Su v Allianz Australia Insurance Limited
[2023] NSWPIC 33
•24 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Su v Allianz Australia Insurance Limited [2023] NSWPIC 33 |
| Claimant: | Ophen Su |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 24 January 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim; application by claimant for determination that claimant is not wholly at fault; claimant 75 years of age crossing Kings Cross Road and a light controlled pedestrian crossing on his bicycle; insured turned corner on a green light, saw claimant approaching and stopped; small portion of car over white line and into pedestrian zone; claimant collided with insured vehicle, fell and was injured; issue about the colour the pedestrian light and if red, whether it was a flashing red light; claimant riding in breach of the road rules; Held – weight given to independent witness walking in same direction as the claimant who said light was red; claimant rode onto crossing when it was red and not flashing; claimant wholly at fault; costs allowed including costs of an investigator who obtained a statement from the claimant about how the accident happened. |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 2. The amount of the claimant’s costs in the matter is $2,514.30 inclusive of GST. |
STATEMENT OF REASONS
Introduction
Mr Ophen Su was involved in a motor accident on 14 February 2022. The accident occurred around the corner from the Coca Cola sign at the top of William Street, Kings Cross. Mr Su says he was crossing Kings Cross Road on his bicycle when he was struck by a car driven by Ryan Waugh and injured.
On or about 21 April 2022, Mr Su made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz, the third-party insurer of Mr Waugh’s motor vehicle.
On 25 May 2022 the insurer issued a notice to the claimant accepting the claim, which appears to include an acceptance that Allianz is the relevant insurer within the meaning of s 3.2 of the MAI Act and therefore liable to pay Mr Su his statutory benefits.[1]
[1] The notice is found at page 14 of the claimant’s bundle of application documents A1 in the Commission’s file (the claimant’s bundle).
On 25 July 2022 the insurer issued a further notice to the claimant denying any liability to pay statutory benefits to the claimant beyond the first 26 weeks after the accident on the basis he/she was “wholly at fault in the accident”.[2]
[2] The notice is found at page 16 of the claimant’s bundle.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act and the insurer affirmed its decision[3] to deny liability.
[3] The internal review decision is found at page 73 of the claimant’s bundle.
The claimant referred the dispute about whether he is wholly or mostly at fault to the Personal Injury Commission (the Commission). The proceedings were then allocated to me for assessment and determination in accordance with Division 7.6 of the MAI Act.
Legislative Framework
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 (in respect of weekly benefits) and 3.28 (in respect of treatment and care benefits), an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.[4]
[4] Statutory benefits can also be terminated at the 26-week mark if the claimant’s only injuries are minor. There is no dispute in this matter about the nature and extent of Mr Su’s injuries as he sustained a C4, cervical spine fracture and has a left arm radiculopathy which is clearly a non-minor injury.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
If the motor accident was not caused “wholly or mostly” by the fault of the claimant under s 3.38, weekly benefits can be reduced by the degree of any contributory negligence.
Mr Su was at the time of the accident not employed and has not been in receipt of weekly statutory benefits. The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Su is wholly or mostly at fault in respect of his treatment and care benefits (schedule 2, cl 3(e)).
Submissions
Claimant’s submissions
The claimant’s submissions are dated 4 November 2022.[5]
[5] No submissions were lodged with the original application. The submissions are document AD2 in the Commission’s electronic file.
The claimant says the “key issue for determination is the colour of the traffic light facing the claimant at the time he commenced to cross the road.”
The submissions refer to the following evidence at [2]-[8]:[6]
(a) the claimant’s statement dated 16 September 2022 which says he had the green light and half-way across “the light turned red”;
(b) the claimant’s statement to the police that he had a green light and that the “car on the corner, he turned … to left” and that “he have to stop to wait for me”;
(c) the claimant first agreed with Constable O’Brien that the light was flashing green and then agreed with Constable Ellis that the light was flashing red;
(d) the independent witness does not remember if the light was flashing red or was just red;
(e) Mr Waugh said to the police that “I was ... behind those white lines … turned to green and I started to turn … the pedestrian’s light was red”;
(f) Mr Waugh told the investigator that he sat at the intersection with his blinker on, that the light turned green, the pedestrian light was flashing red, he turned when it had stopped flashing and he “double checked” the pedestrian crossing and saw the claimant “coming through rather fast”;
(g) he had a driver’s licence since December 2021, and
(h) he stopped the car as “he [Mr Su] was about to go onto the crossing from the pavement”.
[6] Paragraph numbers in submissions and statements are provided in square brackets throughout these reasons.
The claimant says at [9]-[13] that there must be finding that the claimant had a flashing red man during his crossing of the intersection (if not a green man) because the claimant, the witness and the insured in his statement to the police are all consistent.
The claimant also says I should have regard to the relative driving and road experience of the claimant and Mr Waugh and submits:
(a) the claimant is 75, came to Australia 30 years ago and has been riding bicycles since he was a boy and he had owned his bike for a year and was familiar with it, and
(b) Mr Waugh was only 17 at the time of the accident and had his provisional red “P”s less than three months before the date of the accident.
