Taaga v Cic Allianz Insurance Limited
[2023] NSWPIC 49
•13 February 2023
CERTIFICATE OF DETERMINATION OF MEMBER Citation:
Taaga v CIC Allianz Insurance Limited [2023] NSWPIC 49
Claimant: John Wesley Taaga insurer: Allianz Australia Insurance Limited Member: Terence Stern OAM DATE OF DECISION: 13 February 2023 CATCHWORDS:
MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; decision issued under section 7.6; breach of duty of care conceded; damages agreed at $1,900,000.00; contributory negligence and apportionment in dispute; Held – contributory negligence apportioned 45% to the Plaintiff and 55% to the Insured Driver.
determinations made: CERTIFICATE OF DETERMINATION
Issued under division 7.6 of the Motor Accident Injuries Act2017
The findings of the assessment of this dispute are as follows:
1. The Insurer is liable to pay damages to the Claimant in the sum of $1,045,000.00.
2. I determine contributory negligence of the Claimant at 45% and I have reduced the agreed damages of $1,900,000.00 by 45% to arrive at $1,045,000.00.
3. The total legal costs, regulated disbursements and unregulated disbursements are assessed at $76,860.36.
STATEMENT OF REASONS FOR CERTIFICATE OF DETERMINATION
Issued under DIVISION 7.6 of the Motor Accident Injuries Act 2017
introduction
At about 12:15pm on 7 July 2019, the Claimant, who was significantly intoxicated was attempting to cross Shepherd Street, Colyton, when he fell onto the road. He was attempting to stand but had not succeeded to completely stand and was still crouching when he was struck by the Insured vehicle, as a result of which, he sustained injury, loss, and damage.
scope of the dispute
The parties have agreed that the Insured driver was guilty of breach of duty of care and is, therefore, liable for payment of the agreed $1,900,000.00 in damages, subject to any deduction for contributory negligence.
The appropriate reduction for contributory negligence.
Costs.
THE EVIDENCE
Claimant’s statement of evidence 18 October 2021
The Claimant states:
“[2]He was born on 14 October 1993;
[4] About 7:15 pm on 5 June 2019, he left home to go to the Lucky Australia Hotel with several of his friends. He was wearing a maroon Queensland jersey and black shorts;
[5] At about 11:30 pm the Claimant’s fiancée, Maxine Vaifale, picked him, and two of his friends, up from the Hotel in a black Nissan Navara, and that is the last thing that he remembers.”
Interview of Maxine Viafale 29 August 2019
I briefly summarise the record of interview Maxine Vaifale gave to an investigator, George Bilic, on 29 August 2019 at 5:40 pm, by reference to the question numbers:
(11)I was getting ready, like I was getting out of the car.
(12) To go, cause he fell over.
(13) Driving a black truck, a Nissan Navara.
(17) Had been driving (Claimant).
(20) My fiancée.
(21) I was bringing him home.
(22) He needed to get out to go pee.
(24) Shepherd Street.
(26) At Potter Field Sporting fields.
(27) There’s a grass area. Just before the driveway.
(31) Dollin (Street). Turned into the driveway and turned around.
(32) Faced towards Bennett Road right.
(33) On Shepherd, facing towards Bennett.
(34) I was literally on the corner because where he got out, where I stopped was right in front of Dolin Street, so I couldn’t park, but I stopped right on the corner.
(36) (There were) white streetlights.
(37) No traffic.
(38) In answer to the question “when did you first see the other vehicle, the vehicle involved in the accident?” she answered “not until he was, like, hit. Cause I didn’t see. I turned in time to see the impact.”
(41) So, I parked the car, Wesley was crossing the road, but he fell, but he was still in the right lane.
(42) (He was crossing the road) to come to me.
(43) He fell to the right side where the traffic comes from Bennett Road, but when he fell, I yelled out to him to get up before a car comes, but he was already starting to get up, so I was getting out (from the car), opened the car door from the outside, but the thing is I jumped out with my seatbelt and that was the only thing… The last time I looked he was already on… He was on his knees.
(44) On the road.
(47) Already in the lane. The only reason why I didn’t see the impact was because I turned around just to throw my seatbelt in, and just as I threw my seatbelt in, I remember hearing the impact, and then turning around.
(50) I saw him, rolling, but flying... I saw his body roll in the air, and then land, and he was on his side. He landed a fair distance.
(52) Male passenger in taxi. I didn’t hear anything until after the impact, but I remember a red car with another man came and pulled up.
(53) The taxi was white.
(57) Saw damage to the taxi on the right-hand side.
(59) Divots at front of the car.
(62) Before the accident he was drinking.
Statement of Dilbagh Singh Kahlron (Undated)
Mr Kahlron was the driver of the taxi involved in the collision, and, on 6 June 2019, he answered questions put by the Insurer’s investigator George Bilic. I summarise the answers by reference to the paragraph numbers:
(5) Born 5 July 1956.
