Vanoostwaard v Allianz Australia Insurance Limited
[2024] NSWPIC 463
•23 August 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Vanoostwaard v Allianz Australia Insurance Limited [2024] NSWPIC 463 |
| CLAIMANT: | Shane Vanoostwaard |
| INSURER: | Allianz Australia Insurance Limited |
| SENIOR MEMBER: | Brett Williams |
| DATE OF DECISION: | 23 August 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether insurer entitled to reduce statutory benefits on account of contributory negligence of the claimant in accordance with section 3.38 of the MAI Act; accident occurred as motorcycle and ute approached a bend in narrow unmarked road from opposite directions; insurer determined that the claimant’s contributory negligence was 50%; Held – other driver cut the corner and was travelling at a speed greater than was reasonable in the circumstances; accident caused by the failure of the other driver to exercise reasonable care; no failure to exercise reasonable care on the part of the claimant; insurer not entitled to reduce statutory benefits. |
| DETERMINATIONS MADE: | CERTIFICATE 1. The insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident on 15 July 2023 in accordance with s 3.38 of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
Shane Vanoostwaard was injured in a motor accident on River Road, Lower Portland, on
15 July 2023 (accident). Mr Vanoostwaard subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer), the insurer of the other vehicle involved in the accident.
On 7 August 2023 the insurer accepted liability for the claim. On 24 October 2023 the insurer determined that, for the purposes of ss 3.11 and 3.28, the accident was caused mostly by the fault of Mr Vanoostwaard. Liability for the claim was denied after 52 weeks. A review of that decision was sought by Mr Vanoostwaard. On 13 November 2023 an internal reviewer “overturned” the insurer’s liability decision and, in substitution of that decision, found that
Mr Vanoostwaard’s contributory negligence was 50%.
The effect of the insurer’s decision is that the weekly payments of statutory benefits payable to Mr Vanoostwaard in respect of the accident are to be reduced by 50% on account of his contributory negligence: s 3.38.
Mr Vanoostwaard disputes the finding of contributory negligence, and commenced these proceedings. The dispute is a miscellaneous claims assessment matter: Sch 2 cl3(g) MAI Act.
At a preliminary conference held on 13 June 2024 the parties were informed that I intended to determine the dispute on the papers. There was no objection to me proceeding in this way.
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that the dispute can be determined on the papers. I am satisfied that sufficient information is available in connection with the dispute to allow me to determine it without holding a formal hearing.
LEGAL FRAMEWORK
The assessment of contributory negligence is undertaken in accordance with the requirements of s 3.38 of the MAI Act which relevantly provides:
“3.38 Reduction of weekly statutory benefits after 12 months for contributory negligence
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.
(2) A finding of contributory negligence must be made in the following cases—
(a)- (e) …
(f)in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—
(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or
(b) by such percentage as the parties agree, or
(c) in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.
(4) The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.
(5) This section does not exclude any other ground on which a finding of contributory negligence may be made.
(6) …”
The enacted law relevantly is the Law Reform (Miscellaneous Provisions) Act1965 (NSW) (LR Act), s 9 and the Civil Liability Act 2002 (NSW) (CL Act), ss 5R and 5S. Section 5R of the CL Act, which by s 3B(2)(a) applies to motor accidents, provides that 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. For that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and the matter is to be determined on the basis of what that person knew or ought to have known at the time: s 5R CL Act.
The general principles to be applied in determining whether the claimant was contributorily negligent are those in s 5B CL Act.
An allegation of contributory negligence is to be assessed with reference to a risk of harm to the claimant against which it is said they should have taken precautions: Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [15].
The onus rests on the insurer to establish contributory negligence, including the facts said to demonstrate contributory negligence: Cheng v Geussens [2014] NSWCA 113 Basten JA at [4] (Barrett and Ward JJA agreeing).
EVIDENCE
Directions were made for provision by the insurer of a joint agreed bundle that contained all material relied on by the parties in the dispute. A joint bundle was subsequently lodged by the insurer. On 16 August 2024 Mr Vanoostwaard confirmed in writing to the Personal Injury Commission that the material he relied on was included in the joint bundle.