The claimant says at [17] the insured driver was an “extremely inexperienced driver”, driving a vehicle he did not own and was “likely unfamiliar with” at a busy intersection “in one of the busiest areas for traffic (and importantly pedestrians and cyclists) in all of Sydney”. The claimant says Mr Waugh would not have been familiar with the phasing of the traffic lights and “he could easily make a mistake and enter into the roadway and pedestrian crossing area whilst it was not safe, he was not authorised or it was not clear to do so.”
The claimant submits at [19] that I should “side with” him on account of his significantly greater driving experience than someone with only two month’s experience with a driver’s license.
The claimant says at [20] I should find the claimant entered the intersection on a green man which turned to a flashing red man when he was in the middle of the crossing. I should therefore find breach of duty of care on the part of the insured with no finding of contributory negligence.
The claimant submits that if I am satisfied that he entered the crossing with a red flashing light there should still be a finding of breach of duty of care by the insured but there should be a finding of contributory negligence in the order of 15%. If the light was red, the claimant says there should be a finding of contributory negligence in the order of 35%.
The claimant says:
(a) the collision occurred within the lined pedestrian crossing walk zone;
(b) the insured said he was stopped when he saw the claimant on the other side of the road and would have been aware of the claimant crossing before he entered the intersection;
(c) even if the insured had a green light as a road user he should have taken all steps necessary to avoid the collision, and
(d) “the insured has driven is vehicle through the intersection, turned left and proceeded to cross and enter the pedestrian … zone”.
The claimant argues that the bulk of the responsibility rests with the driver for entering the intersection when he sees the claimant and instead of waiting for him to cross decides to drive into the crossing in any event.
Insurer’s submissions
Second liability notice
In the second liability notice issued by Allianz, the author of the letter refers to the police report and a report from the insurer’s investigators and in particular a statement from Constable Ellis, the statement from Mr Waugh and the statement from an independent eye-witness. The insurer says:
“The evidence supports that our insured driver had the green arrow to commence the left turn and based on the insured driver and witness version of the events, the driver has been able to stop his vehicle when he has observed your oncoming bicycle. Based on the witness version, you have been unable to stop safely and have gone over the handlebars of your bike.
The evidence as provided by police and the witness shows that you have travelled across the road when there was a red pedestrian walk sign indicating that you should have stopped. In proceeding through the intersection, you have failed to take reasonable care of your own safety.
In considering the information obtained through the police and factual investigation, we consider you to be responsible for the motor vehicle accident and therefore you are wholly at fault.”
Internal review decision
The 15 page internal review decision asserts:
(a) the insured’s version is corroborated by the witness [12];
(b) the claimant was not keeping a proper lookout and did not heed the presence of the insured driver who had a green light [13];
(c) the insured driver stopped to try to avoid the collision and was not driving too fast according to the witness [14];
(d) the insured driver said he activated his blinker before he turned left [15];
(e) it is against the road rules to ride on a marked foot crossing and the claimant should have dismounted and crossed as if a pedestrian [16] and [17];
(f) it was against the road rules for the claimant to ride on the footpath [18];
(g) the insurer does not accept the claimant had a green pedestrian light facing him and has breached another road rule [20];
(h) the claimant was travelling at an unreasonable speed and was unable to bring his bicycle to a stop [21], and
(i) the claimant failed to take sufficient care for his own safety in accordance with ss 5B and 5C of the Civil Liability Act 2002.
Reply submissions
The insurer’s original submissions[7] requested the proceedings not be determined until the traffic light phasing pattern was received along with the police photographs. The insurer did not press waiting for the police photographs as the claimant confirmed that the photographs attached to the claimant’s application were the police photographs.
[7] Page 2, of the insurer’s bundle which is document R1 in the Commission’s electronic file “the insurer’s bundle”.
The insurer draws attention to the police report and the narrative of how the police say the accident occurred. The insurer notes the following from the interview with Constable Ellis:
(a) the insured’s vehicle was parked where the accident occurred “before the crossing” with one tyre on the while line and the bicycle on the ground in front of the vehicle;
(b) Constable Ellis said the claimant hit the insured vehicle and there were scrapes on the bonnet;
(c) she considered the claimant at fault because he was riding on the footpath which she says is “illegal” and that he crossed into the intersection “when it indicated that pedestrians should be stopping”;
(d) the officer read the witness’ statement, the claimant’s statement and the insured’s statement and the narrative;
(e) there was no security or other footage (CCTV) from any nearby cameras, and
(f) if the claimant entered on green and attempted to leave on red, “I would have anticipated that the bike would be further along the road than it was”.
The insurer submits that the insured saw the claimant and realised that he was not going to stop and then braked. The insurer says the claimant ran into Mr Waugh who had braked because the claimant was going too fast to stop.
The insurer cites the claimant’s statement which maintains Mr Su had a green light to cross, and that Mr Waugh’s car was coming from his left side and that the claimant said “I tried to avoid the vehicle running into me by turning my bike away from the vehicle.”
The insurer further submits:
(a) the claimant was in breach of the road rules riding his bicycle on the footpath [7];
(b) estimates of the claimant’s speed varies but it cannot be questioned that he was traveling at a much faster pace than pedestrians as he passed the independent witness [8];
(c) the claimant’s speed when entering the intersection was the cause of the accident because if he had been travelling at walking speed both he and the insured would have had time to see each other and react [9] and speed contributed to the claimant losing control of the bicycle [10];
(d) the insured turned on a green light, necked for pedestrians, saw the approach of the claimant and stopped before crossing the claimant’s path [14], and
(e) the accident arose as a result of the claimant reacting to the presence of the insured vehicle rather than any negligence on the part of the insured and there was nothing more that he could have done and he was not negligent.