(62) Was driving west along Shepherd Street. The closest cross-street was Dollin Street.
(64)The other party involved in the accident, was that another car or a pedestrian or a -
A.No pedestrian, nothing there. (Mumbled conversation 12:12) Pedestrian.
(65) So someone walking, was it?
A.They were just on, the ... conversation in another language. People huh.
(66) Ok, but was the other party, were they someone walking or were they in a car or on a bike, how were they moving?
A.They were just on, the… conversation in another language. People huh.
(67)They were standing on the road?
A.They were standing on the road.
(68)So not someone In a car or vehicle?
A. Nup. Not on the road like on the side of the, on the foot path.
(69)Yeah, you still haven't answered my question, was it someone in a vehicle or just someone standing?
A.Standing.
(70)Ok.
A.I don't know he's got his vehicle or anybody's vehicle don't know. He was standing. I didn’t see him you know. Then he come and hit my car, I understand what happened, who was?
(71)And what speed would you estimate that you were driving?
A.Like 40-45.
(72)Ok. And so you were coming to the Intersection with Dollin Street and then when did you first notice this other person?
A.Then I see it happened this one, he hit me car and he hit and fell down in the middle of the road.
(73)Where abouts did he hit your car?
A.In the front on the light. Headlight.
(74)The front driver’s headlight?
A.Driver’s headlight yeah.
(75)And he fell to - -
A. Fell down on the road, yeah.
(76)And then what did you do?
A.Just I (inaudible 13:53) what's wrong, because I didn't see him you know. And then I see (inaudible 13:58) covered in blood you know, his girlfriend (inaudible 14:04) and I guess I see the... I call to the ambulance. Yeah.
Statement of witness Lele Alofa 2 October 2019
The statement was provided to the Police on 2 October 2019, and I briefly summarise the answers:
i.Alofa was driving along Shepherd Street, in a westerly direction. He had a front seat passenger, his nephew.
ii.After passing Blattman Street, the passenger saw a male person laying on the road in the lane in which Mr Alofa was driving.
iii.Mr Alofa immediately slowed down and swerved around the person.
iv.He was travelling about 50km/h before seeing the person.
v.He drove a short distance and turned back around to check on the person on the road. He then, as he was turning, saw a taxi driving along Shepherd Street, in a westerly direction. He saw the male person try to get up from the ground.
vi.He saw the person’s head collide with headlights of the taxi, causing the person to be thrown.
vii.There was hardly any traffic on the road. It was very dark.
viii.He was only about 5 metres from the male person before he saw him, and he had to act quickly.
Expert Report of Trevor Booth 20 October 2022
Trevor Booth, mechanical engineer, provided a Report to the Claimant’s Solicitor of 26 October 2022.
Mr Booth sets out his qualifications at paragraph [1]. His qualifications are such as to permit Opinion evidence to be given and received by this Tribunal.
Mr Booth sets out the assumptions he has made [part 3]. None of the assumptions are contentious.
Mr Booth then describes the circumstances of the accident, and again none of the factual summary is contentious.
Mr Booth sets out a number of conclusions, which are relevant to the speed of the taxi immediately prior to the collision. On his calculations, where the taxi came to rest, approximately 18-20 metres from the impact point, estimated from the photographs and sight measurements, allows Mr Booth to conclude that the taxi was being driven at a pre-impact speed of about 60 km/h. Assuming a braking distance of 18 metres, would, however, indicate a pre-impact speed of 56 km/h, and he therefore concludes that the speed was in a range of 55-60 km/h.
Mr Booth took a photograph (subsequently) which showed a comparable view, showing the degree of visibility 45 metres from the impact position.
Mr Booth noted that the taxi driver had been driving for nine hours, and that the event took place at a time after midnight, so that it was (he concluded) very likely that the driver’s attentiveness to the roadway would have deteriorated to some extent and this would have had an impact on the driver’s ability to react and avoid hitting the Claimant.
Mr Booth comments on the Report of the Insurer’s expert, William Keramidas, as follows:
(8.1)No site visit; relied wholly on Police evidence.
(8.2)The figures are out of proportion and do not give a true picture of the relationship of the taxi with the impact location assumed by the Police.
(8.3)Mr Keramidas fails to point out that the formula cited in his Report, for estimating speed, has a tolerance of +/-10.5 km/h.
(8.4)Mr Keramidas applied a braking distance of 13.8 but did not say how he arrived at that figure.
(8.5)Mr Keramidas states that “it is clear that braking occurred after impact”.
(8.6)There is no evidence to support that statement. There is evidence that the driver tried to stop, then struck the Claimant.
(8.7)Mr Keramidas cites a table from the SAE paper, it is important to relate this to the vehicle type.
(8.8)The vehicles nominated in the SAE Papers are not representative of the Toyota Taxi.
(8.11)Both vehicles are of more solid construction and would cause more injury at a lower speed.
