her with around the clock care.
She has undergone a total hip replacement to her right hip and continues to experience flare-ups to her right shoulder and lower back.
The surgeon advised that she would need a further hip replacement in the future as they only last for 15 years.
She says her right arm and right leg are significantly shorter than her left arm and left leg.
She is currently being treated by Dr Jimmy Nguyen in Engadine who has maintained a conservative treatment approach. She uses pain medication such as Tramadol, Prozac and Mersyndol Forte which only provide her with temporary relief.
Due to her reduced mobility and limited functioning, she has gained almost 30 kg. She currently weighs 88 kg, while she was 60 kg at the time of the accident.
She is extremely miserable and does not want to leave her house. She has become socially isolated and spends most of her time at home watching television. Every hour or so she repositions herself, as sitting down for extended periods of time aggravates her pain.
The injuries have strained her relationship with friends and family, particularly her sisters, whom she now sees every couple of months and does not maintain contact, even over the telephone.
She relies on her neighbour who attends to errands and groceries a few times per week.
Since the motor vehicle accident, she has been suffering from incontinence issues and wearing nappies every day. She explained to me her great distress brought about by her pelvic injuries particularly of a gynaecological and urological nature.
She struggles to sleep at night and has discomfort and severe pain which she described at the assessment conference hearing in some detail.
She has also acquired home modifications to better accommodate her injuries, including a toilet seat riser and a shower rail. The glass shower door has also been replaced with curtains to create additional space.
She struggles to maintain the cleanliness and presentation of her home and therefore refrains from having people over. She completely neglects her garden. She has also experienced difficulty hanging her washing and having to tiptoe to reach the clothesline. She avoids public transport as she is too scared and does not like being around people. She is right-handed. Since the accident, her right hand is weak and she has difficulty attending to basic activities of daily living, including holding a cup. She used to hold her hair up in a ponytail but can no longer tie it up due to the severe pain in her right shoulder and shorter length of her right arm.
She wears slip on shoes as she struggles to tie her laces. She cannot cut her toenails without experiencing significant pain.
She has become extremely emotional since the motor vehicle accident and finds herself crying every couple of days reflecting on the impact that the accident has had on her life. She experiences frequent flashbacks of the motor vehicle accident.

Medical evidence

In a report dated 4 June 2020, Dr Dryson reports on the claimant’s symptoms. She has continual pain in the region of her right shoulder with reduced range of movement. She has pain radiating down her arm as far as her forearm. She reports occasional pins and needles in her right hand, involving the whole of her hand. She has decreased strength in her right hand and drops objects.
She has decreased range of movement in her right shoulder and pain is present all the time.
She reports pain in her right hip, intermittently. She has an impaired ability to walk. She uses a walker or walking stick and only needs to do this since the motor vehicle accident. Inside the house, she would use furniture to support herself. Even so, she can only walk for 10 minutes. She can sit for about one hour. When standing she must hold onto something and can only manage a few minutes standing in one spot. Stairs are difficult to negotiate. She takes the stairs one at a time and pulls herself up by the handrail. There are 22 steps in her home to her bedroom which means she will either stay downstairs for the day or alternatively stay upstairs all day to avoid using the stairs. She avoids slopes as she cannot negotiate them using her walker easily. She continues to have a painful restricted right hip.
She has pain in her left knee and her left leg due to overuse by reason of her right hip fracture.
He describes the claimant’s urinary incontinence.
There is a lateral scar over the upper right thigh as a consequence of surgery to fixate her acetabular fracture. She has a low abdominal scar. There are scars on the medial and lateral aspects of her right knee where traction was inserted.
He notes the claimant underwent physiotherapy for some 26 weeks which had now ceased. She said that the therapy did not assist.
The doctor opines that in relation to the claimant’s right shoulder it is highly likely that she has developed an adhesive capsulitis consequent to the immobility secondary to wearing a sling, for the treatment of her fractured neck of her humerus. The right hip fracture had clearly left a permanent impairment in respect of hip function. He opined that the claimant did require ongoing physiotherapy. He opined that the shoulder may have reached maximum function. It is unlikely that she will have any improvement in respect of the right hip and apart from pain relief there is no treatment that could be offered. He noted that in another 10 years she will require a total hip joint replacement.
Professor Ian Cameron, in his report dated 8 May 2021, noted the severe pelvic fracture including an acetabular fracture which had not resolved but had been treated with a right total hip replacement. He also noted the comminuted fracture of the right proximal humerus which had healed but with restricted movement. He noted that the claimant had significant ongoing disabilities related particularly to limited function in her right upper extremity. He also noted her restrictions with respect to mobility.
In a report dated 22 June 2021, Dr Peter Slezak reported following inspection of clinical notes, that the claimant had several background health issues pertinent to her anticipated life expectancy, which included a hepatitis C infection, alcohol abuse disorder, cigarette smoking and an increased falls risk. After setting out a brief precis of these issues, the doctor went onto set out the claimant’s anticipated life expectancy of 16 to 18 years given her then current age. This was to be compared with the further 31 years of medium life expectancy for a 56-year-old female.
The doctor identified his capacity as Chief Medical Health Officer for Hannover Life Reinsurance of Australasia Limited and the fact that he had direct access to current life tables. He said that taking into account the claimant’s age, sex and comorbidities, the respective morbid conditions would attract an increased risk associated with extra mortality or anticipated reduced life expectancy as calculated by senior actuaries and medical consultants such as himself. The proposed extra mortality was then entered into a computer-generated calculator, once again generated by senior actuaries, which in turn calculated the reduction in life expectancy also factoring in age, sex, and cigarette smoking. While this evidence was unchallenged, I consider it unreliable.
I have no way of considering the basis for the calculations said to have been performed by an algorithm in a computer generated by unnamed senior actuaries. In my view these factors diminish the value that I can attribute to the opinion indeed, I am not persuaded that it be afforded any weight. I therefore will assume that the claimant has at least the 30 years medium life expectancy as represented in Dr Slezak’s note to the insurer.