The insurer says the summary of the duty owed by motor vehicles to other road users was summarised by Meagher JA in Marien v Gardiner[8] as covering the following:
(a) the duty is to take reasonable care for the safety of other road users considering all of the circumstances and the standard is objective and impersonal;
(b) whether there is a breach of duty is addressed prospectively by considering what a reasonable driver would have done in the circumstances by way of responding to a risk of injury or source of danger;
(c) determining breach is not done by asking whether different conduct would have produced a different outcome and avoided the collision;
(d) a driver is not required to know or predict every event only to take reasonable steps to address what is happening or might happen, and
(e) the driver does not have to drive in a manner and at a speed that would enable him to react to anything which might happened in the vicinity of the vehicle.
[8] [2013] NSWCA 396.
The insurer also draws my attention to the decision of Warth v Lafsky[9] where, at [58] McColl JA considered the test of factual causation in s 5D of the Civil Liability Act 2002 requires a decision about whether the insured driver’s negligence “was a necessary condition of the occurrence of the harm” which means the application of the “but for” test. And at [59] that “proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred”.
[9] [2014] NSWCA 94.
Procedural matters
The first teleconference in this matter was held on 19 October 2022. After discussing the matter with the parties, the legal representatives agreed that what must be determined is:
(a) whether Mr Su is wholly at fault – this could be approached by determining whether Mr Waugh breached his duty of care to Mr Su, was negligent or was at fault. If he was, then Mr Su could not be wholly at fault;
(b) if there is some fault on the part of Mr Waugh, whether Mr Su was contributorily negligent at all. At the teleconference, the claimant’s solicitor did not have formal instructions but agreed if the light facing Mr Sue was red, there may have to be a finding of contributory negligence against him, and
(c) if there is contributory negligence on the part of Mr Su what is the degree of his contributory negligence – if his contributory negligence is greater than 61% then he must be found to be mostly at fault and all statutory benefits will cease.
I expressed the preliminary view in the report of the preliminary conference that the matter could be determined on the papers and a timetable was set for the service of a traffic phasing patters for the intersection and final submissions from the parties.
Final submissions
The insurer analysed the traffic phasing report which identifies seven possible phases.
Phase A is said to be the only phase introduced without a specific demand and permits (green light) the insured driver to turn left into Kings Cross Road with no permit (red man) for pedestrians crossing Kings Cross Road.
If there is pedestrian demand to cross Kings Cross Road, phase F allows vehicles to go straight ahead or turn left into Kings Cross Road and there is 6 seconds of a green man and 10 seconds of a flashing red man for pedestrians.
The insurer says either Phases A or F is consistent with the evidence of witnesses.
The insurer repeats its submissions with regards to the red light (flashing or still) being present as the claimant stopped, the insured stopped, the claimant was riding his bike at an excessive speed and the insured did everything required of a prudent driver.
In a message uploaded to the portal on 19 January 2023, the claimant advised he did not intend to rely upon any further submissions in response to those of the insurer concerning the traffic phasing pattern.
Review of the evidence
Claim form and claimant’s statement
Mr Su’s application for personal injury benefits (the claim form) is signed as true and correct and dated 21 April 2022.[10]
[10] Page 2 of the claimant’s bundle.
The claimant denies any previous motor accident claims and says the accident occurred at 11.00am on 14 February 2022 at the intersection of Kings Cross Road and Victoria Street. The description of the accident is as follows:
“I was on my bicycle and crossing the intersection at Kings Cross Road and Victoria Street. I had a green man sign and commenced to ride my bike in a northerly direction. A vehicle traveling south along Darlinghurst Road performed a left turn into Kings Cross Road and struck me. I was halfway across the road when I was struck.”
Mr Su is soon to turn 76 years of age and lives in the inner city. He was not employed at the time.
In his statement dated 15 September 2022[11] Mr Su says:
[11] At page 20 of the claimant’s bundle.
(a) he has been riding bicycles since he was a boy;
(b) about 10 years ago his doctor said he had a herniated disc in his back with arthritis and he was advised to use a bicycle as exercise which he has done;
(c) he was riding on the footpath and was using the pedestrian crossing riding from south to north;
(d) he had a green light to go and about half way through, the light turned red. “A car then made a turn into Kings Cross Road and hit my bike”;
(e) he says there was no-one else crossing the pedestrian crossing when he was crossing;
(f) he had a “complete green light”,
(g) the car that hit him came from the front and was coming towards his left side and “I tried avoid the vehicle running into me by turning my bike away” and the car bumped the right side of his bike, “the front wheel”;
(h) he describes the driver as a man in this 30s, and
(i) when he was in hospital the police said he had told them the light was read but he knows the light was green.
While Mr Su said he was born in Vietnam and came to Australia in 1990, the statement notes that a Mandarin interpreter was used to take the claimant’s statement. The claimant signed the statement but there is no interpreter’s attestation clause or signature from the interpreter.
Police records and statements
Police report
The police report dated 3 May 2022 notes the weather was fine, the surface of the read was sealed and dry. It was daylight and the speed limit in the area was 40km per hour.
