Stufano v Allianz Australia Insurance Limited
[2021] NSWPIC 397
•29 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Stufano v Allianz Australia Insurance Limited [2021] NSWPIC 397 |
| CLAIMANT: | Anne Stufano |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Bridie K Nolan |
| DATE OF DECISION: | 29 September 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims dispute brought pursuant to Schedule 2, clause 3(g) of the Motor Accidents Injuries Act 2017 (MAI Act), as to whether the insurer is entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident in accordance with section 3.38 of the MAI Act; correct statutory approach to the assessment required by Schedule 2, clause 3(g) of the MAI Act; following vehicle failed to keep a safe distance; attempt to overtake turning vehicle executing a right hand “hook turn”; whether the act of executing a “hook turn” was a failure to take reasonable care or “mere inadvertence, inattention or misjudgement”; not reasonably foreseeable that the following driver would understand that by this manoeuvre the claimant no longer intended to turn right and, more importantly, would try and overtake; duty to exercise reasonable care was discharged by indication of intention to turn right for 7 seconds; Held - accident solely caused by insured driver’s breaches of duty of care. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 7 April 2019. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST. 4. A brief statement of my reasons for this determination are attached to this certificate. |
REASONS FOR DECISION
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to: Schedule 2, clause 3(g) of the Motor Accident Injuries Act 2017 (the MAI Act).
This is a miscellaneous claims dispute brought pursuant to Schedule 2, clause 3(g) of the MAI Act, as to whether the insurer is entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident in accordance with section 3.38 (reduction of weekly statutory benefits after six months for contributory negligence) of the Act.
On 7 April 2019, the claimant was the driver of the motor vehicle travelling along Hospital Rd, Concord in the State of New South Wales. She intended to turn right into a driveway to the hospital when she was hit from the rear by a bus travelling in the same direction. There is a factual controversy as to the mechanics of this accident, which underpins the gravamen of the miscellaneous claims dispute.
In an internal review conducted on 11 December 2020, the insurer affirmed an original determination that assessed that the claimant was 10% contributorily negligent towards the accident. The claimant challenges that determination on the basis that she was not contributorily negligent.
In its internal review, the insurer determined the insured vehicle had failed to keep a safe distance while travelling behind the claimant’s vehicle before attempting to overtake the claimant’s vehicle on the right side and subsequently colliding with the driver-side of the claimant’s vehicle whilst the claimant was in motion of turning. However, it took the view that the claimant, in veering into the unmarked left lane, the insured driver would have construed that she was pulling over to the left lane instead of turning right. It therefore apportioned to her a contribution of 10%.
There is CCTV footage from the insured bus of the accident, upon which the parties rely. I have reviewed the CCTV footage numerous times; first, in a preliminary teleconference on 23 April 2021, at the hearing on 7 April 2021 and several times (probably 10) in deliberating upon my determination. It depicts the claimant indicating her intention to turn right into the driveway of Concord Hospital, gate 3, and the insured vehicle colliding with the driver-side of the claimant’s vehicle. The claimant had indicated her intention to turn right, 7 seconds before she commenced to execute the turn. A split second before she executed the right turn the claimant illuminated left-hand indicator, and veered halfway into the left side of the lane, which she explained to me at the hearing was the way she thought she was to execute such a narrow and tight turn, akin to a “hook turn”. To my observation, the bus driver was consistently driving unnecessarily close and at unnecessary speed, behind the claimant despite her indication that she was going to turn. For the reasons to which I will come, in the context of this miscellaneous dispute, it mattered little that she purported to exercise what she described a “hook turn”.
Documents considered
I have considered the documents provided in the application and the reply and the further information provided by the parties.
SUBMISSIONS
Claimant’s submissions
The claimant says that she intended to turn right into the hospital gate and that she had indicated and slowed down. She says the road allows for one lane of traffic in each direction with a further lane on each side which was parked cars. At the time of the accident, there had been cars parked along the left-hand side of the road. While the claimant was stationary and waiting to turn right into the driveway, a bus travelling in the same direction as she, attempted to overtake her vehicle by driving onto the incorrect side of the road and overtaking her on the right-hand side. It was at this time that the claimant had commenced her right hand turn and the bus collided with the right side of her vehicle.