(8.12)The taxi had a Raw Energy Absorbent Front, meaning that it would need to be travelling at a higher speed to cause the same amount of injury.
(8.13)Mr Keramidas relied on Police photos. They are of very poor quality.
(8.14)The Police photos distort the glare from the message sign, the vehicle’s rear lamps and the streetlamps.
(8.15)Mr Keramidas assumes that there was oncoming traffic pre-impact and that the oncoming headlamps would have made it difficult for the taxi driver to identify Mr Taaga on the roadway.
(8.16)Mr Alofa was turning around at Dollin Street, about 85 metres from Blattman Street, when he saw the taxi hit Mr Taaga.
(8.18)It is very unlikely that the headlamps from Mr Alofa’s vehicle interfered with the ability of the taxi driver to see Mr Taaga and take evasive action.
Mr Booth sets out his opinion in part [9]:
(9.1)The taxi speed was likely to be 55-60 km/h.
(9.2)The driver had time to react and commence braking before he hit the Claimant.
(9.3)Mr Alofa saw and avoided the Claimant at a speed of 50 km/h. In identical road conditions, the taxi driver did not avoid the Claimant.
(9.4)If the taxi driver was travelling at 50 km/h, he could also have taken evasive action.
Report of William Keramidas 27 June 2022
William Keramidas reported at the request of the Insurer on 27 June 2022.
Mr Keramidas sets out his qualifications and experience and he also has established an entitlement to give Opinion evidence.
He reaches the following conclusions, which I refer to by paragraph number:
(1)The site was assessed using a combination of aerial and ground-based imaging. He relied heavily on Police photographs. The likely impact configuration had the Claimant hunched over on his knees.
(2)The impact to the taxi was to the driver’s side, from the centre of the vehicle to the front of the side-corner.
(3)The impact location was identified by consideration of the debris field and found to be consistent with Police identification of the impact to rest distance of the Claimant of about 12 metres.
(4)The likely speed of the taxi was about 40 km/h and was likely to have involved heavy braking, about one-third of a second after impact.
(5)Visibility issues were considered. The nominal recognition distance was about 25 metres. Additional light sources were likely to provide some glare to the Insured as he approached.
(6)The Claimant should have been able to observe the approaching headlights for about 10 seconds at least.
(7)The Insured would be expected to have responded, on recognising the Claimant, at a range of 1.8-2.4 seconds.
(8)The Insured was likely to have detected the presence of the Claimant between 17-23.5 metres prior to impact, entirely consistent with the extent of the visibility, likely to have been available.
(9)Taking into account the extent of visibility and the required perception/response time, the collision was unlikely to have been avoidable.
Supplementary Report of Mr Keramidas 16 November 2022
Mr Keramidas provided a Supplementary Report in reply to the Report of Mr Booth.
Mr Keramidas undertook an inspection on the evening of 10 November 2022 and again on 11 November 2022. The latter, being a daylight inspection and survey.
The images (Still 01 - Still 05)
The five Stills reflect the effects of low-beam headlights, travelling west on Shepherd Street on the approach to, and beyond, the intersection with Blattman Street. Mr Keramidas comments:
“The capture of the night-time vision through the GoPro camera is relevant as experience is shown that the headlight “cut-off” line is representative of the lux levels required to observe a dark object at or near the road surface level.”
Mr Keramidas further opined the effectiveness of the streetlights was minimal as they were set for route guidance and intersection location only and had virtually no effect on illuminating the area where the incident took place.
After analysing Mr Booth’s Report, and considering his analysis and criticisms, Mr Keramidas sets out his revised conclusions at page 20:
“i.The conditions and available street lighting did not provide any aide to the earlier detection of the Claimant lying on the road.
ii.Ms Viafale provided the further version, however, there is no documentation as to what information she provided. If Ms Viafale’s further version is correct, it would place a point of impact further east than originally assessed. This, however, appears to be inconsistent with scuff marks evident on the road surface and the police reporting as to the point of impact.
iii.Even assuming Ms Viafale’s nominated point of impact is correct, it would only increase the likely impact speed of the taxi to about 47km/h. there is no evidence to suggest that the Insured was exceeding the speed limit.”
A review of Mr Booth’s Report does not cause Mr Keramidas to alter his views.
Report of Dr Judith Perl 22 October 2021
On 22 October 2021, Dr Judith Perl provided a Report to the Insurer’s Solicitor. She has a lengthy experience as a pharmacologist, and it would be accepted that she is entitled to give Opinion evidence by reason of her qualifications and experience.
Dr Perl summarises her opinion at point [2]. Her conclusion, based on the history she recounts, is that the Claimant’s most likely Blood Alcohol Concentration (BAC) of 0.288g/100mL allowed a conclusion that the Claimant would have been under the influence of alcohol, to such an extent, at the time of the accident, that there would have been a very substantial impairment of his cognitive and motor functions, which would have, most likely, resulted in his safety being very significantly compromised. His visual scanning, peripheral vision, speed of processing information from his visual field, his capacity to make rational decisions, his divided attention and rational skills would have all been very significantly and, most likely, grossly impaired. There would have been a very significant impairment of his capacity to exercise reasonable care at the time of the accident.
