Stuparu v GIO
[2021] NSWPIC 189
•23 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| Citation: | Stuparu v GIO [2021] NSWPIC 189 |
| APPLICANT: | Alexandru Stuparu |
| RESPONDENT: | GIO |
| Member: | Terence Stern |
| DATE OF DECISION: | 23 June 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act 2017; motorcycle accident; T-intersection; vehicle failed to give way; Police and Ambulance did not attend; fractured left-hand; swerve then came off his motorcycle; raining; rider fell with his motorcycle, and he skidded along the road with his bike; independent witnesses; conflict in the evidence; contributory negligence; Held- driver of the vehicle at the T-intersection most likely more responsible than the claimant. |
| Determinations made: | 1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the Claimant. 2. Effective Date: This determination takes effect on 16 June 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015, Personal Injury Commission Regulation 2020 is $1,796.30. 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
NATURE OF THE DISPUTE
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) (e) of the Motor Accident Injuries Act2017, about whether the Claimant who sustained injury in a motor vehicle accident on 10 September 2020 was the person mostly at fault.
Background
The Claimant alleges he was injured in a motor vehicle accident on 10 September 2020.
The insured driver alleges that an unidentified vehicle was at fault.
Police did not attend.
The Claimant reported the accident to the Police on 18 September 2020.
The Police did not investigate the accident.
The Insurer alleges the Claimant was wholly or mostly at fault.
Issue
The issue in dispute is whether, for the purposed of the Motor Accident Injuries Act2017 (‘the Act’), the Claimant was mostly at fault.
Abbreviations
I use the following Abbreviations in these Reasons:
Alexandru Stuparu ‘Claimant’ AAI Limited ABN 48 005 297 807 AFSL 230859 t/as GIO ‘GIO’ Date of Original Decision Denying liability of statutory benefits of 21 December 2020 “Original Decision ‘Original Decision’ Internal Review 2 February 2021 ‘Internal Review’ Accident of 10 September 2020 ‘the accident’ Application for Personal Injury benefits by the Claimant ‘APIB’ Open Reduction and Internal Fixation ‘ORIF’
Chronology
I briefly set out the Chronology:
15 September 1996 Birth of the Claimant 10 September 2020 at about 8.30 pm Accident 28 September 2020 Claimant lodges APIB 21 December 2020 Liability Notice – Benefits after 26 weeks issued by GIO denying liability for payment of Statutory Benefits after 26 weeks 21 January 2021 Application for Internal Review 2 February 2021 Internal Review upholds decision of 21 December 2020 denying liability
Evidence
Claimant’s Statement of 16 May 2021
The Claimant made a statement on 6 May 2021 which I briefly summarise to the extent relevant to this determination. I adopt his paragraph numbers:
“1. On 10 September 2020 the Claimant was the rider of a motorcycle AUA61.
10. At about 8:50 pm was travelling on Stoney Creek Road, Bexley.
12. At about 50km/h in a Westerly direction.
13. Was proceeding straight. Was approaching the T-intersection with Salisbury Avenue when suddenly and without warning a vehicle failed to give way at the intersection and proceeded to make a right-hand turn into the Claimant’s path of travel and onto Stoney Creek Road.
14. As soon as he saw the vehicle, he ‘slammed on’ his emergency front brakes to avoid a collision.
15. The motorcycle tilted to the right and went into an irrecoverable slide. He noticed that the same vehicle that had failed to give way, reversed out of the way and:
‘back into its normal position prior to protruding onto the intersection.’
17. After the accident was in significant pain and could not move.
18. The motorcycle was damaged in the area of the fairings, mirrors, front brake lever, brake master cylinder, frame slider and a bent rear brake lever.
20. Police and Ambulance did not attend.
21. The woman in the motor vehicle which failed to give way approached him and asked if he needed an ambulance.
22. Another woman approached him and handed him a card with details of a person by name Ivy Ho.
23. An Uber driver also stopped to assist. He left after carrying the bike to the side of the road.
24. Telephoned a friend, Stephen Howard to come to his help. His friend Richard Nicholas was also near the scene.
26. Richard collected his motorcycle and rode it to his home. Stephen drove him to Canterbury Hospital.
27. Fractured left-hand.
29 15 September 2020 was discharged from hospital.
31. 18 September 2020 reported the Accident to the Police.”
