Weber v IAG Limited trading as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Weber v IAG Limited trading as NRMA Insurance [2021] NSWPIC 347
CLAIMANT:	Gregory Weber
INSURER:	IAG Limited trading as NRMA Insurance
MEMBER:	Susan McTegg
DATE OF DECISION:	14 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act); section 5R of the Civil Liability Act 2002; cyclist riding along footpath at 15 kmph when vehicle drove out of driveway colliding with cyclist; claimant not wholly at fault; prudent driver would have considered possibility of cyclist driving across driveway and having regard to poor line of sight failed to take that risk into account or to keep a proper lookout; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; claimant guilty of contributory negligence greater than 61%; section 3.38(2)(d) of the MAI Act required finding of contributory negligence where not wearing helmet when required by law to do so; claimant riding on the footpath in breach of Road Rules 2014; claimant wearing ear buds which impeded his ability to hear the approach of the vehicle; claimant not keeping a proper lookout; claimant not riding with sufficient care where vision impeded by presence of fence and trees; claimant riding on footpath at excessive speed; Held - claimant mostly at fault for the accident; claimant entitled to payment of legal costs assessed at the maximum regulated fee.
DETERMINATIONS MADE:	The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 the motor accident was caused mostly by the fault of the claimant. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the claimant. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,660.16 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

INTRODUCTION

On 31 December 2019 Gregory Gary Weber (the claimant) was riding his bicycle along the grass verge, between the road and the footpath on The River Road, Revesby when a vehicle drove out of a driveway colliding with the clamant as he rode across the driveway.
The claimant sustained a fractured pelvis, injury to the left ankle, left elbow, left arm, left shoulder, left wrist, an aggravation of a pre-existing lower back condition, abrasions and bruises and a psychological injury.
On 14 January 2020 the claimant completed an Application for Personal Injury Benefits in respect of injury sustained in the accident.
On 19 June 2020 NRMA Insurance Limited (the insurer) issued a liability notice accepting liability for payment of statutory benefits after 26 weeks on the basis investigations were continuing.
On 4 February 2021 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis the claimant was wholly at fault for the accident.
On 16 April 2021 an application for an internal review was submitted by the claimant.
In an Internal Review Decision dated 6 May 2021 the insurer confirmed the decision that the claimant was wholly at fault for the accident.
The claimant lodged an application in respect of a Miscellaneous Claims Assessment on 5 February 2021.

JURISDICTION OF THE PERSONAL INJURY COMMISSION

The Personal Injury Commission (the PIC) was established on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020.
I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident clause 14D(3)(b) provides that the Motor Accident Injuries Act 2017 (the MAI Act) Act and the Motor Accident Guidelines (the Guidelines) continue to apply.

DOCUMENTS CONSIDERED

I have had regard to the following documents:
(a)   Application for Personal Injury Benefits dated 14 January 2020;
(b)   liability notice from the insurer dated 19 June 2020;
(c)   liability notice from the insurer dated 4 February 2021;
(d)   letter from P.K. Simpson dated 16 April 2021 enclosing application for internal review;
(e)   Certificate of ‘Determination – Internal Review’ dated 6 May 2021;
(f)    letter from the NSW Police Force dated 15 May 2020 confirming no police report was found;
(g)   report of New South Wales Ambulance Service;
(h)   discharge summary of Prince of Wales Hospital;
(i)    statement of the claimant dated 1 June 2020;
(j)    statement of Colleen Mary Kennedy dated 26 May 2020;
(k)   photographs of the scene of the accident numbered 1 to 9 taken on 26 May 2020;
(l)    photographs of the fence and scene of the accident numbered 1 to 6 taken on 2 October 2020;
(m)     claimant’s submissions undated;
(n)   insurer’s submissions dated 15 July 2021; and
(o)   a photograph marking the position of the collision on the driveway.

THE RELEVANT LAW

12. Section 3.11 of the MAI Act states:

“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.

(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”

Section 3.28 of the MAI Act states:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Section 5R of the Civil Liability Act 2002 (CLA) sets out the principles that apply in determining the question of contributory negligence. Section 5R(2) provides the following:

(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.

THE EVIDENCE

The claimant is 36 years of age.