The police report notes there were two “units” the claimant’s bicycle and Mr Waugh’s vehicle, and that the claimant was the “unit responsible”.
The claimant was said to have nearly 29 years of driving experience and was wearing an open helmet. A blood alcohol test was undertaken at hospital and a negative result returned.
Mr Waugh was driving a Toyota Rav4 station wagon with a reported pre accident speed of 20km per hour.
The police say:
“At 11:00am on Monday 14th February 2022 a 74 male cyclist was riding in a northerly direction along Darlinghurst Rd, POTTS POINT. At the intersection of Darlinghurst Rd, and Kings Cross Rd, the cyclist has proceeded across the pedestrian crossing travelling at approximately 20km/h against the pedestrian lights. At this time, VEH2, a Toyota Rav4 was turning South onto Kings Cross Rd when presented with a Green Left Turn Arrow. DRI2 has proceeded to turn before noting a cyclist approaching at speed against the pedestrian lights. DRI2 has slowed/stopped as the cyclist has collided with the offside bonnet.”
Police records
The claimant obtained the police records of the accident which has some details blacked out.[12] These records show:
(a) Mr Waugh was interviewed at the scene;
(b) the claimant was interviewed in hospital later in the day;
(c) CCTV canvas and enquiries revealed no relevant footage;
(d) based on the independent witness, the investigation and their observations, the cyclist was considered to be at fault, and
(e) the cyclist was given a caution but not charged.
[12] Such as addresses and dates of birth of the claimant and the insured and the names and addresses of the witness and those who came to assist the claimant. A witness gave a statement to the police and has had no involvement in the insurer’s investigations. To protect his identity, he will be referred to as LK in these reasons.
The witness, LK, whose name is redacted[13] provided a statement on 14 February 2022 to the Constable Ellis. He says:
(a) he was walking from St Vincent’s Hospital towards Coles (the same direction as the claimant was heading);
(b) the claimant passed him “he wasn’t going too fast”;
(c) the witness was about five metres away and noticed the light for pedestrians was red although he did not remember whether it was solid or flashing;
(d) he saw the dark car turning onto Kings Cross Road and he says he saw a green left turn arrow and “the bicycle that passed me has entered the pedestrian crossing, while the pedestrian light was red”;
(e) the car stopped before reaching the pedestrian but the bicycle kept going towards the car;
(f) “the bicycle rider … came to a hard stop, the rear tyre lifted off the ground, the bicycle rider was thrown over the bike’s handlebars”, and
(g) he says the rider did not hit the car.
[13] His identity was revealed in the interview between MJM and the police.
Police photographs were provided:
(a) the first one (at page 61 of the claimant’s bundle) shows two white parallel lines indicating the pedestrian walking zone. Mr Waugh’s passenger side tyre is on the white line with a small “corner” of his vehicle over the white line intruding into the pedestrian zone. The green overhead traffic lights do not have any arrows only full circle lights;
(b) the fifth photograph shows that the vast bulk of the insured vehicle is back before the pedestrian zone but the claimant’s bike is straddling the white line, and
(c) several photographs show close ups of the insured motor vehicle but it is difficult to make out any of the marks or scratches.
Insurer’s investigations
The insurer retained the services of MJM Corporate Risk Services (MJM) to investigate the accident. The 78 page report is dated 1 June 2022. The first page of the report notes that the body camera interviews were “faint and muffled” and some parts of the statement could not be deciphered.
The lengthy statement with Police Constable Ellis included her reciting the statement from LK, details of which have been provided above.
Constable Ellis played the tape of the interview with the claimant to the investigator who has transcribed it. While the audio of the conversation is not before the Panel, the transcript suggests that there may have been a language issue. The claimant says among other things:
(a) he had a green light;
(b) he saw the car, but knew it had to give way to him;
(c) he tried to “push his car” – which he later explained was putting his arms out as he fell;
(d) someone said, “where is the red light for me”. The claimant was on the ground and thinks this was the driver telling someone that Mr Su had a red light;
(e) the claimant said to Constable Ellis on many occasions that the light was green “green for me”;
(f) Constable Ellis asked the claimant twice whether there was anyone else crossing the road and the claimant said there were no people and on the second occasion “No. No. No. I don’t think”. She has repeated again her understanding that the claimant was saying there were no pedestrians crossing the road with Mr Su;
(g) the transcript at page 31 records the claimant saying Mr Ryan stopped, then Mr Su stopped and then he fell. In the answer to a later question Mr Su also suggests the car stopped then the car hit the claimant;
(h) the claimant says the green light changed to red when he was in the middle of the road then the car came around the corner, and
(i) the claimant says he was riding at 10km per hour. He says people complain he is too slow when he rides on the road at that speed and so he rides on the footpath.
The police officer also played the recording of the interview with Mr Waugh which has been transcribed noting the following:
(a) “… I was coming along there. I just turned left … here. I sat at the traffic light and … green. I started to go and he came, like, through on his bike”;
(b) “So I braked and then he braked and went over the front”;
(c) Mr Waugh says he was not on his mobile, he was behind the white lines (it appears he pointed at white lines which, by inference are the lines in Darlinghurst Road);
(d) the lights turned green and he started to turn, and
(e) the pedestrian’s light was red.
Constable Ellis took the investigator through the photographs and she said at [Q 222] that the bicycle was in the centre part of the road.