Insurer’s final submissions 13 December 2022
I briefly summarise the submissions by reference to the paragraph numbers:
(4) Refers to s 4.17 of the Act, which provides that the Common Law and enacted law, as to contributory negligence, apply to an award of damages in respect of a motor accident.
(5)-(6)Refers to s 5R of the Civil Liability Act 2002 (NSW) (‘CLA’).
(7) The principles are set out in s 5B.
(8) The risk of harm was of being struck by a motor vehicle. The risk was not insignificant and a reasonable person, in the Claimant’s position, would have taken precautions against such a risk.
(9) Refers to what McHugh J said in Joslyn v Berryman [2003] HCA 34 at [39].
(10)Refers to s 4.17(3) (MAIA).
(11) Refers to s 5F of the CLA.
(12) Refers to Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34.
(13) Analysis of the relevant degree of culpability requires consideration of the facts.
(14) Drinking at the Lucky Australian Hotel at St Marys.
(15)Was intoxicated, with a BAC of 0.27. Dr Perl opined that the most likely BAC, at the time of the accident, was 0.28. This would have caused a very substantial impairment of cognitive and motor functions.
(16) The Claimant was being driven home by Maxine Viafale.
(17)The Claimant got out of the vehicle at Potter Field, Shepherd Street. Ms Viafale then turned her vehicle to face east, opposite the park, near the intersection with Blattman Street.
(18) The accident occurred in the west-bound lane of Shepherd Street.
(19) Refers to the observations by the attending Police, that the street lighting was poor, at best.
(20) The Claimant was wearing a black jumper and a Maroon Queensland football jersey and black trackpants and black shoes.
(21) Police took statements and prepared a site diagram, depicting a distance of 12 metres from the point of impact, to where the Claimant was found.
(22) Police photograph 6 shows the likely rest position of the Claimant after impact in the east-bound lane, adjacent to the driver’s door.
(23) Mr Keramidas noted that some of the Police photographs showed scuff marks which travelled to the point of rest. These scuff marks were consistent with 12 metres measured with the Police.
(24)-(33)Summarises the statement of Maxine Viafale.
(34)-(37)Summarises the statement of Lele Alofa.
(38)-(41)Summarises the statement of the Insured driver.
(42) Notes that the Claimant has no memory of the accident.
(44)No lay evidence that the Insured driver drove in excess of the speed limit of 50 km/h.
(45)-(69)Refers to the findings and opinions of the experts Mr Keramidas and Mr Booth.
(70) Makes submissions on the findings that ought to be made:
(i)Accident occurred after midnight.
(ii)The lighting conditions were dark.
(iii)The Claimant was intoxicated and was being driven home.
(iv)He exited the vehicle, at Potter Field (sic), in order to urinate.
(v)Maxine Viafale turned the vehicle and parked in the opposite direction, near the intersection with Blattman Street.
(vii)The Claimant started crossing the road, to return to the vehicle, stumbled and fell in the west-bound lane on Shepherd Street.
(viii)He lay on the road.
(ix)Lele Alofa noticed the Claimant, after he passed Blattman Street, when he was approximately 5 metres away.
(x)He was able to swerve and avoid him.
(xi)Mr Alofa continued and turned around on Shepherd Street to proceed West.
(xii)Mr Alofa returned along Shepherd Street West.
(xiii)The Insured driver was driving under 50 km/h.
(xiv)The Claimant was in a crouched position on the road, attempting to get up. The Insured driver did not see the Claimant.
(xv)The Claimant was thrown 12 metres as a result of impact.
(71)-(83)The submission that I should make following findings of fact:
(71) The Claimant failed to take precautions against a foreseeable and not insignificant risk of harm.
(72) A just and equitable reduction would be very high, even as high as 100%.
(73) Refers to what Hodgson JA said in Turkmani v Visvalingam [2009] NSWCA 211 at [55]:
"[55]The fault of the Appellant which would prove… was no more than a quite small falling short of the high standard of vigilance required of a driver in traffic approaching an intersection. On the other hand, the deceased deliberately broke the law by going onto the road against the “don’t walk” sign thereby intentionally giving rise to a situation where he and other road users were put at serious risk. The risk thus deliberately created by the deceased was not merely to himself, because a pedestrian on the road in traffic in an unexpected position can cause cars to swerve and crash. I take into account that the appellant was driving a car capable of causing very severe injury but deliberate action of the deceased was also capable of causing very serious injury by cars, not only to himself but also to others, for the reasons I have given. Further, the action of the deceased in emerging at a jogging pace from behind the white van was a further action causing great risk to himself and others.”
"[56]In those circumstances, I would assess contributory negligence at 80%.”