Application for personal injury benefits

In the Application for Personal Injury benefits the claimant provided the following description of the accident:
“I was riding my bicycle down The River Rd. Traffic was very heavy so I veered off the road & was riding along the grass island between the road & the footpath. As I was passing a driveway, a driver suddenly drove out of the driveway at speed T-boning my bicycle.”

Ambulance report

The Ambulance Report stated:
“C/T 34YOM BESIDE STREET. PT STATES APPROX 1730 WAS RIDING PUSHBIKE WHEN CAR REVERSED FROM DRIVEWAY STRIKING HIS BIKE. DESCRIBES FALLING DIAGONALLY ACROSS CAR. WAS NOT WEARING HELMENT, BUT DENIES STRIKING HEAD, DENIES LOC. STATES DISCUSSED ACCIDENT WITH CAR DRIVER AND NEARBY POUCE OFFICER, ELECTING TO RIDE BIKE HOME. PT STATES RODE BIKE TO TRAIN STATION, CAUGHT TRAIN, BUT FOUND WHEN GETTING OFF THE TRAIN WORSENING HIP PAIN WHEN RAISING LEG, DIFFICULTY AMBULATING. PT OUTSIDE CLOSED MEDICAL CENTRE WHEN CALLED 000.”

Clinical records of Prince of Wales Hospital

The clinical records of Prince of Wales Hospital recorded:
“History of Presenting Illness (from notes)
Cycling at approx 40km/hr
Car reversed out of driveway into him
Car travelling approx 5 km/hr
Hit his left hip, he flipped over handlebars
Landed on shoulder
Nil headstrike
Nil LOC
Not wearing a helmet
Got to feet and mobilised
Rode bike to station and got on train
At Mascot Station ongoing hip pain so called CDA
Pain in left groin and hip
Pain in lower back same as chronic pain
Gravel rash to left shoulder
Nil other injuries
Nil pain elsewhere
Able to mobilise in department
EtOH this morning
Nil other drugs ADT last year
PMHx:
Chronic LBP
Looks well
Able to mobilise with some assistance post analgesia