Photographs taken by the investigator (in particular the photograph at page 49 of the insurer’s bundle) show that there is a green bicycle lane running east west in Kings Cross Road (at the side of the road further away from where Mr Su was coming from) and that there are no dividing lanes, but that road may be wide enough for two vehicles.
The investigator has measured the width of the pedestrian zone as 3.7 metres from what appears to be between the two lines and not including the lines themselves.
The pedestrian crossing zone in issue, is not at the actual corner but a short distance from the corner of the two roads.
None of the lights facing Mr Waugh have any arrows the traffic lights are all full circle lights.
Mr Waugh gave a full statement to the investigator. He says:
(a) he stopped at Darlinghurst Road at a red light [Q102];
(b) “when the light turned green and the pedestrian’s was red I went to turn and then the accident happened like right at Kings Cross Road” [Q103];
(c) “I dropped dad off at work and then I proceeded to drive down Darlinghurst to go home then I got into the left lane to turn and it was a red light so I sat there with my blinker on and then the light went green and then the pedestrian was flashing red from memory and then once it stopped flashing red I proceeded to turn and just double checked the either ends of the crossing and I saw the bike the cyclist coming through rather fast”;
(d) he braked and came to a complete stop and the cyclist ran into his bonnet, and
(e) he first saw the claimant as “he was about to go onto the crossing from the pavement” [Q167].
Traffic phasing
The insurer relies on the traffic phasing pattern from Transport for NSW[14] concerning the intersection of Darlinghurst Road, William Street, Victoria Street, Craigend Street and Kings Cross Road. The claimant does not challenge this report and has made no submissions in respect of it or its application to Mr Su’s claim.
[14] The document is dated 8 December 2022 and is found at page 3 of document AD3 in the insurer’s bundle.
Having considered the report, it says:
(a) there are seven phases initiated by either a vehicle stopping at a stop line or a pedestrian pushing the button;
(b) the A phase appears to be the default phase and is always present unless and until there is a demand;
(c) the phases cycle through A, B, C, D, E and F if there are simultaneous demands;
(d) a G phase is triggered if demanded by the Fire Station which is present on the western side of Victoria Street, and
(e) phase F allows amongst other movements, traffic stationary at the intersection of Darlinghurst Road and Kings Cross Road to proceed south along Victoria Street or turn left into Kings Cross Road. The pedestrian crossing across Kings Cross Road “may be introduced at the start of this phase”, if there is demand for it (presumably if a pedestrian has depressed the push button).
What is also noted at page 3 of the report is that “Victoria Street south of Craigend Street is one way southbound”. In fact, Victoria Street south of Kings Cross Road is one way southbound with northbound traffic required to use Darlinghurst Road. Darlinghurst Road and Victoria Street meet at Kings Cross Road at which point Victoria Street ends and after which Darlinghurst Road becomes two-way traffic. If Mr Su had been riding on Victoria Street, instead of the footpath, he would have been riding the wrong way against the permitted flow of vehicular traffic.
The traffic phasing pattern report also notes that Craigend Street is one way westbound in line with the William Street on ramp. While it is not specifically mentioned, Kings Cross Road is one way eastbound in line with the William Street off ramp.
The report says that “pedestrian movements are only introduced if demanded, except for the pedestrian crossing across Craigend Street which is introduced automatically”. That crossing is south of the crossing where Mr Su had his accident.
Consideration of the issues.
Evaluation of the evidence
Both the claimant and the insured have given statements to the police on the day of the accident or shortly afterwards. They have also both given other statements, in Mr Waugh’s case to the investigator on 26 May 2022. In Mr Su’s case to his solicitor on 16 September 2022.
Mr Su’s statement to his solicitor was given with the assistance of an interpreter, the statement given to the police was not. The transcript of the police interview suggests there was some language difficulty. For example the claimant at first agreed with Constable O’Reilly that he had a green flashing light and then he agreed with Constable Ellis that it may have been a red flashing light. There is of course no such thing as a green flashing light.
The claimant submitted that I should “side” with a person with 30 years’ experience compared to someone with only two months’ experience. I do not agree with that submission. I must evaluate the evidence that has been put before me to decide which evidence I reject, and which I accept and the weight to be given to any evidence I accept. The relative ages and driving experience of the witnesses in the circumstances of this case does not affect the reliability of their evidence and their credibility as witnesses.
In proceedings being determined on the papers where evidence cannot be tested by questioning it is difficult to make findings about the reliability of evidence. Having read all the material it is clear that both Mr Su and Mr Waugh were doing their best to describe what they did and saw. There is certainly a great deal of consistency between them about what happened although a significant issue where they disagree (the colour of the lights).
There has been no challenge in the submissions to the accuracy or otherwise of LK’s statement and as he is independent of both parties, in my view, his evidence should be given greater weight than the evidence of either the claimant or the insured.
What colour was the pedestrian signal facing Mr Su?
Red or green?
The claimant has been consistent in all his statements and says that he moved onto the roadway with a green pedestrian signal. Mr Waugh says that he had a green light, and that the claimant had a red pedestrian light. While Mr Waugh could not have seen the light the claimant could see, he could see the one behind Mr Su which, unless there was a light malfunction, would have been showing the same signal. The police evidence is that the lights were working.[15]
[15] See question 132 in the statement of Constable Ellis at page 23 of the insurer’s bundle.