All the material contained in the joint bundle has been considered.
Mr Vanoostwaard
An Application for personal injury benefits (claim form) completed by Mr Vanoostwaard on
17 July 2023 contains the following description of the accident:
“I was riding my bike doing 30km/h around a blind left hand corner when a 4WD came from the opposite direction & was cutting the corner & was way over on my side of the road. I sworved [sic] left a bit but only had a split second & I think she swerved left also. I was able to avoid a head on but my handlebars hit the side of her 4WD knocking me off my bike. She admitted being on the wrong side & cutting the corner and said she wasn’t expecting anything to be … around the bend.”
Bodycam footage of Mr Vanoostwaard reporting the accident to police on 17 July 2024 has been considered. Mr Vanoostwaard told police he had been travelling west on River Road on 15 July 2023. He states that at River Road, Cliftonville, he was:
“going round a left hand bend. It was a blind bend. I was doing about 30km/h. On my side of the road-well over on my side of the road and a four wheel drive came in the other direction, and she was on my side of the road. I tried to go left a little bit to avoid her, but there was only a split second was all I had. And I think she’s gone a little bit left her way, that was to avoid a head-on… but I was unable to avoid her car and my handle bars clipped her tool box on her tray and then that knocked me into the back of her tray…my handle bars crossed over and I crashed the bike.”
Mr Vanoostwaard told police that he had been in hospital, had been released that day, and that “this was the first chance” he had to report the accident. He described the road as being tarred, and said that it was a shared road, with no middle lane, one and a half car lengths wide. He stated that while two cars could pass each other, “going around a blind bend like that you’ve got to stick to your side of the road in case there is a car coming. She didn’t. She was on my side of the road”.
Mr Vanoostwaard states that Ms Holman admitted “cutting the corner”, and that she “didn’t think anything was going to be coming the other way” because she hadn’t passed any cars.
Mr Vanoostwaard has provided a signed statement dated 10 August 2023. The statement is in similar, but not identical, terms to his unsigned statement taken by an investigator dated
1 August 2023. For present purposes it is sufficient to record relevant aspects of the signed statement. Neither party has argued that the difference was of significance. Where there is a difference between the signed statement and unsigned statement, I prefer the signed statement.
Mr Vanoostwaard described riding his motorcycle together with Mr Day in a westerly direction on River Road. He states that he was travelling at a speed of 30kmph. Weather conditions were fine and the road was dry. He states:
“I was riding 50 meters in front of [Mr Day]. The road was narrow and about one and a half lanes wide to two lanes in sections and there were no line markings. I was riding on the left-hand side of the roadway about 50 centimetres to 100 centimetres from the inside edge of the road.
I approached a left-hand bend. I could not see the roadway on the other side of the bend due to the bank on the left-hand side of the roadway. I entered the left-hand bend travelling at 30km/h and I was almost at the apex of the bend, and I saw a white 4WD coming in the opposite direction. At this time my motorcycle was about 5 to 10 meters away from the 4WD. I instantly thought to myself that the vehicle was on my side of the roadway, and it appeared to be travelling quick. The vehicle was in my opinion well over the centre of the roadway and more on my side of the roadway than her side. There was a considerable gap between her left-hand wheels and the left side of the outer edge of the roadway, between 1.5 and 2 meters.
When I saw the vehicle, I tried to take evasive action as to not have a head on and I have leaned to my left and tried to steer left to miss the vehicle. I believe that she also veered left, this is why we didn’t connect head on. I was able to miss the front of the vehicle but unable to avoid an impact and my handlebars connected with the side of the toolbox on the tray of the 4WD. As a result, my arm has connected with the handle of her toolbox and my body…
At the time of the accident, I was in third gear. I was not accelerating or decelerating at the time of the accident. The motorcycle does have traction control and it was in the on setting. I was not breaking at the time of the accident. I was on a slight lean angle to my left.”
Mr Vanoostwaard states that Ms Holman agreed that she had cut the corner, and that she apologised to him.