Parties’ submissions on non-economic loss

The claimant submits that as a result of the accident, she was in hospital for three months, during which time she had two operations on her hip and leg, and one operation on her arm. The claimant endured extreme discomfort and pain from which she still has not recovered. The claimant cannot engage in her normal lifestyle and needs, personal and domestic care and assistance, and is required to take medication.
The claimant submits that an amount of $350,000 is appropriate.
The insurer submits that the claimant was treated at St Vincent’s Hospital following the accident. Those records reflect that she underwent several investigations including CT scans and X-rays, resulting in a diagnosis of fracture of the pelvis and a fracture of the humerus.
The claimant’s Application for Personal Injury Benefits records injuries limited to the fracture of the right side of the pelvis and the fracture of the humerus. This is consistent with a certification annexed to the claim form completed by the doctor at St Vincent’s Hospital, which noted diagnosis of a comminuted fracture of the right acetabulum and a fracture of the surgical neck of the humerus.
The remainder of the injuries the claimant now asserts as arising from her accident in her statement, are not reflected in the contemporaneous medical evidence, as arising in the subject accident.
The medical evidence indicates longstanding complaints of physical and psychological injury and disability. The claimant’s pre-accident records reflect numerous attendances from multiple comorbidities, including her being an intravenous drug user on the Methadone program, cirrhosis, hepatitis C, and pubic ramus fracture. The insurer relies upon the fact that the claimant has been regularly prescribed Endone, Panadeine Forte, Panadol Osteo, Valium and Mersyndol. She has sought treatment for both shoulders due to severe pain in 2015. In 2018 there are records of the claimant having fallen and complaining of right hip problems. A subsequent injury in February 2018 noted osteoarthritis of the hips. In April 2018, there are notes reflecting that the claimant suffered a pubic ramus after a fall and there is reference to a painful back and hips and tendonitis in the shoulder.
The insurer submits that it does not seek to underplay the extent of the claimant’s injuries and ongoing disabilities, and it submits that the assessment of the claimant’s entitlement to non-economic loss must be done in light of the extensive injury, disability, and impairment pre-accident.
Furthermore, the insurer submits that it should be assessed based on the objective evidence noting the claimant’s concession that her recollection may not be accurate, and if the records reflect administration of medication or complaint of injury, they are likely to be correct.
The insurer notes that the evidence establishes, as of 9 February 2018, the claimant was on a walking stick and awaiting a total hip replacement. Whilst the accident ultimately led to the need for a hip replacement, the insurer submits that the claimant had longstanding injury and disability of her pre-existing injuries.
In all the circumstances and having regard to the objective medical evidence which does not attribute several of the claimant’s alleged disabilities to the subject accident, together with the extent that the claimant’s comorbidities and reduced life expectancy as referred to by Dr Slezak, the insurer submits an award of $225,000 is appropriate.

Findings on non-economic loss

I am not satisfied that the matters that the insurer raises with respect to pre-existing comorbidities are sufficiently proved for me to discount the clear and unchallenged findings of both Dr Dryson and Professor Cameron.
Findings of WPI of 25% and 26% are substantial.
Having considered the pain and suffering that the claimant experienced by reason of her accident, the surgeries that she has undertaken and the loss of amenity of life, which I have set out above in some detail, I consider that the opposing assessments are for non-economic loss to be within the range of appropriate assessments, albeit the insurer sits at the lower end and the claimant sits at a moderate to high point in the range.
The claimant’s unchallenged evidence was that she was at a stage in her life where she was enjoying a fulfilled existence. Her primary passion was her garden and socialising with her sisters and friends. She is now largely immobile, spends her days on her own, is unable to attend to basic grooming, is no longer able to tend to her garden or maintain her home, and she relies on the assistance of her son and her neighbour for basic errands. She is no longer able to enjoy motorcycle rides with her partner or long walks around the neighbourhood.
Although these pursuits may appear simple, they are meaningful and amount to the very essence of the claimant’s life, and her ability to enjoy them has been completely removed by her injuries.

The claimant is relatively young, she is in her mid-50’s. These pursuits she could have well enjoyed into her 80’s. This leaves many years to sit alone either on the first or second floor of her home.
Therefore, I consider that the moderate and appropriate award for economic loss is $300,000 for this head of damage.
I will now consider the more complex issue of liability.

LIABILITY

The accident

The subject accident occurred on 1 July 2019 at approximately 11:30 am on Darlinghurst Road, near the intersection with William Street in Potts Point in the state of New South Wales.
The insured driver was driving a taxi, which was proceeding north on Darlinghurst Road in lane two, having just crossed the intersection with William Street, when the claimant walked from the footpath, between two stationary vehicles in lane one before stepping out into the path of the insured vehicle, resulting in the collision. Both the claimant and insured relied upon reports of crash investigation experts and both gave evidence of the circumstances of the accident in the proceeding before me by MS Teams. In preparing these reasons I have had regard to the recording of that evidence.

The Miscellaneous Claims Assessment Dispute

In a decision on internal review, by Certificate of Determination dated 12 May 2020, the insurer found that the claimant was wholly at fault for the motor vehicle accident. Their decision was predicated upon the question posed by Schedule 2, cl 3(d) of the MAI Act, as to whether for the purposes of s 3.11 the motor accident concerned was caused by the fault of another person.
The decision maker considered the police and ambulance reports and the factual statements collected by the insurer’s investigator.
She considered that the danger created by colliding with the front passenger side of the taxi was the sole cause of the accident that ensued. The insurer did not consider that the insured driver could reasonably have avoided the collision occurring, noting that the claimant emerged very suddenly at a running pace into the side of the vehicle. The insurer had regard to the nature of the damage to the vehicle and considered that the claimant failed to heed the presence of the vehicle on the roadway then ran into the side of it. The insurer relied on several eyewitness accounts reported in the police notes, which stated the claimant “came out of nowhere”, “suddenly ran across the road” and “ran across the road … into a taxi”. The insurer noted that the NSW police attributed fault to the claimant for the motor vehicle accident.
The police had noted that the claimant had not crossed at the crossing. The insurer noted that in the area where the accident occurred, there was available to the claimant, a pedestrian crossing. The insurer opines that the claimant had chosen not to utilise the pedestrian traffic signal and was therefore of the view that the claimant had acted negligently. It referred to the decision of T and X Company Pty Ltd v Chivas [2014] NSWCA 235 where a finding of 75% contributory negligence was made in circumstances where an individual ran across a pedestrian crossing on Market Street and was hit by a taxi which was found to be travelling at an excessive speed. The insurer considered that the claimant’s culpability was higher than as was found in that case, as the claimant was not crossing on a pedestrian crossing, and the insured driver was not travelling at an excessive speed. It was not accepted that the insured driver had breached his duty of care at the time of the accident.
The insurer relied on the decision of Heydon JA in Knight v Maclean [2002] NSWCA 314, where the pedestrian was found wholly at fault. There, Heydon JA said that it was not the law that a driver complying with the minimum requirements of the law of negligence must drive in a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which would avoid risk of a collision at all stages of any journey. There, Heydon JA referred to the absence of anything in particular to put the defendant on notice of the need to guard against pedestrians suddenly crossing the road and the nature of speed at which traffic was travelling on Parramatta Road called for close attention to the behaviour of vehicles in front. Having regard to these comments, the insurer considered that the manner in which the insured driver was driving was appropriate and reasonable in the circumstances and the insured was a prudent driver. There was no evidence that the insured driver had failed to abide by a road rule. However, the insurer accepted that the insured driver had attempted to avoid the accident by braking as was set out in his statement.
The insurer’s basis for disputing liability was that the claimant was wholly at fault for the motor accident. The corresponding miscellaneous claims matter for this dispute poses for determination this question: whether for the purposes of s 3.11 the motor accident concerned was caused by the fault of another person.