LK says he was five metres away from the intersection, walking in the same direction as the claimant was riding and that the light facing the claimant was red and that the claimant entered the intersection when it was red.
The submissions from the claimant do not challenge the independent witness’ evidence. The claimant submits that his evidence is broadly consistent on the colour of the light. With respect there is no consistency. The claimant says he moved onto the crossing with a green pedestrian light and that it only began flashing when he was half-way across. LK says the light facing the claimant was red. While he cannot remember whether it was flashing red or a solid red, the evidence from this witness is that the light was not green. The witness says the claimant “entered the pedestrian crossing, while the pedestrian light was red”.[16]
[16] Paragraph 5 of the statement to the police, page 51 of the claimant’s bundle.
The claimant says in his statement (and to the police) that there were no other pedestrians on the road when he was crossing. The claimant has made submissions arguing that this intersection was one of the busiest in Sydney. There were certainly people around (including the independent witness) who came to assist after the claimant was injured.[17] If there were pedestrians waiting to cross Kings Cross Road but no pedestrians on the crossing with the claimant, that might support a finding that the light was red. There is no evidence from any of the statements which would support a finding that there were other pedestrians waiting at the lights at the time of Mr Su’s accident.
[17] Paragraphs 9, 10 and 11 of his statement to the police. See also the police report at pages 30-31 of the claimant’s bundle which shows there were at least four people in attendance providing aid to Mr Su.
The claimant argues that Mr Waugh is an inexperienced driver and he could have accidentally entered the pedestrian crossing with a solid green left hand turn arrow while the pedestrian light was flashing red and before it turned into a solid red light. The photographs from the insurer’s investigator[18] shows there is no green left hand turn arrow option. There is only a green solid circle light available on the lights affixed to the pole at the corner where Mr Waugh was turning. There is also only a green solid circle available on the set of lights on the opposite side of Kings Cross Road and a third set of traffic lights suspended above that pole. There are other traffic lights in the general area that have left and right turn arrows but not at this particular part of the intersection.
[18] In particular photograph 12 on page 56 of the insurer’s bundle.
I am satisfied, primarily on the basis of the evidence from LK, that the claimant did not enter the pedestrian crossing zone when the pedestrian light was green. I am satisfied that Mr Waugh had a green light to turn left and Mr Su entered the crossing with a red pedestrian light.
Was the red pedestrian light flashing?
I have not accepted Mr Su’s evidence that he entered the crossing on a green light. Mr Su also says that when he got half-way across the road, the red light started flashing. LK does not recall whether the light was flashing or solid but on the witness’ evidence that the light was red, it cannot have started flashing when Mr Su was half-way across the road, it must have started flashing as or before Mr Su entered the crossing. I therefore do not accept Mr Su’s evidence on that point.
Mr Waugh told the police and the investigator that the light for the pedestrian was red. The investigator asked Mr Waugh 221 questions and obtained much more information about the accident than the police who took a very short statement from Mr Waugh and asked about half a dozen questions. Mr Waugh told the investigator he waited for the pedestrian light to turn red before he turned.[19] And he said he turned when the pedestrian light stopped flashing.[20]
[19] Question 103 in his statement.
[20] Question 151 in his statement.
While he did not remember whether the light was a solid red or flashing red, the independent witness does not say that the pedestrian signal was green at any stage. He says “as the car has started moving, the bicycle … has entered the pedestrian crossing, while the pedestrian light was red.”
I am satisfied on the basis of the evidence from LK and Mr Waugh that the claimant left the kerb and moved into the crossing when the red pedestrian light was not flashing and therefore when pedestrians were not permitted to cross.
What was the speed of the claimant?
The police report records the claimant’s pre-accident speed at 10km per hour. In the claimant’s statement to the police, the two constables appear to repeat the word “five” after an un-transcribed response from the claimant to a question about how fast he was riding. Mr Su then said he did not ride very fast and that his bike his old and does not go very fast.[21] The claimant says after a further question from the police about the speed he was travelling that he usually rides at 10km per hour and that he is slow and that is why he rides on the footpath.[22]
[21] Page 34 of the insurer’s bundle.
[22] Page 35 of the insurer’s bundle.
Mr Waugh told the police the claimant “came flying through on the bike”.[23] The independent witness said Mr Su was not “going too fast”. Mr Su had of course ridden past the independent witness but there is no evidence as to what speed the witness was walking.
[23] Page 32 of the claimant’s bundle.
LK says the claimant braked after Mr Waugh had stopped his car and that the rear wheel lifted off the ground. While this suggests there was some speed on the part of Mr Su, I cannot make any findings as to how fast someone would have to be riding, and how hard they would have to be braking, for that to occur without expert evidence and there is none.
On the basis of Mr Su’s evidence that he usually rides at 10km per hour, I accept that was the speed that he was riding as he entered the crossing.
Did Mr Waugh stop before the accident?
Mr Waugh’s evidence is that he was stationary at red traffic lights in Darlinghurst Road. When they changed to green, he moved off and started turning the corner. He says he saw the claimant approaching on his bicycle and stopped. Mr Waugh says the claimant ran into him because he had already stopped, and the claimant continued riding. He told the police “So I braked, and then he braked”. Mr Waugh denies colliding with the claimant and says he “hit the side of the car”.