Mr Vanoostwaard prepared a diagram dated 1 August 2023. The diagram depicts the position of the two vehicles prior to the collision. Ms Holman’s vehicle is positioned in the middle of the road, occupying both sides of the road. Mr Vanoostwaard’s motorcycle is located to the left of the road in his direction of travel.
Ms Holman
Bodycam footage[1] of Ms Holman providing her account of the accident to police on
26 July 2023 has been considered. Relevantly, Ms Holman can be heard telling police that she was:
“going around the corner. He’s come on to my side of the road. He’s hit the canopy and the mud guard.”
[1] Produced to the Commission under direction by NSW Police.
Ms Holman refers to having a “few witnesses” to the accident, who “all said he was on the wrong side of the road”. She described the roads in the area as “terrible”, and said “we know to stick to our side [of the road] because of things like this”.
Ms Holman provided a statement dated 1 August 2023. She states that she is the holder of a Class C P2 driver license, and has held that license for three years. The vehicle she was driving at the time of the accident was a Toyota Hilux utility. She states that the speed limit at the location of the accident is 60kmph, and that there are no warning signs. She described the lanes of the roadway as being “a lot narrower than a normal width”.
Ms Holman provided the following version of the accident:
“[19] About 11.45am, I was travelling in an easterly direction on River Road at Cliftonville at a speed of 45 kilometres per hour. At the time the traffic flow was light in the same direction I was travelling and light in the other direction. At the time it was dry and the weather conditions were fine and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did have the car radio on, and I was not distracted by anything. I was the only occupant in my vehicle. I had my dog in the front passenger seat.
[20] I was looking directly ahead and there were no vehicles directly in front of behind my vehicle. I was wholly within my lane. I approached a sharp right-hand bend in the roadway, and I was still travelling about 45 kilometres an hour. I then commenced to go around the bend and my vehicle was to the left-hand side of the roadway with my wheels on the nearside of my vehicle were just off the edge of the roadway. I was almost out of the bend and I then saw a motorcycle coming in the other direction. When I first saw the motorcycle, I estimate that my vehicle was about 20 metres from it. The motorcycle was in the middle of the roadway. It was travelling faster than my vehicle was travelling.
[21] When I saw the motorcycle I then steered to my left and I saw the motorcycle then appear to steer to its right and the handle bars of the motorcycle then impacted with the rear offside of the tray of my utility. I then braked and I stopped. The rider came off the motorcycle and ended up on the grass on the southern side of the roadway. The motorcycle came to rest near the rider.
Ms Holman states that she spoke to Mr Vanoostwaard after the accident. She states that as a result of the accident her vehicle sustained damage to the tray, and was driven from the scene. The motorcycle sustained no major damage. Ms Holman confirms that she was spoken to by police on the 26 July 2023, and that police had not taken any action against her. She states that the cause of the accident was the motorcycle impacting with her vehicle.
The diagram prepared by Ms Holman dated 1 August 2023 has been considered. The diagram depicts Ms Holman’s vehicle on the far left hand side of the road in her direction of travel, close to the edge of the roadway. Mr Vanoostwaard’s motorcycle is shown to be in the middle of the roadway, facing towards the rear right hand side of her vehicle.
Mr Day
Mr Day has provided a signed undated statement. He states that on the day of the accident he had been travelling on a motorcycle with Mr Vanoostwaard. He states:
“We were travelling in a westerly direction. Shane riding in front of me. As we were approaching a left-hand bend, I witnessed Shane hug the corner, approximately 1 meter off the embankment. I lost sight of him briefly due to the angle of the corner. As I entered the corner, I noticed a 4wd ute stopped in the middle of the road. Shane was up against the side of embankment with the bike partially on top of him. I immediately stopped and helped lift the bike off him. At this time, the driver of the 4wd was continuously apologizing to Shane. Shane stated to the driver of the 4wd ‘you cut the corner!’ To which she replied ‘I know, I’m so sorry’ numerous times…”
Mr Day states that, from what he witnessed, “it was clear that the driver of the 4wd had crossed over on to the wrong side of the road whilst going around the bend and hitting Shane off his bike…”.