SUBMISSIONS

Insurer’s submissions

In the insurer’s submissions, the evidence given by the claimant and the insured driver two years after the accident, should be viewed in the context of the objective evidence which comprises the NSW police investigations and the CCTV footage of the incident. In this regard, it submits, a witness’s memory and recollection of the accident is fallible, whereas the objective evidence, namely the CCTV footage is not.
The objective evidence in contemporaneous statements is the subject of expert reports commissioned by both parties. It is the insurer’s submission that the expert evidence and the conclusions with respect to speed, distances, and time to observe and avoid a collision ought to be preferred over the oral evidence given at the assessment hearing, particularly in circumstances where the evidence differs from the CCTV footage and the expert analysis.
The insurer submits that the evidence before me supports the following findings of fact:
(a)    The accident occurred approximately 50 m north of the intersection at Kings Cross Road, which has a fully controlled pedestrian crossing oriented in an east-west direction.
(b)    The claimant was crossing the road east to west.
(c)    The claimant stepped off the footpath and walked between two stationary vehicles before stepping into lane two, into the path of the insured vehicle.
(d)    The insured was travelling within the speed zone of the area, which was 50 kmph.
(e)    The insured was travelling in lane two of two northbound lanes of Darlinghurst Road.
(f)    The claimant’s path of movement was obscured by the stationary vehicles in lane one, leaving insufficient time for the insured driver to avoid collision with the claimant.
(g)    The approach of the insured vehicle was capable of being seen if the claimant had looked, before stepping into lane two.
(h)    The insurer submits that the area where the accident occurred is busy and has a speed limit of 50 kmph. The insured’s evidence is that he was travelling at 40 kmph and the claimant ran into his vehicle, with there being insufficient time for him to avoid the collision.
(i)    The insured was questioned by the claimant’s counsel at length, about various matters relevant to his failure to observe the path of the claimant from the footpath to the point of collision. The insurer notes that the issue of the insured’s visibility was addressed by both experts, and to a large extent, there is agreement by the experts that there was a visual impediment of the movement of the claimant until she walked between or emerged from beyond the build-up of stationary traffic in lane one.
(j)    Grant Johnston in his report dated 22 March 2021 at [8.58] states that there was an impediment to identify the claimant as she moved between the vehicles and, consequently the insured had up to three seconds of vision of the claimant.
(k)    Glenn Urquhart in his report dated 28 January 2021, concluded that the claimant would have been obscured from the insured’s view until two seconds prior to the impact. Unlike Mr Johnston, he noted the insured’s obligations to scan for other potential dangers and considered that consistent with the insured’s evidence, that the insured is unlikely to have seen the claimant until she stepped out from in front of the vehicles in lane one.
(l)    Mr Urquhart premised his opinion regarding visibility on the assumption that the claimant was approximately 161 cm tall. The insurer notes that this assumption is an overestimation of the claimant’s height and that the most contemporaneous evidence of her height is contained in the records of
Dr McMurchie which recorded her height at 159 cm.
(m)     Mr Urquhart concludes that at best, the claimant’s head protruded above the stationary vehicles and that this is only if it is found that the stationary vehicle was a smaller model vehicle. The diagram contained on page 23 of Mr Urquhart’s report shows how little visibility there was of the claimant as she emerged between the two vehicles.
(n)    The insurer submits that I would accept Mr Urquhart’s opinion that it was not until the intervisibility opened up that the insured first became aware of the presence of the claimant. This is supported by the insured’s evidence that it was not until immediately before the collision that he first observed the claimant step from the stationary vehicles.
(o)    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 into the insured’s lane and a collision was unavoidable.
(p)    With respect to the suggestion that the insured ought to have anticipated the possibility of a pedestrian crossing the road at the point the claimant did, the insurer submits the presence of a marked and traffic light controlled pedestrian crossing 50 m from the point of impact refutes this assertion and that it was reasonable for a driver travelling the path of the insured to assume a pedestrian would use the clearly visible traffic controlled crossing at the intersection 50 m along the road. I interpolate at this point that to my mind, the contrary position is also available, that in the area of pedestrian crossings, particularly in a busy intersecting road such as the subject intersection, one should expect pedestrians to be crossing consistently, at various points in the road. That is the nature of the foot traffic in the vicinity of Kings Cross.
(q)    The insurer submits that Mr Johnston concedes that the claimant may have been obscured to some extent as a result of crossing between the vehicles, however, he says that the fact that the insured braked at the time that he did, indicates that he saw the claimant when she was between the vehicles and accordingly, she was not obscured.
(r)    The insurer submits first that this statement indicates the insured was keeping a proper lookout and did observe the claimant at the first opportunity in line with Mr Urquhart’s opinion with respect to intervisibility. Mr Urquhart discusses the intervisibility and that the claimant was likely to have been visible as she proceeded between two vehicles. The insurer submits, that all the evidence leads to this conclusion and supports the insurer’s position that immediately prior to the insured becoming aware of the claimant’s presence on the roadway, he applied emergency braking.
(s)    The insurer says the actions of the insured were entirely reasonable in the context of the matters confronted by him, whilst driving on a busy roadway. The fact the insured did not detect the claimant when she first stepped off the kerb does not mean that he was not keeping a proper lookout. He was required to lookout for vehicles approaching and to his right as he proceeded along a busy roadway.
(t)    With respect to the insured’s speed, there is a general agreement between the expert’s that the insured was travelling less than the posted speed limit. In his statement to the police, the insured estimated that he was travelling at 40 kmph. Whilst he gave evidence that he may have been travelling at 50 kmph, the insurer submits the expert evidence ought to be preferred.
(u)    Mr Urquhart described a rat trajectory which is consistent with the vehicle decelerating. So too is the fact that the claimant slid off the bonnet consistent with the insured braking. He also notes that dipping down the front of the insured vehicle is consistent with hard braking. Further, in the absence of any head impact with the windscreen, it is also consistent with the insured travelling at less than 40 kmph.
(v)    Mr Urquhart refers to table 1 in his report and notes that the limited damage to the insured’s vehicle suggests an impact speed of less than 40 kmph. Mr Urquhart concluded that the insured was travelling at a speed of 30 to 35 kmph at impact, concluding that the insured did brake prior to impact.
(w)   The insurer relies upon the conclusions of Mr Urquhart in his supplementary report that unless the insured detected the claimant within the first 0.4 seconds of her motion across the road, the collision was unavoidable. Further, accepting the driver did brake, as conceded by
Mr Johnston, then it is evident that the insured driver did observe the claimant at an early stage as she commenced crossing the roadway.
(x)    As to the what the insured refers to as “the claimant’s negligence”, it submits the CCTV footage establishes that the claimant walked between two stationary vehicles in lane one and continued her path across the roadway before stepping into the path of the insured vehicle which was proceeding in lane two.
(y)    Mr Urquhart notes that the CCTV footage shows the claimant to have taken one pace across the front corner of the insured vehicle – (0.7 m into lane two).
(z)    Both experts agree that the claimant was looking straight ahead as she proceeded across the roadway. Likewise, both experts agree that the claimant was in breach of the Australian Road Rules, crossing the roadway at the point she did.
(aa)    The insurer submits that it is self-evident that the actions of the claimant were “grossly negligent” and were the cause of the collision.
(bb)    In all those circumstances, had the claimant kept a proper lookout, and stopped and looked before stepping from lane one into lane two, the accident could have been avoided; first because the claimant would have seen the approach of the insured’s vehicle and second, the insured driver would have had a greater opportunity to see and react to her presence on the roadway.
(cc)     Although the claimant would not concede that, had she looked, the approach of the insured vehicle would have been visible to her, this fact cannot be disputed. The CCTV footage captures the incident and shows that first, the claimant does not appear to look before stepping into lane two and furthermore if she looked properly, she would have seen the insured’s vehicle approach.
(dd)    Whilst Mr Johnston did not make this concession, he does make the observation that the claimant does not seem to be concerned, or even become concerned of the approaching vehicle as she does not appear to increase her walking speed. Indeed, I would interpolate one reason for this may be that she did not appreciate that the vehicle was approaching, it cannot be suggested that she was reckless, nor do I understand the insurer to so submit. Indeed, the insurer submits that she did not notice the vehicle because she did not look and was not aware of the approaching danger. It is also equally plausible that she did look, but she did not see the insured vehicle approaching.
(ee)    It submits that the fact that the claimant stepped between two vehicles, which were only temporarily stopped due to a build-up of traffic and then entered lane two before checking it was clear, bespeaks “gross negligence”. Had she not done that, it submits, there is no question the accident would not have occurred.
(ff)    It submits that in Davis, 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 applicant’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 applicant’s conduct was not an example of a worse 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 applicant 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.
(gg)    In 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.
(hh)    In the subject case, the insurer submits that it was inevitable that the claimant’s actions would lead to a collision in that she stepped into the path of an oncoming vehicle in circumstances where there was insufficient time for the insured driver to react. Furthermore, whilst there is no evidence that the claimant was affected by alcohol, the evidence does indicate that she had been drinking and was in complete disregard of her own safety.
(ii)    The insurer asserts that the claimant was negligent as follows:
(i)crossing the roadway when it was clearly unsafe to do so due to the presence of vehicles in lanes one and two;
(ii)crossing the roadway other than at a marked or controlled pedestrian crossing, particularly when a traffic controlled pedestrian crossing was within 50 m of the point of which the claimant crossed;
(iii)crossing the roadway between two stationary vehicles in lane one which obscured the approach of the claimant and then entering lane two without looking to ensure that it was safe to proceed;
(iv)failing to keep a proper lookout;
(v)the insurer submits that the evidence is incontrovertible that had the claimant looked, she could see the approach of the insured vehicle which was travelling legally and within the speed limit in lane two, and
(vi)the insurer therefore submits that a finding of contributory negligence of not less than 80% ought be found in the circumstances.