(74) The Claimant created risk, not only to himself, but to other road users.
(77)-(78)Refers to Manley v Alexander (2005) HCA 79.
(79) In Vale v Eggins [2006] NSWCA 348, an intoxicated pedestrian stumbled onto roadway, into the path of a vehicle. Contributory negligence was assessed at 75%.
(80) In Hawthorne v Hillcoat [2008] NSWCA 340, the Court considered that the driver was negligent because she did not appreciate the deficiency of street lighting, coupled with the effect of the curving of the road, and her headlights being on low beam, meant that in the event of a pedestrian standing in the darkened area, paying no attention to traffic, the driver may not be able to see that person.
(82) In the circumstances of this case, a reduction of 100% would not be unreasonable.
(83) Alternatively, a finding of 80% contributory negligence would be just and equitable.
Submissions on behalf of the Claimant 7 October 2021
30. I briefly summarise the submissions on contributory negligence by reference to the paragraph numbers:
(2) A vehicle in front of the taxi veered around the Claimant and avoided the collision.
(3) The issues are why the Respondent did not take the same action and whether the Claimant should bear a percentage of responsibility.
(5) The lighting was adequate for the driver in front to see the Claimant on the road, prior to the accident, and take a successfully evasive manoeuvre. Further:
5.1 The lighting was very good in the circumstances.
5.2 The scene was a flat, straight road.
5.3 There was a 50 km/h speed limit.
5.4 The headlights of the taxi were working.
5.5 The driver saw the Claimant before the collision.
5.6 The driver saw the Claimant semi-standing on the road.
5.7 The driver told the investigator that he thought he saw the Claimant “coming towards him”.
5.8 The driver admitted to a speed of 40-45 km/h.
5.9 The driver did not state that he braked before the impact.
5.10 There is no statement about taking any action to avoid a collision.
5.11 The impact of the accident caused the Claimant’s body to be thrown a significant distance, through the air, before landing on the road.
5.12 When Ms Viafale saw him, the Claimant was on his knees, getting up into a standing position (answer to Q.47)
5.13 Ms Viafale saw a car that went around the Claimant, in front of the taxi.
(6) Facts suggest the Claimant was clearly visible for some time prior to the accident.
(7) The submission then refers to s 4.17 of the MAIA.
(8) The submission continues [10] by referring to s 5R CLA.
(11) Section 5R requires that the principles applicable, in determining whether a person has been negligent, also apply to determining whether the person, who suffered the harm, has been contributorily negligent in failing to take precautions against the risk of that harm.
(12) The submission argues that the actual risk of injury arose because the Insured driver failed to take steps to avoid the risk of running into a person. If the Defendant driver did not take appropriate evasive action, then the injury, in a causative sense, was a direct result of the breach of duty.
(13) The argument proceeds that the Defendant driver failed to take steps, that were open to him, and that is clear from the fact that the vehicle in front, took those steps.
(14) The submission argues that the actual risk of injury that the Claimant faced was not caused by him being on the road, but by a driver who failed to take evasive action.
(15)It continues that the Claimant was engaged in conduct that was antecedent to the facts and circumstances of the accident, and whatever he did or did not do, can only be judged by the facts and circumstances that actually caused the accident.
(16)Applying s 5D, the submission continues that there was nothing the Claimant did that caused the actual injury, because his actions had lost their causative potency, before the actual collision. The question, of whether there is a causal connection between the breach of duty and occurrence of the harm, is, pursuant to s 5D(i)(a), purely factual (refers to Wallace v Kam [2013] HCA 19 at [15]). Whether there is a connection between the negligence and the occurrence of harm, is purely factual. In this case, there was no relevant connection.
(17) Cases such as T & X Company Pty Ltd v Chivas [2014] NSWCA 235 are distinguished. In Chivas, the Claimant actually ran in front of a vehicle. Both the Defendant’s and the Claimant’s actions were simultaneous.
(18) Recent decisions demonstrate that liability often rests in the key findings surrounding the relative culpability of the parties (AOO v QBE (Australia) Limited (2020) NSWIRADRS 182 at (24)).[1]
[1] [This is not a binding authority and is extracted from an unauthorised report].
The submission continues that it is not relative culpability of the parties generally, but the relative culpability of the parties in relation to the actual acts and failures which resulted in the injury.
(19) The submission continues that although the Claimant was at fault for being on the road at all, this was not the cause of the accident.
(20) If the Tribunal finds that the relevant principle is of relative importance of the acts of the parties in the causing the actual damage (Podrebersek), then the importance of the taxi driver’s actions in causing the injury was primary, and the action of the Claimant, at the time of the collision, of no causal importance. In that scenario, contributory negligence should not be found.
(21) If the Tribunal does not accept the Claimant’s primary submission, submits that the percentage of contributory negligence attributable to the Claimant is in the range of 10% - 20%. In the split seconds before the collision, the Claimants action could not have reduced the actual risk of injury in any significant way whereas the driver’s action had that potential to completely avoid the accident.