Other evidence
The investigator’s report includes a number of photographs taken at the scene after the accident. Photograph 1 shows the road way, the corner in question, the surrounding terrain, Ms Holman’s vehicle and Mr Vanoostwaard’s motorcycle.
Photograph 2 depicts the motorcycle, and photograph 3 depicts Ms Holman’s vehicle. Photographs 4 depicts damage to the rear right side of Ms Holman’s vehicle.
There are photographs from Google Street View dated April 2023 that depict the corner from both Mr Vanoostwaard and Ms Holman’s direction of travel. There are no speed advisory signs depicted in the photographs of the corner. I am satisfied that the photographs depict the accident location at the time it occurred. Neither party has argued to the contrary.
There are also photographs of the roadway and surrounds “a few corners before” the accident scene, which have been provided by Mr Vanoostwaard. Those photographs have also been sourced from Google Street View and are dated April 2023. In Mr Vanoostwaard’s direction of travel there is a sign that indicates a left hand bend in the road, with a speed advisory of 35kmph.[2] In Ms Holman’s direction of travel, there is similar signage, again with a speed advisory of 35kmph.[3] A photograph of the next corner in Ms Holman’s direction of travel depicts a speed advisory sign of 15kmph.[4] There is also a photograph that depicts a corner approximately 1km from the accident scene in Ms Holman’s direction of travel with a speed advisory sign of 35kmph.[5] The final photograph in the joint bundle depicts the roadway in Ms Holman’s direction approximately 50m from the corner at which the accident occurred.
[2] Joint bundle page 166.
[3] Joint bundle page 167.
[4] Joint bundle page 168.
[5] Joint bundle page 169.
A police COPS report contains details of the time, date, location, drivers and vehicles involved in the accident. The report records that: the accident was reported to police on
17 July 2023; the road alignment at the scene was “curved”; the road surface was sealed and dry, and that the speed limit was 50kmph. The report contains the following summary of the accident:
“At 10:45 saturday 15/7/2023 D1[6] was heading east on River road and D2[7] was heading west on River road. On a blind corner approximately 5km west of Cliftonville road both vehicles approached the bend at the same time. D2 was turning left around the corner driving on the left side of the road, D1 was turning right but was in the middle of the road. At the peak of the turn both vehicles attempted to turn away from each other to avoid a collision however the tray of D1 stuck out too far for D2 to avoid and was hit causing him to lose control and fall off the motorbike.”[8]
[6] Ms Holman.
[7] Mr Vanoostwaard.
[8] The same version is contained in a COPS report dated 15 February 2024, produced to the Commission under direction by NSW Police.
The report records that the scene was not visited by police.
SUBMISSIONS
Insurer’s submissions
The insurer relies on written submissions dated 15 January 2024 and 28 June 2024. The insurer submits that:
(a) the insured vehicle was positioned as far as reasonably practicable to the left-hand side of the roadway, noting her evidence that her nearside wheels were just off the edge of the roadway;
(b) at the time of the collision, both Mr Vanoostwaard and Ms Holman were travelling below the speed limit and there is no suggestion that either party was travelling in excess of the speed limit;
(c) Ms Holman was driving in an easterly direction on River Road at approximately 45kmph. She approached a sharp right-hand bend and as she commenced to navigate the bend, her vehicle was to the left-hand side of the roadway with her wheels on the nearside, just off the edge of the roadway. She had almost navigated the bend when she observed a motorbike coming from the opposite direction. She estimated she was 20m from the motorbike when she first saw it and the motorbike was situated in the middle of the roadway and travelling faster than her vehicle;
(d) upon seeing the motorbike, Ms Holman steered to the left and observed the motorbike steering to the right, with the handlebars impacting the rear offside of the tray, and
(e) both drivers, upon observing the presence of the other, took evasive action in an attempt to avoid the collision. Ms Holman steered her vehicle to the left, braked and stop. Mr Vanoostwaard attempted to steer to the left, however, was unable to avoid the collision and impacted the rear of the insured vehicle.