She submits that the insured driver was at fault, as he had overtaken her stationary vehicle by crossing over onto the wrong side of the road. She submits that the insured driver did not take appropriate caution in doing so, ultimately causing the accident. She says that in the circumstances it would have been appropriate for the insured driver to wait for the claimant to undertake her turn and then proceed along the road. She submits that she was not at fault, as she took all necessary precautions to turn right in a safe manner.
Insurer’s submissions
The insurer relies upon the basis for its reasoning in the internal review to submit that the claimant failed in her duty of care to other road users by veering left approximately half a vehicle width, before abruptly attempting to turn right. It submits that this action could have been construed by the reasonable driver to indicate that the claimant had an intention to pull over to the left lane instead of turning right. It maintains that 10% contributory negligence is not unreasonable and appropriate given the claimant’s actions.
Claimant’s reply submissions
In reply submissions, the claimant submits that in indicating to turn right, she took the precautions of any reasonable driver to ensure any following vehicle recognised her intention to make a right turn. She notes that the insured driver could have seen that the claimant had begun indicating to turn right 10 seconds prior to turning right, therefore, the insured driver should have been aware of the claimant’s intention to turn right and ought to have maintained a safe distance to avoid a collision. The insurer appears to concede that the insured driver did not in fact keep a safe distance between himself and the claimant. She argues that the insured driver observed the claimant’s indication to turn right and had he maintained a safe distance, the accident could have been prevented as a reasonable and prudent driver would recognise that that her indication to turn right demonstrates her intention to do so.
She refers to a statement that she provided over the telephone to her solicitor on 3 May 2021, wherein she says that she manoeuvred her vehicle into the adjacent left lane, so as to execute the turn into the hospital gate entrance in one motion. She refers to a sense of feeling pressured to speed up by the insured driver, who, in her opinion, was driving recklessly by pursuing her.
She referred to the CCTV footage observed and recorded at teleconference on 23 April 2021. She says in the CCTV footage that the insured driver can be seen not to be always holding the steering wheel, and only having one hand placed on the steering wheel with the other on the ticket machine beside the steering wheel, highlighting that the insured driver was not controlling the vehicle to an adequate and proper standard. She submits in this footage the insured driver can be seen on multiple occasions to be taking his eyes off the road. She submits that he only returned his hands to the steering wheel to avoid the collision with the claimant. She submits that consistent with her sensation that he was pursuing her, and that this is explained by the fact that he was taking his eyes off the road.
She submits that because of the way in which the insured driver was driving, it cannot properly be said that the insured driver only noticed the vehicle turning right when it was too late to avoid collision. She submits that the insured driver failed to exercise his duty of care by failing to remain in control of his vehicle, by not looking at the road ahead of him, by failing to keep a proper look out and pay attention to emerging circumstances on the road. She submits that a reasonable driver would not have attempted to have overtaken a vehicle in a single driving lane, which had indicated to turn right.
REASONS
Subsection 3.38(1) of the MAI Act provides that “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”.
In answering the question posed by Schedule 2(3)(g) of the MAI Act (whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the MAI Act) the power conferred on me, 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 of the act of the parties in causing the damage: see eg. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 (Podrebersek) at 494, where the High Court said:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
16.Section 3.38 of the MAI 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) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to which it is made subject by s 3.38 of the MAI Act.
17.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]), 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 MAI Act. For this reason, caution is necessary with respect to the authorities which pre-date the MAI 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 (in particular, as derived from the nature of the role of the Commission in s 3.38(3)(c) of the MAI 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].
18.Under the new regime, the claimant’s and the insured driver’s shares in the responsibility for the injury occasioned would appear to be 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.
19.Under both the common law and the Civil Liability Act 2005 (NSW), the standard by which reasonable care of the driver of a motor vehicle is measured is an objective one to be addressed prospectively and by reference to what a reasonable driver in the circumstances would have done, if anything, by way of response to any foreseeable risk of injury or sources of danger to other road users: Marien v Gardiner [2013] NSWCA 396 at [33]-[37]; Logar v Ambulance Service of New South Wales Sydney Region [2017] NSWCA 274 at [142]; Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11]-[12].
20.As the driver of a vehicle on a public road, both the insured driver and the claimant were under a duty to other road users, including pedestrians in the vicinity of the road, and passengers of their vehicles, to avoid causing injury to those persons. The question of whether they failed to exercise the requisite reasonable skill and care, and if so whether this caused the motor accident are questions of fact to be determined under this prospective and objective analysis: Turkmani v Visvalingam [2009] NSWCA 211 at [27] (Turkmani) Hodgson JA (Beazley, Hodgson and McColl JJA agreeing); Liverpool City Council v Estephan [2009] NSWCA 161 at [42] per Giles JA (McColl JA agreeing and Basten JA relevantly agreeing).