Claimant’s submissions

The claimant submits that by reason of the finding of the insurer, which I have set out above, the accident is a no-fault motor accident as defined in s 5.1 of the MAI Act. The claimant submits that the accident was not caused by her fault, but accepts for the purposes of this argument that the accident was not caused by the insured driver, either.
The claimant submits that the effect of the provisions in Part 5 of the MAI Act read together, is that having averred that the motor accident was a no-fault motor accident, and the presumption not having been rebutted, the insurer’s deemed liable for the accident by reason of s 5.2 of the MAI Act.
The claimant relies upon the decision in Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 (Axiak). This case involved a 14-year-old child who was struck by a motor vehicle when she ran behind a bus. The applicable law at the time was under the blameless accident provisions: ss 7 (a) – (f) of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). These provisions are almost cognate to the no fault accident provision currently found in Part 5 of the MAI Act. The claimant also relies on the decisions of Davis v Swift [2014] NSWCA 458 (Davis) which involved a person crossing a street in Cessnock when she was struck by a motor vehicle. The trial judge found 100% contributory negligence which was reduced to 80% by the Court of Appeal on an evaluative basis, applying Axiak.

She refers also to AAI Limited v Singh [2019] NSWSC 1300; 90 MVR 1 (Singh). This case involved an injury to a driver when his truck was caused to roll over by a heavy load which had been incorrectly positioned on the tray of the truck. The Court considered the statutory benefits of a no-fault driver and determined that there was a distinction between fault and the causation of injuries and fault and the causation of the accident. In that case the cause of the accident was by another person who loaded the claimant’s truck and therefore the Court held that the accident was not a no-fault accident: [24] and [25].
Based on these authorities, the claimant contends that in a no-fault single motor vehicle accident the driver is deemed to have caused the accident by reason of s 5.2 of the MAI Act.
In further submissions she submits that the onus of proving contributory negligence rests wholly upon the insured. The insured must prove contributory negligence in accordance with Part 1A, Division 8 of the Civil Liability Act 2002 (the CL Act) which applies to motor vehicle accidents. She refers in particular to the provisions of s 5R of that Act.
Section 4.17 of the Act provides that the common law as an enacted law as to contributory negligence applies to an award of damages in respect to a motor vehicle accident must be found in cases involving alcohol, drugs, not wearing a seatbelt or a protective helmet. Alcohol must contribute to the accident of which there is no such evidence in this matter.
Contributory negligence is a defence to the quantum of damages and is not a tort. The degree of culpability of a party in determining contributory negligence in a blameless (not at fault) motor accident is to be assessed on the basis of a value judgment to the extent to which an injured person failed to confirm to the standard of care of a reasonable person in the position of their age, knowledge and understanding. Again, she refers to Axiak.
The insured driver’s oral evidence was in complete conflict with the other evidence causing real doubt as to what he told the police, which in part formed the basis of the expert liability opinion. The driver was more interested in catching the next set of green lights down from Darlinghurst Road without any due concern for any pedestrian attempting to cross the road.
She submits that the driver was certainly an “unfavourable witness” in his own case. She relies upon s 38 of the Evidence Act1995 to submit that there was a requirement that the witness be cross-examined about his evidence which was unfavourable about his prior inconsistent statement to police. This did not occur and as the evidence stands in direct opposition to the rest of the case with the insured attempting to prove his involvement in the accident based on circumstantial evidence and other statements and CCTV footage resulting in a very unsatisfactory position. Accordingly, the claimant submits that the driver’s evidence is of no assistance at all in determining any contributory negligence on behalf of the claimant.
The claimant’s evidence is, that before she attempted to cross the road, she looked to her left and to her right and saw no vehicle approaching then moved forward, when she was struck by the insured’s vehicle at about 4.5 m from the kerb and into the second lane. She stated that she was unaware that there was a pedestrian crossing in a southerly direction up Darlinghurst Road. The claimant’s actions in crossing the road are to be assessed objectively as set out above. It is submitted the claimant’s actions were reasonable and she looked in both directions and saw no vehicle before she proceeded to cross the road. She did not use the pedestrian crossing because she was unaware of it, nor should she have been aware of it in the circumstances of crossing a roadway with no immediate oncoming traffic.
She submits that the insurer has failed to prove contributory negligence. She submits that she kept a proper lookout before she crossed the road. As she moved between stationery vehicles, the evidence is that she could still see to her left and right according to expert opinion. There is no evidence of alcohol or drugs contributing to the accident.
The CCTV footage is of very poor quality taken from an acute angle and certainly does not clearly show movement of the claimant’s head to discern in which direction she was looking. The insured vehicle had been driven through controlled traffic lights to the south of the point of impact from an elevated position in the roadway to the speed of approximately 40 kmph, which reasonably surprised the claimant at the time. It is submitted that the insured driver’s speed of about 40 kmph was excessive in the short distance between two sets of controlled traffic lights, in particular, when the driver was only concerned with catching the next set of green traffic lights. It is submitted that the accident was caused by the driver in failing to operate his motor vehicle in order to give way to a pedestrian who could have easily been seen on the footpath when crossing the road, and in fact reached the second lane from the kerbside, a distance of approximately 4.5 m.
At the commencement of these proceedings, and before any oral argument, the claimant indicated a concession of 50% contributory negligence in an effort to settle the dispute. However, by her submissions, she withdraws that concession upon the basis that the insured has failed to discharge the onus of proving any contributory negligence on her part. It is submitted that if there is to be a finding of contributory negligence, that such a finding should range between 10% to 20% on the basis that the claimant ought to have crossed at the pedestrian crossing located up on the roadway.