Statement of Richard Nicholas made 20 October 2020
I briefly summarise the statement of Mr Nicholas which was given to an investigator. I refer to paragraph numbers 12 – 26:
“12. About 9pm, was power walking to the park past the mechanics shop on Stoney Creek Road. Saw a vehicle pull out from a street, being the first street on his left past the intersection with Medway Street on Stoney Creek Road. Saw the driver stop at the intersection for about half a second then proceeded to come onto Stoney Creek Road. He understood the intention of the driver was to turn left into Stoney Creek Road.
13. She pulled out, saw the motorcyclist come down the road. Saw his brake lights come on and saw him swerve and then come off his motorcycle.
14. There was no contact with the car by either the motorcycle or the rider.
15. Was just reaching the corner of the intersection when it happened.
16. He would have been about one car length away when she pulled out in front of him.
17. Could hear the motorcycle approaching the intersection.
19. The woman got out of her car, a white Toyota 4WD. The driver was wearing a hijab. She asked the rider if he was okay and if he wanted an ambulance. He said no, that he would be alright and that he had friends who would take him to hospital.
20. There was another person with him, Stephen Howard. He took the rider to hospital.
22. It was raining at the time of the accident.
23. There was one other car which stopped. Thinks it was a black sedan. It was driven by a female.
26. She pulled out halfway into the left lane. The rider was in the left lane when he skidded and lost control. He could not have avoided the accident.”
Statement of Wafaa Najem made 23 October 2020
Wafaa Najem gave a statement to the Insurance Investigator. I briefly summarise, adopting the same numbers:
“11. Does not remember the date of the accident but remembers the time being after 9 pm.
12. Was driving down Salisbury Avenue intending to turn right into Stoney Creek Road. Was the first car back from the intersection and was stopped and waiting to turn right.
13. When she first looked, she saw the traffic lights at Medway Street were red and it was clear for her to turn.
14. Was looking to her right and left, double-checking and saw a motorcycle approaching. She could see that the motorcycle was losing control and so stayed where she was and watched the motorcycle come towards her.
15. Cannot remember how much she had moved after she had stopped and was going to turn right, as there was no painted line on Salisbury Avenue, no stop sign and no give way sign.
16. She could see the bike was:
‘going right left, not going right left and having fun but going right left and losing control’.
The bike was wobbling, and he was going to fall.
18. When she was driving down Salisbury Avenue there were no cars in front of her.
19. The rider fell with his motorcycle, and he skid along the road with his bike.
21. Does not remember which lane the motorcycle was in when he approached her heading west.
23. Saw the lady give the rider her business card. I asked for one. Her name was Ivy Ho.
24. A man on a pushbike stopped and came over.
31. The rider called me a week or two later. Told him there was no accident and he was losing control and he fell down… The rider was speeding, and he lost control. She said:
‘your son was losing control, he skid along the ground.’”
Statement of Ivy Ho made 27 October 2020
Ivy Ho gave a statement to the Insurance Investigator. I briefly summarise it by reference to the paragraph numbers:
“11. The time would have been about 8:30 – 9:00 pm.
12. Was coming home to where she lives in Hurstville and was driving on Stoney Creek Road, Bexley.
13. It was dark but there were streetlights. She was driving at normal speed and suddenly she saw a motorcycle in front of her turning onto Stoney Creek Road. The distance between the motorcycle and her car was about four car lengths.
14. Saw the motorcycle slip and the rider fall.
15. Not sure what caused him to slip. Believed that he simply lost control."
Statement of Constable Kate Stojanovski made 12 October 2020
Constable Stojanovski was not at the scene and what she learned was hearsay only. She did not take a version from the Claimant, nor did he sign any documents.
Legal Framework
In making my decision I have considered the following legislation, regulations, and guidelines:
·The Act
·Motor Accident Injuries Regulation 2017
·Motor Accident Guidelines 2017
·Road Rules 2014 (NSW) – Regulations 73
·Civil Liability Act 2002
Road Rules 2014 Regulation 73 provides:
“73 Giving way at a T-intersection
(1) A driver at a T-intersection without traffic lights or stop sign, stop line, give way sign or give way line must give way in accordance with this rule.”
The common law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of the contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ said:
“……an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.”
In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
“[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ……
[117] …..the High Court held in Sibley v Kais [1967] HCA 43……that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 the court said:
‘The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.”