The independent witness says Mr Waugh had stopped and the claimant kept going. He says the first thing Mr Waugh said as he got out of the car was “I was stopped”. Even the claimant says Mr Waugh had stopped and then there was the collision.
I am satisfied on the basis of the consistent evidence from all three persons who have given statements in this matter, that Mr Waugh did stop on seeing the claimant as he was on the crossing.
Where on the roadway did the accident occur?
There is no dispute that the accident occurred in Kings Cross Road around the corner from Darlinghurst Road. There is also no dispute that the claimant was riding a bicycle within the pedestrian zone.
The photographs from the police and the Google images at page 44 of the insurer’s bundle shows that the pedestrian crossing is not at right angles to the footpath or traffic lanes of Kings Cross Road but on an angle in line with Victoria Street as it meets Darlinghurst Road.
Mr Waugh says in his statement that he stopped on the white line as he was turning, having seen the claimant and realising Mr Su was not going to stop. The police records indicate that Mr Waugh stopped on the white line and had not moved his car.[24] This evidence has not been challenged. The police photographs one and five satisfy me that while Mr Waugh’s vehicle (front passenger side tyre) stopped on the white line it was only a very small part of the passenger side of his car was over the white line and in the pedestrian zone.
[24] Question 31 on page 16 of the insurer’s bundle.
The insurer’s investigator has measured the pedestrian zone between the edges of the white lines which is 3.7 metres wide. Photograph five shows the claimant’s bicycle straddling the western white line. The claimant said in his statement to his solicitors that he tried to avoid the accident by moving away from the car, that is to the right. This evidence suggests to me that the claimant was riding very much to the left of the pedestrian zone and could even have been outside it, but without expert accident reconstruction evidence I do not propose to make any findings in this regard particularly noting the court’s warnings on interpreting photographs.[25]
[25] See for example Blacktown City Council v Hocking [2008] NSWCA 144.
Is Mr Su wholly at fault?
It is, in my view appropriate in a two-party collision to approach the determination of whether the claimant is wholly at fault by considering whether Mr Waugh breached his duty of care to the claimant and was negligent or in other words was at fault. If there is some fault on the part of Mr Waugh, then Mr Su cannot be wholly at fault.
The law does not require Mr Waugh to take “all steps and action necessary to avoid the collision” as submitted by the claimant. He must take reasonable steps to avoid a foreseeable and not insignificant risk of harm to a fellow road user, including pedestrians[26].
[26] See Marien at [33].
I have found above that Mr Waugh commenced his turn only after the pedestrian light had turned to red. It was, in my view, reasonable for Mr Waugh to commence his turn and proceed from Darlinghurst Road into Kings Cross Road in that situation. He had a green light, although he had to turn with caution, keeping an eye out for pedestrians. On the evidence of the claimant, there were no people on the crossing, and Mr Waugh would not necessarily expect someone on a bicycle riding contrary to the road rules to be at or on the crossing. Mr Waugh is not required to know or predict every event which might happen in the vicinity of the vehicle or be prepared to respond to every event which happens in his vicinity.[27] He is not required to travel at a speed which requires him to be able to avoid everything that might happen in his vicinity.[28]
[27] See Marien at [36]
[28] See Marien at [37] and in particular Derrick v Cheung [2001] HCA 48 at [13] (Derrick).
The claimant submits that the insured “has driven his vehicle through the intersection, turned left and proceeded to cross and enter the pedestrian [zone].” Mr Waugh has, according to the photographs stopped on the white line with a small part of his vehicle in the pedestrian zone. Mr Waugh stopped to avoid a collision. By stopping, Mr Waugh was taking reasonable care and in doing so, he did not collide with Mr Su.
Mr Su kept moving and collided with Mr Waugh. Whether this was because Mr Su did not see Mr Waugh in time or whether it was because he was riding his bicycle too fast, is not necessary to determine. There appears to have been plenty of room on the pedestrian crossing for Mr Su to avoid colliding with Mr Waugh had he observed him in time and had control of his bicycle.
Mr Su had been riding his bicycle on the footpath, which is not permitted. He had ridden on to a crossing which is not permitted. He has moved into the crossing when the light was red which is not permitted. If he had moved onto the crossing when the light was flashing, this too is not permitted. Mr Waugh on the other hand turned to his left on a green solid circle which was permitted. He was keeping a proper lookout because as he turned, he saw the claimant coming quickly towards him. He took action and stopped in a situation created by the claimant’s presence on the crossing.
As the Court said in Derrick:
“[13] Few 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.”
Mr Waugh in my view did not breach his duty to take reasonable care to prevent injury to Mr Su. Mr Waugh was not negligent and was not at fault.
As there was no one else involved, it follows therefore that the motor accident was caused wholly by the fault of Mr Su.
If Mr Waugh is wrong about the pedestrian light and Mr Su had moved into the crossing when the signal was flashing, it was still reasonable, in my view, for Mr Waugh to commence his turn because he had a green light to do so, so long as he drove at a speed that enabled him to reasonably respond to what was happening or might be expected to happen on the pedestrian crossing.