Documents considered

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

REASONS

This matter has been referred to me under ss 7.32 and 7.42 of the MAI Act.
It involves a claim for damages for non-economic loss and a dispute about a miscellaneous claims assessment matter the subject of a decision of an insurer made pursuant to s 3.11 of the MAI Act on the basis that the insurer determined that the claimant was wholly at fault for the accident. Section 7.42 (2) of the MAI Act provides that Subdivision 2 of Part 7 applies to the assessment of a dispute in the same way as it applies to the assessment of a claim for damages, subject to subsection (3) and such other modifications as may be prescribed by the regulations.
Subdivision 2 of the MAI Act houses s 7.36, which provides the machinery of the assessment of claims and by dint of s 7.42, disputes. Subsections (1) - (3) provides, relevantly:
“(1)    The Commission is, in respect of a claim referred to the Commission for assessment, to make an assessment of—
(a)the issue of liability for the claim (unless the insurer has admitted liability), and
(b)the amount of damages for that liability (being the amount of damages that a court would be likely to award).
(2)    Such an assessment is to be made having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate.
(3)    The assessment is to specify an amount of damages.”
The miscellaneous claims assessment matter arising on the internal review decision made by the insurer pursuant to s 3.11 of the MAI Act finds no textual equivalent in the matters prescribed by Schedule 2, cl 3 of the MAI Act. Subclause (d) refers to whether for the purposes of s 3.11 the motor vehicle accident concerned was caused by the fault of another person. I observe that the expression “fault of another person” to some extent echoes the definition of "no-fault motor accident” as provided for in s 5.1 of the Act. There, a “no-fault motor accident” is defined as “a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person”. [my emphasis]
In Axiak, Tobias AJA reasoned that the evident purpose of the addition of the words “and not caused by the fault of any other person” is to render the relevant blameless accident provisions inapplicable to a situation where, although the motor accident is not caused by the “fault” (as defined) of the driver of the relevant motor vehicle, the accident is caused by the “fault” of a third party. In the context of s 3.11 of the MAI Act it focuses on the injured person's disentitlement to weekly payments of statutory benefits for any period of loss of earnings or earning capacity if the motor accident was caused wholly or mostly by the fault of the person, viz. the injured person. Properly construed, the miscellaneous claims assessment question negatives this disentitlement in circumstances where the motor accident is caused by the “fault” of any person other than the injured person. This reasoning is consistent with a consideration of a similar question in Axiak at [66].
In assessing this dispute, the insurer approached its task by considering that the claimant had failed to exercise reasonable care incumbent upon all road users and considered that if the person caused an accident because of their negligence then they were at fault. It concluded that the claimant, being in that category, was therefore, I interpolate, wholly at fault.
In my view, the seductive simplicity of this reasoning betrays a textual delinquency in
s 3.11 of the MAI Act, which renders it an imperfect determinant of disentitlement for claims for statutory benefits by drivers in single vehicle accidents such as the instant. The issue was only partially touched on by Singh, however, not resolved. It centres on the proper construction of the expression at fault, as it appears in s 3.11 and s 3.28 of the MAI Act, and the implication it has for its assessment in accidents of this kind.
To explain.
The relevant inquiry mandated by s 3.11 of the MAI Act is an appropriation of “fault” for the accident. Section 3.11 of the MAI Act provides:
“(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%. [my emphasis]”
Section 3.38(1) and (3) of the referred to in s 3.11(2) of the MAI Act, relevantly, provides:
“(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 26 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—
(a)if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or
(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.”
In the MAI Act, “motor accident” does not have its ordinary meaning. Section 1.4 of the MAI Act defines a motor accident as:
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
I have discussed this definition in Sukkar v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 566 at [32] – [41]. The effect of the provision, in this instance, operates when read together with s 3.11 of the MAI Act to pose the question as to whether the claimant’s “fault” caused the incident involving the collision of the vehicle, which caused her injuries. There is no question that the collision caused the claimants’ injuries, in this case.
While not dealing directly with the meaning to be ascribed to the expression “fault” in
s 3.11 of the MAI Act, in Singh, the Court at [24] identified the legislative intention of
s 3.11 of the MAI Act as the cut-off of statutory benefits at 26 weeks should turn upon the claimant’s fault in causing the motor accident. It was not contested, however, in that case that the cause of the accident involved no fault on the part of the injured person (see eg. Singh at [1]–[3]), so the inquiry went no further than to negate the operation of purported deeming provision in s 5.2 of the MAI Act, to make the injured person, the driver of the insured vehicle, relevantly, “at fault”, insofar as that phrase is a determinant of entitlement to statutory benefits in s 3.11 of the MAI Act.
The meaning to be ascribed to the expression “fault”, and “at fault”, in the MAI Act, is not entirely pellucid.
Although the text of the legislation is both the starting and ending point, the legal meaning of the text of this statute, must be construed from the outset having regard to both context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 368 [14]; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at 149 [20], 157 [41], 162 [64]. While assistance may be gleaned from decisions made in respect of almost cognate provisions in the MAC Act, it cannot subvert the correct approach to the task of construction, which must begin with a consideration of the text, having regard to context and purpose: see eg, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ); Talacko v Bennett(2017) 260 CLR 124, 145 [65] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)); Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 473 [10] (French CJ, Kiefel, Nettle and Gordon JJ); Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355, 381-382 [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ). That is to say, although this question has been considered in the context of the MAC Act that reasoning cannot, without more, simply be transposed into context in MAI Act.
The construction that would promote the purpose or object underlying the Act being interpreted must be preferred to one which would not do so: s 33 of the Interpretation Act 1987 (NSW). Accordingly, I am to have regard to the statutory purpose in determining whether more than one construction is open, not only after ambiguity is identified: Mills v Meeking(1990) 169 CLR 214; [1990] HCA 6 at [19] (Dawson J); Whitfield v Melenewycz(2016) 92 NSWLR 624; [2016] NSWCA 235 (Whitfield) at [20] (Meagher JA, Simpson JA and Sackville AJA agreeing).
The MAI Act establishes a hybrid scheme of compulsory third party insurance, the purpose of which is the provision of benefits and support relating to the death of or injury to persons as a consequence of major accidents. The objects include the provision of early and ongoing financial support for persons injured in motor accidents. One example of how the MAI Act works to achieve this is to provide for statutory benefits for injured road users regardless of fault for 26 weeks (cf. s 3.37 of the MAI Act which disentitles a person charged or convicted of a serious driving offence related to the accident). After 26 weeks, the insurer may determine that the injured person is disentitled to statutory benefits if, they are wholly or mostly at fault, which is defined as contributory negligence of the injured person of greater than 61%. The evident purpose of this aspect of the scheme is to give injured persons regardless, of fault, access to benefits for the injuries they sustained in a motor vehicle accident immediately, with a view to promoting recovery and return to work. This is to be contrasted with the scheme under the MAC Act which did not see at-fault injured parties paid any damages. The purpose does not, of itself, illuminate how “fault” is to be assessed.
Section 1.4 of the MAI Act defines “fault” as it appears in the MAI Act to mean “negligence or any other tort”. There is no carve out of this definition for statutory benefits.
The expression “at fault” connotes tortious liability. Tortious liability is a legal construct which determines civil liability for the injuries caused to a person by another person arising from a breach of a duty fixed by law, the breach of which is redressible in an action for unliquidated damages. That liability does not accrue unless and until damage is sustained and the tort is complete.
In the context of a “motor accident”, it is predicated on a duty of all road users to take reasonable care while using the road. A duty of care is breached when a person is injured because of an act or omission of another person, when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way. That duty exists for the benefit of other road users, not the person to whom the duty attaches. Specifically, a driver cannot have a claim in negligence against him or herself: see Whitfield at [31]. Likewise, by extension, nor can a pedestrian have a claim against himself or herself.
The CL Act applies to the determination of entitlement to statutory benefits. The exclusions of the operation of the CL Act occasioned by s 3B(1)(e1) (Part 4 award of damages) and 3B(2) of the CL Act apply to an assessment of statutory benefits. A determination under Part 3 of the MAI Act is not an award of damages, which is defined in s 1.4 of the MAI Act not to include a claim for statutory benefits. Therefore, for the purposes of the determination of liability for statutory benefits, per se, the MAI Act works to import the statutory codification of the law of tortious liability, and more particularly, the definition of “negligence” in s 5 of the CL Act, viz. the failure to exercise reasonable care and skill in the same way as it does for an assessment of damages. It does not exclude the common law. A determination of “fault”, therefore, for the purposes of a claim for statutory benefits, commences from the starting point of establishing a person’s or persons’ tortious liability for the cause of the injuries caused by the motor accident under the common law and the CL Act.
Section 3.2 of the MAI Act, found in Division 3.1 “Entitlement to Statutory Benefits”, which precedes s 3.11 in the MAI Act, in the context of determining the relevant insurer by which the statutory benefits are payable, refers to the “at-fault motor vehicle”. Section 3.2(4) provides the “at-fault motor vehicle” is ascertained by a determination of (a) the owner or driver of the motor vehicle whose fault in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or (b) if there is more than one such motor vehicle--the owner or driver of the motor vehicle who was most at fault”. In this context, the owner or driver is “at fault” if they were the driver or owner of a vehicle whose fault in the operation of that vehicle caused the injury. In this context, “fault” synthesised with causation of injury has, again, the connotation of tortious liability intended by s 1.4 of the MAI Act.