When Ms Holman first observed the claimant, she stated he was “in the middle of the roadway”. Noting her evidence that her wheels were just off the edge of the roadway, the insurer submits Ms Holman was travelling to the far left of the roadway and, when she observed the claimant, took the necessary avoidance measures expected of her in the circumstances.
The insurer submits that while Mr Day observed Mr Vanoostwaard he was travelling approximately 1m off the embankment, he did not actually observe the accident as he “lost sight of him briefly due to the angle of the corner”.
The insurer argues that even in circumstances where there was a finding that Ms Holman was not driving as close the left hand side of the roadway as was possible, the accident was not a head on collision. Accordingly, it is submitted that Ms Holman’s vehicle was not occupying the entirety of the roadway and, had Mr Vanoostwaard been travelling as close to the left hand side of the roadway as possible, the accident would not have occurred.
Furthermore, it is argued that Mr Vanoostwaard contributed to his injuries by failing to maintain control of his motorcycle, slowing and veering to the left, rather than colliding into the tray of Ms Holman’s vehicle.
The insurer submits the fact the accident was not a head-on collision indicates Ms Holman took evasive action to avoid the collision whereas Mr Vanoostwaard was unable to do so and consequently contributed to his injuries.
The insurer disputes Mr Vanoostwaard’s assertion that the accident was caused 100% by the fault of Ms Holman: she was travelling below the speed limit and took evasive action and swerved to the left to avoid the collision before braking and stopping. Noting that the accident occurred on a blind corner of a narrow roadway, that Mr Vanoostwaard impacted with the tray of Ms Holman’s vehicle and that both drivers, as road users, had an onus to take care for their own safety, the insurer submits that the finding of 50% contributory negligence is the correct determination and ought to be upheld.
Claimant’s submissions
Mr Vanoostwaard’s case is that Ms Holman is 100% at fault for the accident, and that there was no fault on his part. He argues that:
(a) Ms Holman travelled around the corner at between 50-60kmph, above the 30kmph recommended speed;
(b) Ms Holman’s vehicle was “well away” from her left hand side of the road and about 1m from her right side;
(c) Ms Holman admitted at the scene that she cut the corner, and apologised a number of times for doing so;
(d) his motorcycle was 50cm – 1m from the inside edge of the road, as close as safely possible to the edge of the road to avoid pot hole on the side of the road;
(e) there was nothing he could do to avoid the accident;
(f) Ms Holman failed to take appropriate action on a blind corner, and
(g) he had about 2 seconds to avoid the impact. His ability to change the angle quickly was limited. It was not possible to turn at the same speed as a car. This is why he avoided hitting Ms Holman’s vehicle head on. He could not, however, avoid the back of her ute.
FACTUAL FINDINGS
At approximately 11.45am on 15 July 2023 Mr Vanoostwaard was riding his motorcycle on River Road, Cliftonville in a generally westerly direction. Mr Day was riding his motorcycle approximately 50m behind him. At the same time, Ms Holman was driving her vehicle, a Toyota Hilux utility, in an easterly direction on River Road.
There is conflicting evidence about the speed limit on River Road; Ms Holman’s evidence is that it is 60km/h while the Police report records that it was 50km/h. Police did not attend the accident scene. Ms Holman’s evidence is that she was familiar with the stretch of road on which the accident occurred. I accept Ms Holman’s evidence, and find that the speed limit on River Road was 60kmph.
Leading up to the accident scene, the road in both directions contained bends. While the speed limit on River Road was 60kmph, there were speed advisory signs prior to, and after, the bend at which the accident occurred. Those signs advise that a speed of 35kmph is appropriate when entering the bends to which they relate. Both drivers were familiar with the road, and were aware that care was required when driving through bends in the road.
River Road at, and in the vicinity of, the accident scene was narrow and about one and a half lanes wide. The evidence does not allow me to make specific findings in relation to the precise dimensions of the road.
I am conscious that care must be taken when using photographs tendered in evidence in factual inquiries. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed: Taitoko v R [2020] NSWCCA 43 at [81], and Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72 at [42].