Supplementary Submissions of the Claimant 9 December 2022
31. Counsel for the Claimant prepared Supplementary Submissions of 9 December 2022 after Mr Keramidas had a view of the scene of the accident and reported on 16 November 2022.
32. I briefly summarise the Submissions by reference to the paragraph numbers:
(5) The critical difference between the two experts was that Mr Keramidas does not accept that the Insured driver was driving in excess of 50 km/h but accepted that his original opinion as to the speed of the Insured vehicle should be raised to 47 km/h, accepting the nominated point of impact of Ms Viafale.
(6)The view did not inform Mr Keramidas’ opinion on visibility as he stated at page 18:
“…In any event, the… author did not use Police photographs to excess the extent of visibility, but rather research relating to contrast, headlight mapping, and pattern as part of the night-time recognition analysis (which) was outlined in the… primary report…”
(7)Mr Keramidas did not rely on primary facts but, rather, on research papers.
(8)Refers to the requirement for satisfaction of criteria under s 79 of the Evidence Act. Refers to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and later opinions in relation to satisfaction of criteria in the Section, expressed in cases such as Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354.
Admissibility of expert opinion depends on proper disclosures of the factual basis of the opinion, and the assumptions must be proved in some other way, so the Court can be satisfied that the facts, on which the opinion is based, form a proper foundation for it.
(9)One of the key issues is whether an opinion, based simply on an examination of Police material and/or photographs taken after an accident can form a proper basis for expert opinion.
(10)The actual factual basis of Mr Booth’s Report stemmed from a view of the scene accompanied by the lay witness, while the Defendant’s expert attempted to repair, by way of a Supplementary Report, the omission to actually take the scene of the accident into account, by way of a view. The effect of the Second Report will be something like trying to “pull yourself up by the bootstraps” and may have little effect in terms of weight.
(12)Mr McKenzie criticises Mr Keramidas’ analysis. What is lacking is why the driver in front of the Insured vehicle could swerve and easily avoid the impact with the Claimant, when the Insured driver was not able to take evasive action.
(13)Submission suggests that the explanation is that the Insured driver was travelling in excess of the speed limit and could not stop or take evasive action in time.
33. The submission concludes by making a correction to the prior submission of 7 October 2021 paragraphs [12] and [16]. He submits that the test for causation in relation to contributory negligence is a “common sense” test in March v Stramare(E & MH) Pty Ltd (1991) 171 CLR 506. Finally, the onus remains on the Insurer.
LEGAL FRAMEWORK
The Legislation
34. The relevant legislation dealing with the duty of care and contributory negligence is set out in the Civil Liability Act 2002:
1. Section 5R of the Civil Liability Act 2002 provides:
‘5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time’.
2. Section 5S of the Civil Liability Act 2002 provides:
‘5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.’
35. Section 4.17(3) of MAIA provides that if a finding of contributory negligence is made, damages are to be reduced by such a percentage as is just and equitable in the circumstances of the case.
The Case Law
36. The leading authority in respect of causation is March v Stramare(E & MH) Pty Ltd (1991) 171 CLR 506. It is sufficient to refer to what Mason CJ discussed at [16] – [18]:
"[16]The law’s recognition that concurrent or successive tortious acts may each amount to a cause of the injuries sustained by the Plaintiff is reflected by the proposition that it is for the Plaintiff to establish that his or her injuries are “caused or materially contributed to” by the Defendant’s wrongful conduct… Generally speaking, causal connection is established if it appears that the Plaintiff would not have sustained his or her injuries had the Defendant not been negligent… Causation is a question of fact…”
"[17]The common law tradition is that what was the cause of the particular occurrence is a question of fact which “must be determined by applying common sense to the facts of each particular case” … That proposition is supported by a long line of authority… It is also supported by this Court’s decision in Fitzgerald v Penn (1954) 91 CLR 268…”
"[18]It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact. And, prior to the introduction of the legislation providing for apportionment of liability, the need to identify what was the “effective cause” of the relevant damage is reinforced the notion that a question of causation is one of fact and, as such, to be resolved by the application of common sense…”
37. In Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34, Gibbs CJ, Mason, Wilson, Brennan, and Deanne JJ set down the principles applicable to apportionment, in a decision which remains good law almost forty years later.
38. The Court held at [8] that a finding on a question of apportionment is a finding upon a question:
"[8]Not of principle or of positive findings of fact or law, but of proportion of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinions by different minds.”
39. The Court continued:
"[10]The making of an apportionment as between a Plaintiff and a Defendant of their respective shares in the responsibility for damages involves a comparison, both of culpability i.e., of the degree of the 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. The significance of the various elements involved in such an examination will vary from case to case...”