Section 3.44 of the MAI Act provides that any determination made by the insurer or the Commission regarding any fault of the owner or driver in the use or operation of the motor vehicle, or contributory negligence in relation to the motor accident is not binding in a claim for damage in relation to the same motor accident. In this context “fault”, juxtaposed with contributory negligence, again, would appear to have the connotation of tortious liability as attributed by s 1.4 of the MAI Act. That is not to say that the findings cannot be consistent or indeed the same finding.
Part 5 of the MAI Act has been relevantly amended at the time of writing this decision by the Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW), assented to on 16 June 2022 to omit the Part’s application to statutory benefits following the decision in Singh. However, at the time of the motor accident, and the time of the hearing of this matter, the Part applied to statutory benefits. The common-law principles which emerge from decisions such as Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 at 267 and 281, Carr v Finance Corporation of Australia Limited [No 2] (1982) 150 CLR 139; [1982] HCA 43 at 147, Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; [2012] HCA 19 at [26]-[31] and ADCO Constructions Pty Ltd v Goudappel(2014) 254 CLR 1; [2014] HCA 18 at [26]-[27] and [48]-[52] are reflected in section 30 (1) of the Interpretation Act. In particular, s 30 (1) (c) provides that any “right, privilege… acquired, accrued or incurred” is not intended to be affected. These words are to be given a wide construction: Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 at [96] and Chang v Laidley Shire Council (2007) 234 CLR 1; [2007] HCA 37 at [117]. In my reading of both the MAC Act and the amending Act there is no clear expression of legislative intention that the amendment is to have retroactive effect, such that the rights of accrued to the claimant at the time of the accident by virtue of the operation of Part 5 are capable of informing my reasons in the disposition of this matter. Section 5.1 of the MAI Act defines a “no-fault” motor accident as “an accident in the State not caused by the fault of the owner or driver of the motor vehicle involved in the accident in the use of the operation of the vehicle and not caused by the fault of any other person” (my emphasis). “Fault” in this instance again has the connotation of tortious liability as attributed in s 1.4 of the MAI Act.
Under s 5.2 of the MAI Act, however, the death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of s 1.10 of the MAI Act) is, for the purposes of and in connection with any claim for damages or statutory benefits in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. The circuitous consequence of the deeming in s 5.2 of the MAI Act, suggest that in this context, “fault” has the connotation of deeming liability for the payment of statutory benefits and damages on the compulsory third party insurer of the motor vehicle. This has been held to be contrary to the actual position in relation to the “fault” in s 3.11 of the MAI Act - see eg. Singh at [13], [20] and [24]. But as I have already canvassed, this fault of the driver of the single motor vehicle involved in the accident in Singh was never in issue.
“Fault” per se, is therefore capable of divergent contextual meanings in the MAI Act: tortious liability and liability for injuries. While this divergence would appear to be inconsistent with the requirement when approaching the task of statutory construction to have regard to the whole of the statute, and to approach the reading of the text of a provision with the understanding that a legislature intends to pursue its purposes by coherent means and give effect to harmonious goals, the conflict needs to be resolved to allow them to operate coherently, through a constructional choice which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require a determination of “which is the leading provision and which the subordinate provision, and which must give way to the other”: Project Blue Sky Inc v Australian Broadcasting Authority(1998) 194 CLR 355, at [70], 381-382. See also Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25; (2014) 88 ALJR 735, particularly at [68] per Hayne and Kiefel JJ. It would seem that the meaning of “fault” as ascribed to its use in s 5.2, must be subordinated to its use more generally in the MAI Act. As the Court said in Singh at [24]:
“Fault in the causation of injury and fault in the causation of an accident are two different things – not in the empirical world, or in practical terms, but in the concepts of this statute. It is the express and apparently deliberate intention of ss 3.11(1)(a) and 3.28(1)(a) that the cut-off of statutory benefits at 26 weeks should turn upon the [injured person’s] fault in causing the motor accident.”
The expression “the fault of the person” in ss 3.11 and 3.28 of the MAI Act would appear to refer only to the tortious liability of the injured person, viz. legal causation for the accident attaching to the injured person. This is fortified by the fact that s 3.11 and s 3.28 of the MAI Act contain alternative qualifying adverbs of the phrase “at fault” - “wholly or mostly”. By their colocation, these qualifiers inform each other. They are clearly intended to address the same mischief: contributory negligence, as ss 3.11(2) and 3.28(2) define. Hence, they operate to require comparisons between the relevant importance of the Acts or omissions of at least two parties in causing the accident. Indeed, ss 3.11(2) and 3.28(2) make plain it is the legislative intention of ss 3.11 and 3.28 that there be an assessment of apportionment of liability further to the analysis required by s 3.38(1) and (3) of the Act, (that is, the application of the common law and enacted law as to contributory negligence that applies to an award of damages) as to what is “just and equitable” as between the injured person and another person by having regard to their respective shares in the responsibility for the accident. It incorporates therefore, not only consideration of the relevant provisions of ss 5D, 5E, 5R, 5S and 5T of the CL Act, but also the principles articulated in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 and the operation of s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW). This interpretation receives textual support from Schedule 2, cl 3(d), which defines the dispute as whether for the purposes of s 3.11 of the MAI Act, the motor vehicle accident concerned was caused by the fault of another person. Oddly, s 3.28 of the MAI Act, which finds its equivalent in Schedule 2, cl 3(e), defines the dispute as whether for the purposes of ss 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person. The legislative intention to be gleaned from this inconsistency is not readily apparent.