21.It is recognised as a matter of principle, “a person driving a motor vehicle on a public road should, as a reasonable person, appreciate that there is a significant risk of causing serious and perhaps catastrophic injury to other persons; and for that reason should, as a reasonable person, exercise quite a high degree of vigilance, especially in the presence of other traffic and in the vicinity of intersections”: Turkmani at [28]. Inherent to the insurer’s position is a concession that the insured driver failed in this regard and that this failure caused the accident. The question is whether the claimant’s veering to the left was also a failure to exercise reasonable care and whether that failure, (if there be one), was also a material contribution to the accident (in that it was a necessary condition of the harm caused).
22.In considering what will constitute a discharge of a driver’s obligation to take reasonable care, the fact that the accident may have been avoided by the claimant not veering to the left does not answer this question. In any event, such a contention is mere speculation. The proposition enunciated in Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13], is relevant here, that is, “[f]ew occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.”
23.On this central issue of acting in accordance with reasonable care, King CJ observed in Fennell v Supervision and Engineering Services Holdings Pty Ltd (1988) 47 SASR 6 at 12, that “misjudgement is not contributory negligence”. Likewise, in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 310, Mason, Wilson and Dawson JJ distinguished contributory negligence as “negligence rendering [the plaintiff] responsible in part for the damage” rather than “mere inadvertence, inattention or misjudgement”. In McLean v Tedman [1984] HCA 60; 155 CLR 306, the High Court considered a finding that a garbage collector, who ran across a road from behind the garbage truck and who was struck by a motor vehicle travelling on its correct side of the road and which could have been observed by a person in the garbage collector’s position before he crossed the road for a distance of approximately 200 metres, was guilty of contributory negligence. Mason, Wilson, Brennan and Dawson JJ concluded that the garbage collector’s conduct amounted to mere inadvertence, inattention or misjudgement, and there was no contributory negligence.
24.Viewed prospectively, the probability of the claimant turning her vehicle to the right, could never have been regarded as unlikely, given the fact that she had indicated that it was her intention to do so for 7 seconds. When that was going to happen, and how that was going to happen, the insured driver could not predict. Additionally, the insured driver was necessarily required to take account of the possibility of some careless or haphazard conduct of the claimant in doing so. This is particularly so where any collision with the insured bus could result in serious injury or worse, not only to the claimant but also to the passengers onboard the insured driver’s bus.
25.In my view, the claimant acted with reasonable care by slowing down and indicating her intention to turn for at least 7 seconds prior to doing so. It was a misinterpretation or misjudgement on her part that she needed to veer to the left to turn right into the driveway safely; however, her decision to do so was not a failure to exercise reasonable care. It was not reasonably foreseeable that the following driver would understand that by this manoeuvre she no longer intended to turn right and, more importantly, would try and overtake her vehicle. Rather, her duty to exercise reasonable care was discharged by her indication to turn right for 7 seconds. It was reasonably foreseeable that a driver in a following vehicle, driving in a manner so as to exercise reasonable care would slow their vehicle down to maintain a safe stopping distance to duly allow for the possibility of the execution of the turn indicated.
26.Inversely, the evidence as a whole establishes that the insured driver did not travel at a safe distance from the claimant, did not pay due attention to the road as would be expected of a reasonably prudent bus driver travelling in a congested road area with numerous passengers onboard his bus, did not adequately control his vehicle, did not apply his brakes appropriately when the claimant was indicating she was going to turn right, and was travelling too fast to avoid colliding with the rear of the claimant's vehicle when she did slow to execute the turn. There is, therefore, no need for me to assess the degree of departure from the standard of care and of the relative importance of the acts of the parties in causing the damage, because I am reasonably satisfied that the claimant was not contributorily negligent, and that these breaches by the insured driver of his duty of care were, as a matter of fact, the sole cause of the accident.
27.For these reasons, I find that no contributory negligence is made out.
28.Accordingly, for the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident.
29.I award costs to the claimant in the amount of $1,660 plus GST.
Legislation
30.In making my decision I have considered the following legislation and guidelines:
•the MAI Act
•Motor Accident Injuries Regulation 2017
•Civil Liability Act 2002 (NSW)
•Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
B. K. Nolan
Member (Motor Accidents Division)
Personal Injury Commission
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