40. In Manley v Alexander(2005) HCA 79, the High Court considered an Appeal concerning a person who was struck by a vehicle. At the time heavily intoxicated, he had been lying on the roadway. Gummow, Kirby, Hayne JJ held:
"[11]No doubt the Appellant’s attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested he might act in some way that would require the Appellant to respond. By recognising one possible source of danger, does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on, or near the roadway that may present a source of danger. And much more often that not, that will require simultaneous attention to, and consideration of, a number of different features of what is already or may later, come to be, ahead of the vehicles.”
41. The Court continued:
"[12]It may readily be accepted that the possibility that someone would be found lying on a roadway… at 4 am, is properly to be described as 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…”
42. The majority continued:
"[13]When driving at night, the driver must take account of how well the road is illuminated; both by the vehicle’s lights and by any street or other lighting. In the present case there was a street light close to where the respondent lay on the road. Its light illuminated the area… it is important to remember that the Respondent was wearing dark clothing and lying down… The contour of the road gave the Appellant an uninterrupted view of the road for a distance considerably greater than the light cast of his low beam headlights. The light cast by those headlights extended about sixty metres ahead of his vehicle. The Respondent, even clad in dark clothing and lying parallel to the direction of travel, could have been seen as some form of obstruction to be avoided, at least by the time the headlight beams illuminated where he was. But the Appellant did not see him...”
43. The Court of Appeal considered the principle articulated by the majority in the High Court of Australia in Manley in Egan v Mangarelli [2013] NSWCA 413 at [148], where Barrett JA said:
"[148]The application of the general statement of principle at [11] of Manley is dependent on the facts of the particular case. What is required is “reasonable attention” to what is happening on and near the roadway. Relevantly, on the facts of Manley it required attention to what lay ahead of Defendant’s vehicular path…”
"[149]Furthermore, Manley does not require guesswork on the part of the driver. Reasonable attention to what is happening on and near the roadway requires a factual matrix against which the relevant standard of care can be applied...”
Consideration
44. In arriving at the following findings of fact on the balance of probabilities, I have taken into consideration the principles articulated in the New South Wales Court of Appeal decision Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20.
45. McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
"[16]for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’…”
46. McCallum JA continued:
"[17]McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches…”
47. Her Honour referred at [17] to what Hodgson JA wrote extra-curially:
"[17]… the two approaches could be combined … if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’...”
Findings of fact
48. I find the following facts as established:
i.The accident took place at about 12:17 am on 6 July 2019.
ii.The Insured vehicle collided with the Claimant, who was on the roadway in a kneeling or crouching position but trying to stand up.
iii.The Claimant sustained serious head injuries.
iv.The Claimant has no recollection of the accident.
v.The accident took place on a part of the flat, straight road, opposite a park.
vi.Maxine Viafale, the Claimant’s fiancée, had stopped her vehicle on the opposite side of the road. The Claimant had told her that he had an urgent need to urinate.
vii.While the Claimant was urinating, Maxine Viafale chose to do a U-turn with her vehicle facing in the opposite direction, that is, in the direction from which the insured vehicle was coming.
viii.The net result of Maxine Viafale turning her vehicle, was that the Claimant then had to cross the road to return to the car.
ix.The was a 50 km/h speed limit.
x.The driver of another vehicle, one Lele Alofa, told the Insurer’s investigator, Mick Robinson, as recorded in a statement of July 2022, that at about 12:15 am on 6 July 2019, he was driving a red Toyota Yaris. There was hardly any traffic on the road. He was driving west along Shepherd Street, at about 50 km/h, when he saw a pedestrian laying in the middle of the road in his lane. He slowed down and swerved to avoid. He says that he didn’t see him until he was about 5 metres away and had to act quickly to avoid a collision.
xi.He said he was concerned for the pedestrian, thinking he might be hit by another car. He turned his vehicle. There was not much lighting in the area but there were a few streetlights. He continued that just after he turned around, he saw a taxi coming down Shepherd Street in a Westerly direction. He saw the pedestrian trying to get up. The pedestrian had two feet on the ground and his body was hunched forward.
xii.He continued that he then saw the pedestrian hit by the taxi, the impact causing him to be thrown three or four metres.
xiii.The stationary vehicle of Maxine Viafale, that is, the Nissan Navara, was probably displaying its headlights.
xiv.The Insured taxi driver told the Insurer’s investigator, on 10 December 2019, that the Claimant was standing on the road, but that he [the driver] had not seen him.
xv.Further, the Insured driver told the investigator that he estimated his speed, at the time of the accident, at around 40-45 km/h.
xvi.The Insured driver further told the investigator that, at the time of the accident, it was not dark and there were streetlights.
xvii.Although Maxine Viafale, when interviewed by the Insurer’s investigator, told him that she could not recall if she had left the headlights on her vehicle, they probably were on.
xviii.There is a conflict in the expert opinion. Mr Booth’s central conclusions were that:
(9.1)The speed of the taxi was most likely between 55 and 60 km/h.