In my opinion, such a comparative analysis as is expressly required by an assessment of contributory negligence under ss 3.11 and 3.28 of the MAI Act, is utterly inappropriate when, as here, the insurer denies liability for the accident. See eg. Axiak, Davis, and Whitfield, which make a similar point in respect of the application of an apportionment exercise to a blameless accident under the MAC Act. In short, the apportionment exercise required by ss 3.11 and 3.28 of the MAI Act cannot apply unless there is another tortfeasor, otherwise the analysis is completely artificial and contrary to the common law position (not disavowed by the CL Act or other law incorporated by the operation of s 3.38 of the MAI Act) that the claimant can have no tortious liability to himself.
Thus, the claimant, who cannot be “at fault”, cannot therefore be “wholly or mostly at fault”. To find to the contrary requires not only an abnegation of the established legal position that a person does not owe a duty of care to himself or herself and an apportionment exercise in a vacuum. Even if ss 3.11 and 3.28 of the MAI Act, were to create a separate and free-standing test liability unique to its provisions (which is not, in my opinion, supported by the statutory text or context), the claimant nonetheless, cannot be wholly at fault. This would involve the uncoupling of the operation of express alternative qualifiers to incorporate the test of contributory negligence as spelt out in
ss 3.11(2) and 3.28(2).
Further, to cleave, the express alternative qualifiers from each other and apply them to the phrase “at fault” as discrete constituents for the purposes of applying ss 3.11 and 3.28 of the MAI Act to single and multiple putative tortfeasor accidents, would not only do violence to the statutory language, it would undermine the cohesion of the determination posited by the provisions themselves. That is, the provision envisages contributory negligence can be apportioned to 100%: see e.g. s 5S of the CL Act, but it cannot be without an alternative putative tortfeasor: see Axiak at [83] and [86], Davis at [50].
On this analysis the claimant is not “wholly at fault”, because she cannot be “at fault”, and thereby her conduct cannot be subjected to the apportionment analysis the provision expressly requires.
If my analysis and conclusion in respect of this dispute discloses a lacuna in the legislative scheme designed to appropriate liability for injuries in motor accidents, and prejudice to parties results where, by an insurer’s complete denial of liability means only a single putative tortfeasor is involved in causing the accident, then it is for the legislature to remove that lacuna by legislation, not me as an administrative decision maker. In Davis, Meagher JA (Leeming JA agreeing) observed that the approach stated in Axiak may require further consideration in a case where there has been some event, which results in the driver losing control of the vehicle or having to take evasive action that causes an accident or incident. However, in my view, this is not such a case.
The question is therefore whether the provisions of s 5.1 of the MAI Act are engaged. That is, whether the accident is therefore a no-fault motor accident because it was not caused by the fault of the owner or driver of any motor vehicle involved in the accident and was not caused by the fault of any other person. In this case the claimant concedes that the motor accident was not caused by either and thereby s 5.3 is engaged, which in turn engages s 5.2 which deems the injury resulting from the no-fault motor accident for the purposes of and in connection with any claim for damages in respect of the injuries, to have been caused by the fault of the driver in the user operation of the vehicle.
The question then remains what work does s 5.5 of the MAI Act have to do. It expressly provides that Part 5 does not prevent the reduction of damages by reason of the contributory negligence of the injured person. I see no reason why the same analysis as was applied in Axiak by Tobias AJA at [85] should not apply. That analysis requires an assessment of “how far the [claimant] has departed from the standard of care he or she is required to observe any interest of his or her own safety”. Axiak involved a 14-year-old schoolgirl returning home in a school bus accompanied by her sister, who sustained injuries when she alighted from a bus and darted behind the back of the bus between its rear and in front of a following vehicle. The oncoming driver’s view of the two girls was when they first emerged from behind the bus. The Court reduced the plaintiff’s damages due to her contributory negligence in that case by 50%.
In her submissions, the claimant makes the point that her actions were reasonable in that she looked in both directions and saw no vehicle before she proceeded across the road. The extent to which the claimant did look is imperceptible in the CCTV footage. I accept the claimant’s evidence that she did look both ways. She perceived there to be no immediate oncoming traffic while she moved between stationary vehicles. Her evidence is that she could still see to her left and right according to the expert opinion. There is no evidence of alcohol or drugs contributing to the accident, although the claimant does accept, she had two “shandies”. I have no basis upon which to infer that she was affected by alcohol.
The assessment therefore comes down to her failure to use a pedestrian crossing. She says that she did not use it because she was unaware of it. The claimant submits that the finding of contributory negligence in the circumstances should be in the range of 10 to 20% on the basis that the claimant ought to have crossed the road at the pedestrian crossing located further south upon the roadway. I consider this to be the wrong question in circumstances where the claimant was unaware of the pedestrian crossing. The relevant question should be whether she ought to have sought out a pedestrian crossing at which to cross.
I am of the view that a reasonable person in the claimant’s position when crossing an arterial road in the middle of the day where traffic is perceived to be light and having checked both directions, would be understood in the context of the behaviour of a reasonable person in her circumstances not to constitute a grave or significant departure from the requirement that a person take reasonable care for their safety. Therefore, considering these matters and understanding the evaluative task that is required in an assessment of this kind as explained in Axiak at [87], I consider that an appropriate assessment is the midpoint of the range submitted by the claimant, being 15%. This account for the failure of the claimant to take the extra relatively simple step of seeking out a location of a crossing nearby, which had she done, she would have located not far from where she crossed.