The photographs support the evidence of both drivers that the road at the location of the accident is narrow and unmarked. While I have not used the photographs to form an opinion about the precise dimensions of the road they have enabled me to form a general impression of the area.
There were no line markings on the road. The corner at which the accident occurred was a “blind corner”, meaning that drivers approaching the corner from either direction could not see around it.
I accept Mr Vanoostwaard’s evidence that he was riding on the left-hand side of the roadway approximately 50cm to 100cm from the inside edge of the road as he entered the bend at which the accident occurred. His evidence in this regard is supported by the evidence of
Mr Day, evidence that I accept.
I consider it more likely than not that as he proceeded around the bend, Mr Vanoostwaard maintained the same line of travel as observed by Mr Day. I find that as he entered the bend, Mr Vanoostwaard continued to hug the corner, and that his motorcycle was positioned between 50cm to 100cm from the inside edge of the road.
I accept Mr Vanoostwaard’s evidence that he entered the left-hand bend travelling at 30kmph, and was almost at the apex of the bend, when he saw Ms Holmon’s vehicle coming in the opposite direction.
I find that immediately prior to the collision, Ms Holman was travelling at a speed of at least 45kmph.
I do not accept Ms Holman’s evidence that as she commenced to go around the bend her vehicle was to the left-hand side of the roadway with the wheels on the nearside of the vehicle just off the edge of the roadway. I prefer Mr Vanoostwaard’s evidence to that of
Ms Holman with respect to the relative position of the vehicles immediately prior to the collision and at the time of impact. I accept his evidence that Ms Holman’s vehicle was “well over” the centre of the road way and that there was a gap between her left hand wheels and the outer edge of the roadway of between 1.5 and 2 meters.
I find that immediately before the accident Ms Holman’s vehicle was positioned in the middle of the road, and that there was a gap between her left hand wheels and the outer edge of the roadway of between 1.5 and 2 meters. In short, I find that Ms Holman “cut the corner”.
I accept the evidence of both drivers that they each took evasive action to avoid a head-on collision; Mr Vanoostwaard leaned to the left and tried to steer to the left while Ms Holman steered to the left.
The evidence of both Mr Vanoostwaard and Ms Holman, together with the photographic evidence, supports a finding that the handlebars on Mr Vanoostwaard’s motorcycle connected with the right side of the toolbox on the tray of Ms Holman’s vehicle.
CONTRIBUTORY NEGLIGENCE FINDINGS
Given the findings I have made, the exercise of reasonable care by Ms Holman required her to position her vehicle to the left hand side of the roadway as she entered the bend, and to maintain that position as she continued through the bend. I am satisfied that she failed to do so, and that she cut the corner. I find that Ms Holman failed to exercise reasonable care, and that her failure to do so caused the accident.
Ms Holman was travelling in a utility vehicle on a narrow road and on a stretch of roadway that contained a number of bends. While there was no speed advisory sign in the lead up to the bend at which the accident occurred, I find that the exercise of reasonable care required her to reduce her speed to below the 60kmph limit as she entered, and continued through, the bend. In my assessment, the exercise of reasonable care required her to reduce her speed to no more than 35kmph.
Ms Holman knew the road was “terrible” and that blind corners created a risk of collision with vehicles traveling in the opposite direction. I have found that she was traveling at a speed of at least 45kmph when she entered the bend. Her failure to enter the bend at an appropriate speed was causative of the accident; had she been travelling at a safe speed, both drivers would have had more time to react, and the accident may have been avoided. Her failure to exercise reasonable care in this way was also causative of the accident.
On the facts as I have found them, I am not persuaded that the accident was caused by any failure to exercise reasonable care on the part of Mr Vanoostwaard. He was travelling at an appropriate speed, had positioned himself to the left of the road, and continued to hug the corner as he proceeded around the bend. He took reasonable steps to avoid the accident by leaning to his left and attempting to steer left.
I am not satisfied that there was any contributory negligence on Mr Vanoostwaard’s part. Accordingly, the insurer is not entitled to reduce statutory benefits payable to him in respect of the accident in accordance with s 3.38 of the MAI Act.
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