(9.2)The taxi driver had sufficient time to react and commence braking before he hit the Claimant.
(9.3)Taking into account that Mr Alofa saw and avoided the Claimant, at a speed of 50 km/h, in identical road conditions, if the insured taxi driver had been travelling at 50 km/h, and seen the Claimant, he could have also taken evasive action.
xix.Mr Keramidas, in his Supplementary Report, was of the opinion that the effectiveness of the street lights was minimal as they were set for route guidance and intersection detection only and had virtually no effect on illuminating the area where the incident took place.
xx.Specifically, Mr Keramidas revised his conclusion and said that the conditions and available street lighting did not provide any aid to the earlier detection of the Claimant lying on the road.
xxi.A review of Mr Booth’s Report did not cause Mr Keramidas to alter his opinion.
xxii.On the balance of probabilities, at the time of the accident, and for some period before, the Claimant was not, in fact, lying on the road, but attempting to get up. This is a material error on the part of Mr Keramidas.
xxiii.Exercising my common sense, taking all the photographs into account, together with the fact that there was some street lighting in the area of the collision, notwithstanding that the Claimant was wearing dark clothes, had the Insured driver been keeping a proper lookout, he would, on the balance of probabilities, have seen the Claimant in sufficient time to take some evasive action, just as Mr Alofa had done.
xxiv.As Mr Booth opined, the Insured driver had been driving the taxi for nine hours and, as a matter of common sense, would not have been as alert as earlier in his shift. He continued that, on the balance of probabilities, (and I agree) the collision was as a result of the reduction in alertness, the Insured driver’s failure to keep as good a lookout as he should have done in the circumstances, and his speed, which, in fact, was somewhat faster than the speed he alleged to the investigator, and more likely at the speed estimated by Mr Booth, whose opinion I accept as more likely to be accurate as to speed.
What apportionment is just and equitable in the circumstances?
49. There is no doubt that the Claimant was very intoxicated, and in terms of factual causation, he would not have been injured had he not been intoxicated. He was being driven home by Maxine Viafale, and it was only as a result of her decision to do a U-turn, that the Claimant had to walk across the road, and was thereby exposed to the risks connected to his state of intoxication. He had, on the balance of probabilities, no prior intention to cross the road.
50. Applying the principle in Manley v Alexander, the Insured driver should have been driving at such speed, with such a lookout and concentration, and with such reasonable care, that he might know what is happening in the vicinity and be able to take reasonable steps to react to those events. The driver should have recognised that he would not have the same reaction time as when he had not been driving for so many hours and, if the Insured driver believed that there was insufficient lighting, he should have adjusted his speed accordingly, taking that into account as well.
51. If the Insured driver had acted in accordance with the reasonable care discussed by the majority in Manley v Alexander, then he probably would have been able to take steps to avoid the collision.
52. Unlike Turkmani – see page 13 – the shortfall in the standard of vigilance of the Insured driver was significant. He was driving faster than he should have been, given the visibility and given that he should have appreciated (see Mr Booth) that after a long shift, and in the middle of the night, he would not, as a matter of common sense, be as alert as earlier in his shift.
53. The Claimant, on the other hand, was to have been driven home, and it was only as a result of Maxine Viafale doing a U-turn that the Claimant was forced (effectively) to cross the road when he was in a state of intoxication and had reduced steadiness on his feet and reduced capacity to think rationally – see Dr Perl.
54. Nevertheless, when a person gets himself so hopelessly intoxicated, that he will not be able to walk on a footpath safely, let alone cross a road, then he has taken an action which potentially puts one in harms way, whatever that harm may be, and it is not necessary, for the purpose of this decision, to say that the Claimant had to take into account the specific harm of being injured while crossing a road.
55. I consider that it is just and equitable in all the circumstances that the apportionment be as to 45% to the Claimant and 55% to the Insured driver.
Legal costs and disbursements
Legal costs
56. I assess three conferences at the ordinary rate of $321.00 per hour, giving a total of 963.00.
Regulated disbursements
57. I determine regulated disbursements as follows plus GST:
i.Dr Giblin 23 January 2020: $ 1,710.00
ii.Dr O’Sullivan 6 July 2020: $ 1,710.00
iii.Dr O’Sullivan 7 May 2021: not pressed.
iv.Dr McGroder 6 May 2021: $ 1,710.00
Total unregulated disbursements $ 5,130.00
Unregulated disbursements
58. I determine unregulated disbursements as follows plus GST:
v.Trevor Booth 26 October 2022: $ 8,280.00
vi.NSW Police Report: $ 93.50.
vii.Westmead Hospital Clinical Notes: $ 330.45.
viii.Mount Druitt Clinical Notes: $ 110.10.
ix.Dr Gordon Dandie Clinical Notes: $ 77.00.
Total unregulated disbursements $ 8,891.05
59. Costs as determined pursuant to the Costs Calculator Summary are $76,860.36.
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