ASSESSMENT OF DAMAGES SUMMARY

Under sub-section 94(1)(b) of the Act, I am required to make an assessment of the amount of damages for that liability that a court would be likely to award.
I assess the claim as follows on the findings set out above:
Non-Economic Loss $300,000

COSTS AND DISBURSEMENTS

The claimant submits that the insured pay the claimant's costs pursuant to the Act and Regulations generally and are particular pursuant to s 6.21 of the MAI Act providing a cost penalty of 25% increase for unreasonable denial of liability.
As the claimant has succeeded on the basis of this denial of liability, I do not consider this appropriate case to consider a question of punitive costs.
The amount of the claimant’s costs in the matter has been assessed as $42,186.17
inclusive of GST.
Due to the complexity and novelty of the matter I permit the Australian legal practitioner retained by the insurer to be paid her legal costs incurred in representing the insurer in connection to the claim for statutory benefits pursuant to s 8.3 (4) of the Act at the rate of $311 per hour ex GST.

CONCLUSION

My determination of the Miscellaneous Claims Assessment Dispute and the Damages Claim is as follows:
(a) for the purposes of s 3.11 of the MAI Act, the motor accident was not caused by the fault of another person;
(b)    the effective date of the determination in paragraph (a) above takes effect on 1 July 2019;
(c)    the amount of the claimant’s costs in the miscellaneous claims assessment matter is $1,876 inclusive of GST;
(d) the amount of damages I have assessed as owing to the claimant is $300,000, which I have reduced in accordance with the provisions of s 5.5 of the MAI Act by 15%, to award, $255,000, and
(e)    the amount of the claimant’s costs in the common law damages claim matter is $42,186.17 inclusive of GST.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
· MAI Act;
· MAC Act;
· CL Act;
· Law Reform (Miscellaneous Provisions) Act 1965 (NSW);
· Motor Accident Injuries Regulation 2017, and
· Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW).

[2022] NSWPIC 758

13 November 2022