In T & X Company Pty Ltd v Chivas [2014] NSWCA 235 Basten JA, at [41] identified the relevant legal principles referred to in s 5R of the Civil Liability Act 2002.
His Honour then referred to the decision in Podrebersek v Australia Iron and Steel Pty Ltd 59 ALJR 492 at [43]:
“The making of an apportionment as between the Plaintiff and the Defendant of the respective shares in the responsibility of the damage involves a comparison base of culpability, i.e. of the degree of departure from the standard of the reasonable man … and of the relative importance of the acts on the parties in causing the damage…”
His Honour continued [53] to state that there were difficulties in applying the same legal principles in determining the negligence of the defendant and whether the injured party was contributorily negligent in failing to take precautions against the risk of harm.
In Boral Bricks Pty Limited v Cosmidis (No 2) [2014] NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act at paragraph [99] – [100].
McColl JA would have assessed contributory negligence at 10% (as against 30% from the majority) said [47]:
“The correct legal question in determining the issue of contributory negligence in accordance with s 5R is ‘whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had, or ought to have had, was negligent’...”
In Manley v Alexander [2005] HCA 79 the respondent was struck and injured by a tow truck when he was lying down on the carriageway on Middleton Beach Road. The appellant was travelling along the same road and was distracted by the friend of the respondent whom he believed was intoxicated. Believing that the friend was going to step out onto the road, veered to the centre of the road and maintained his speed. He then noticed something lying in the carriage way commenced braking, then thought he should not and as a consequence ran over the respondent.
Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway… at 4.00 am is… remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
Insurer’s Submissions
I briefly summarise:
1.-10. deals with background only.
11. refers to the Claimant’s statement.
12. refers to Constable Stojanovski’s statement.
14. refers to the Discharge Summary.
15. refers to the Statement of Wafaa Najem.
16. refers to the Statement of Ivy Ho.
17. refers to the Statement of Richard Nicholas.
19. not apparent whether the Claimant makes any allegation of negligence on the part of Wafaa Najem.
20. the Police report is limited to the details provided by the Claimant. I should have more regard to the evidence the Claimant did not provide to the Police.
21.1. the evidence of Richard Nicholas is contradicted by the evidence of the Claimant, two independent witnesses and Constable Stojanovski and should be treated with caution as he is not an independent witness.
21.2. the evidence of Wafaa Najem is consistent and should be preferred to the evidence of the Claimant and Richard Nicholas.
22.1. the Claimant has failed to establish that an unidentified vehicle commenced to make a right-hand turn into Salisbury Avenue across the path of the Claimant causing him to lose control of his vehicle.
22.2. on the balance of probabilities, the Claimant lost control of his motorcycle negotiating the turn from McEvoy Street into Stoney Creek Road in wet conditions.
23. where I accept where the accident occurred and set out in the preceding paragraphs, the insurer submits that for the purposes of s 3.11 and s 3.28 of the Act the accident was caused wholly or mostly by the fault of the Claimant.
24. if I am satisfied that the vehicle driven by Wafaa Najem was involved and contributed to the Claimant losing control I should still find that the Claimant’s contribution was more than 61%.
25. refers to s 5R of the Civil Liability Act 2002.
26. refers to Manley v Alexander [2005] HCA 79.
27. the Claimant knew or ought to have known that the vehicle driven by Wafaa Najem was intending to make a turn from Salisbury Street into Stoney Creek Road and that a reasonable rider would have modified his riding to permit him to stop safely in wet conditions in the event of an emergency.
CONSIDERATION
At page 8 of the Reasons for Internal Review there is a diagram which provides a reasonably good perspective of the positions of the Claimant, the witness Ivy Ho and the witness Wafaa Najem at the time of the accident. I reproduce this below, on the next page:
According to the Statement of Ivy Ho:
“[13] ...it was dark but there were street lights. I was driving at normal speed and suddenly I see a motorcycle turning onto Stoney Creek Road. I was behind this motorcycle. The distance between me and the motorcycle was about four car lengths away.”
It was not clear whether Ms Ho means four car lengths as such or 4 car lengths with a safe distance in between each car.
In any event given the distance in which her following vehicle was placed together with the rain and the darkness Ms. Ho would have had some difficulty in making out exactly what she saw with precision particularly as she qualifies it by the word ‘suddenly’.
Further, Ms. Ho states that she was not sure what caused the Claimant to slip.