If there was some fault on the part of Mr Waugh then, in my view having considered all of the material, Mr Su’s culpability is much greater than Mr Waugh’s and I would have assessed his contributory negligence at greater than 61%. Mr Su was crossing on a red light when not permitted to do so, he was riding faster than a pedestrian can walk. While Mr Su argues that Mr Waugh should have seen him and avoided the accident the same can be said of Mr Su. He should have seen Mr Waugh and not assumed that Mr Waugh would stop completely outside the pedestrian zone. Mr Su should have been riding his bike at a speed and in a manner that enabled him to take action to avoid the collision such as stopping before attempting to cross the road, dismounting and walking with his bike across the road or moving around the stationary vehicle of which only a small part was intruding into the pedestrian zone.
The Assessment of COSTS
Should legal costs be allowed?
Section 8.10 of the MAI Act provides for the recovery of the claimant’s costs and expenses from the insurer in relation to his statutory benefits claim. Section 8.10(1) provides that only “reasonable and necessary legal costs and other costs and expenses … in connection with the claim” can be recovered.
Mr Su claims costs calculated in accordance with the sums provided for in the Motor Accident Injuries Regulation 2017 (the Regulation) and the following disbursements:
(a) Sonia Hyde $366.30 (including $33.30 GST)
(b) ATL translators $138.00 (including $12.55 GST)
(c) NSW Police $30.00
While Mr Su has been unsuccessful, he remains entitled to costs[29]. The insurer, in a message to the Commission on 24 January 2023, agrees the claimant is entitled to the maximum regulated sum and the disbursements other than that of Sonia Hyde.
[29] See AAI Ltd trading as GIO v Moon [2020] NSWSC 71 at [82].
There was only one dispute referred for determination, that is a dispute under Schedule 2, cl 3(e). Noting the agreement of the insurer, I allow Mr Su to recover from the insurer his reasonable and necessary legal costs in relation to that dispute.
As the claimant has required an interpreter and, according to his statement had a limited education in Vietnam and limited work opportunities in Australia, it was necessary, in my view, for him to engage the services of a legal professional to assist him pursue his dispute with Allianz.
The Regulation provides the maximum sum of $1,800 for a miscellaneous claims assessment matter such as this. In my view noting the amount of documentation in the matter, the lengthy submissions from the insurer and the submissions filed by the claimant, the sum of $1,800 is reasonable.
What disbursements should be recovered?
In terms of the disbursements, cl 20 of the Regulation provides the certain costs are not regulated. These include “(g) fees for police reports”. While there is both a short report from the police and more fulsome records from the police, in my view the Regulation covers fees associated with obtaining material from the police. In these proceedings, the NSW Police records were necessary, particularly as they contained the statement of the independent witness and the photographs of the scene both of which have been used extensively in these reasons. The sum of $30 is a reasonable sum and that disbursement should be allowed in full.
The Regulation also provides for the recovery of “(f) fees for interpreter or translation services”. English is the claimant’s second language and I have already noted his need for interpreting services, and the sum claimed is reasonable for the specialised nature of the interpreting services required. Therefore, the ATL invoice should also be allowed in full.
Clause 20(a) of the Regulation provides for the recovery of “fees for accident investigators’ reports or accident reconstruction reports”. I note the insurer retained an investigator, MJM, who have canvassed the scene, taken photographs and measurements, obtained lengthy statements from the attending police officer and the insured and MJM has also provided a 78 page report about what they have done. That is clearly a report within the meaning of cl 20(a).
Ms Hyde is from a firm called “Illawarra Insurance Adjustors Pty Ltd”. She appears to be an investigator retained to take the claimant’s statement. No separate formal “report” from Ms Hyde has been provided but the statement she has obtained from Mr Su was done utilising her investigation skills and does provide Mr Su’s report about the accident and his injuries. In my view the services provided by Ms Hyde come within the scope of “fees for accident investigators’ report.
The transcript of the police interview evidences the difficulty they faced obtaining a coherent statement without the use of an interpreter and therefore a statement from Mr Su was in my view, necessary. Without the statement I would have been unlikely to assess this matter “on the papers” and would have required a face to face hearing which would have resulted in additional time and cost to the parties and the Commission.
Ms Hyde has claimed 3.7 hours charged at $90 per hour to take Mr Su’s statement. The insurer objects to her invoice on the basis “those costs form part of the regulated amount” presumably for legal professional costs. While Mr O’Hare could have taken the statement from Mr Su with the aid of the interpreter, noting the hourly rate charged by the interpreter it was reasonable for Mr O’Hare to outsource this work.
The regulated amount is limited and the hourly rate of a solicitor with Mr O’Hare’s considerable experience would likely be greater than the total amount charged by Ms Hyde. In my view Ms Hyde’s invoice reflects “other costs and expenses” that are reasonable and necessary. Her invoice should therefore be allowed in full.
CONCLUSION
I have found the accident was caused wholly by Mr Su’s fault. Mr Su is therefore, pursuant to s 3.28 of the MAI Act, not entitled to statutory benefit for treatment and care expenses incurred beyond 26 weeks after his accident.
I have allowed him his costs under s 8.10 of the MAI Act and in accordance with the Regulation as follows:
(a) Legal costs $1,800 $180 GST
(b) Police records $30 No GST payable
(c) ATL translators $125.45 $12.55 GST
(d) Sonia Hyde $333 $33.30 GST
Subtotals $2,288.45 $225.85 GST
TOTAL $2,514.30
0
5
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