Ms Ho’s evidence is not reliable as to precisely what happened leading up to the Claimant’s loss of control.Ms Ho then goes on to say:
“there was a lady, she came from the side road and we both assisted the rider to the side of the road to ask if he was okay”.
There is a clear conflict in the evidence between that provided by the Claimant and Wafaa Najem. She states that there was no other vehicle in front of her, she watched the motorcycle come towards her and she could not remember how much she had moved after she had stopped and intended to turn right. She was driving a white-coloured Mitsubishi hatchback.
The Claimant in paragraph [13] does not give a description of the vehicle which caused him to engage the emergency brake, skid and lose control.
On the balance of probabilities, particularly given that Ms. Najem probably moved off the T-intersection into Stoney Creek Road, the vehicle that caused him to apply the brake, was her vehicle.
As can be seen from the diagram reproduced at paragraph [29] of these Reasons, at this particular T-intersection Stoney Creek Road is straight.
There seems no obvious explanation as to why the Claimant’s motorcycle would have gone into a skid if he had not as he alleges taken action to avoid a collision at the T-intersection.
The driver of the vehicle at the T-intersection was most likely Wafaa Najem. She had an obligation pursuant to Road Rule 73 to give way, and on the balance of probabilities, she failed to do so leading to the accident.
Had the Claimant been keeping a proper look out, including for any vehicle at the T-intersection and considered that such vehicle may move into Stoney Creek Road, he would probably have adjusted his speed to account for that possibility. Therefore, at least to some extent, he contributed to the Collision.
Richard Nicholas may not have been an independent witness in the sense of being a stranger but just because he is a friend of the Claimant does not mean he would make a false statement which, after all is a very serious matter. He was in an excellent position to see what happened. The way he describes it is:
“I saw the driver of this car stop at the intersection for about half a second and then proceeded to come out into Stoney Creek Road…”
The Insurer relies on Manley v Alexander (citation omitted). However, applying Manley v Alexander, Wafaa Najem, accepting Richard Nicholas as having the best opportunity to observe what happened, only stopped for ‘half a second’ whereas she should have controlled:
“the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
She ought to have kept a proper lookout for the Claimant’s motorcycle and on the balance of probabilities did not do so.
The Insurer submits [21.1] that the evidence of Richard Nicholas is contradicted by the evidence of the Claimant, two independent witnesses and Constable Stojanovski. First, with respect to the Constable she is not an eyewitness and what she has to say is hearsay. Second, the evidence of Richard Nicholas is not contradicted by the evidence of the Claimant in a material way. The Claimant clearly said at [13] that:
“As I was proceeding straight and was approaching the T-intersection with Salisbury Avenue, suddenly and without any warning a motor vehicle failed to give way on the T-intersection and proceeded to make a right turn into my way of travel and onto Stoney Creek Road”.
Taking all the factual matters into account on the balance of probabilities, the significant contributing factor to the accident was the failure of the driver of the motor vehicle to enter Stoney Creek Road when it was safe to do so and her failure to give way to the Claimant’s motorcycle which was approaching the intersection.
CONCLUSION
It is not necessary for me to attribute the lesser extent of contributory negligence of the Claimant with precision, but I do not consider it was as significant as that of the driver who failed to give way at the T-intersection and therefore not, in terms of the legislation the substantial cause of the accident and not at, or in excess of 61%.
In arriving at this conclusion, I take into account s 5R of the Civil Liability Act 2002. I do not consider that the Claimant failed to take precautions from the risk of the harm that eventuated such that his share of the responsibility was that he was mostly at fault. He was not. The driver of the motor vehicle that was at the T-intersection was most likely more responsible than the Claimant for causing the accident.
Considering s 5S of the Civil Liability Act 2002 I do not consider it would be just and equitable or in accordance with the facts to determine the level of contributory negligence at or above 61%.
Was the Claimant mostly at fault for the accident? I do not find that the Claimant was mostly at fault in causing the accident (within the meaning of s 3.28 of the Act).
Legal Costs
I am satisfied the Claimant is entitled to payment of legal costs. I allow the Claimant’s legal costs of $1,796.30 including GST (under clause 35 of the Regulation). Notwithstanding that the Claimant’s Solicitor does not appear to have provided any submissions. The Claimant’s Solicitor, however, did a significant amount of work.
Dated: 23 June 2021
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
0
5
0