The claimant’s statements

The claimant provided a statement dated 1 June 2020 to David Hargraves, an investigator engaged by MJM Corporate Risk Services instructed by the insurer.
At the time of the accident the claimant was not working but he was due to commence work with Hargraves Smash Repairs Waterloo as a panel beater on 7 January 2020.
The claimant confirmed at the time of the accident it was daylight, the weather was fine and the roadway dry. He confirmed he had not consumed any alcohol or drugs at the time of the accident.
The accident occurred at 5.30 pm on 31 December 2019 outside No. 74, The River Road, Revesby. The claimant described the area: “This is a straight stretch of road with two lanes in each direction, there is a downhill gradient where the accident occurred.”
The claimant’s statement includes the following paragraphs:
“23.I had been at a friend’s house at Panania and was riding from Revesby to McDonalds and then back to the station to go home. I was riding down The River Road and had just past [sic] Beaconsfield Street, there was a lot of traffic because it was New Year’s Eve and the lights had just gone green behind me.
24.I moved onto the nature strip around number 78 to let the cars go past me. There were people on the footpath and I was going to go around a sign post and then come back out on to the road after the line of traffic had gone. I was riding on the grassed section between the road and the footpath.
25.As I was crossing the driveway of number 74 I saw the nose of the car come from my left hand side. There was a colour bond fence and trees so I couldn’t see the car until I was half way across the driveway. The front of the car hit my left leg right where the pedals are on the middle of my bike.
26.I was lifted up in the air off my bike and continued over the bonnet and landed on the nature strip about 4 meters further down The River Road in the direction I was travelling.
27.A woman got out of the driver’s seat and a man and another woman also got out of the car and came over to me, they tried to move me and get me up. I asked them not to, I asked them to let me get my breathe and then I would try and get up. I laid there for about 2-3 minutes and I caught my breathe and was able to stand up. [sic] I was sore but in shock, I thought that I was ok at the time.
28.I asked the people for their details in case I needed to go to hospital, I said that I didn’t need an ambulance at the time but I may need help later. The women who was driving said that she wanted to check with the police that were up the road whether she had to give me her details because I wasn’t on the road and I was riding a bike.
29.There was a highway patrol car that stopped and spoke with us. He told the woman that she needed to give me her licence and registration. I took a photo of her licence but the police didn’t take a report. I told the police that I was going to ride down and get something to eat and then go home.
30.I got onto my bike slowly and rolled down the hill to McDonalds. After McDonalds I was able to make it back to Revesby train station in considerable pain. I was far away from home and I wanted to try and get closer to home before going to a hospital. My bike was with me and I didn’t have a chain to chain it up and I didn’t want to leave it out there.
31.I got on the train and I got off a Mascot train station. I was using my bike as a crutch to get up the lift. I sat on the bike and pedalled with one foot, I rolled down the hill and went around the corner and was in so much pain I fell off the bike. I ended up sitting on the stairs outside the medical practice there and I called an ambulance.
The claimant also provided a statement dated 2 June 2021 in support of his application. That statement includes the following paragraphs:
“6.I decided to drive off the road way onto the nature strip beside the footpath in order to allow the traffic to pass me. I left the roadway going up the driveway of Number 78 and riding onto the grass nature strip. When I left the roadway there were some pedestrians on the footpath.
7.I was riding on the grass so I had to reduce my speed significantly from my speed whilst on the road. On the grass I was doing about 15 kph.
8.As I approached Number 74, there was a colour bond fence beyond the driveway of Number 74 at the boundary with Number 76.
9.As I got to Number 74 I drove off the grass onto the concrete driveway of Number 74. As I did this a car came out of the driveway of Number 74 striking me. I was hit by the centre of the front of the car, over the number plate.
10.The car was doing about 10 kph and did not brake before striking me. There was nothing I could do to avoid being struck. As a result of the collision, I was thrown over the bonnet of the car and I landed on the footpath beside the car. I was struck by the car on my left side and after I was thrown in the air, I landed on my left side.
11.After the collision the driver of the vehicle came over to me. She said “I didn’t see you”. She then asked me about my injuries.”
A statement was provided by Colleen Mary Kennedy (the insured driver) to the investigator on 26 May 2020. She was the driver of the blue Mitsubishi Magna sedan involved in the accident. Ms Kennedy was travelling with her husband and was wearing a seatbelt at the time of the accident.
The statement of Ms Kennedy includes the following paragraphs:
“27. I recall I was leaving my driveway to go out with my husband. I drove out towards The River Road slowly. I was looking to the right to see if there was any traffic. I was still moving. I was very slow. I stopped at the end of the driveway to check and there was nothing there and so I rolled forward and then out of nowhere there was a bike, it was a blur because I was in shock. I think I saw the bike was across the front of my car, it hit across the front of my bonnet.
28. My husband and I got out of the car and the rider was over to the left hand side of my car on the footpath and his bike was to the left of him. I would describe the rider as male, Aussie, tall and slim, about 40 years old. He was wearing shorts and a singlet. He didn’t have a helmet on and he had air pods in his ears.
29.I asked him if he was ok. I could see that there was a graze on his shoulder but that was it. I was in shock, I can’t recall the conversation, he was sitting down. There was a policeman a few doors up that had pulled someone over and I went up to talk to him and asked him to come down.
30.The police came down and spoke to the rider. I was there when he spoke to him and he told him he could have fined him for not wearing a helmet but he let him go. By this stage I think the rider was standing up.
31.My daughter came out of the house and she swapped details with the rider because I was in shock. I don’t know what happened to the rider after that because I did not see him. I was in shock so I cannot remember.”
At my request the claimant filed in the portal a photograph marked with the point of impact. The ‘X’ marked on the photograph appears to be about midpoint between the two grass verges on the driveway but closer to the footpath than to the road.
I am aware there is a clear line of authority which states that a fact finder is not competent to assess distances solely by utilising photographs such as this one (Warren v Gittoes [2009] NSWCA 24 at [53] – [56]). However, in this matter the photograph is otherwise consistent with the evidence of the claimant in that the path of the bike was in line with the grass verge, albeit on the driveway to No. 74 at the time of the collision.

THE CLAIMANT’S POSITION

The claimant submits that the insured driver was wholly or mostly at fault for the accident. It is alleged she was negligent by reason of the following:
(a)   travelling at an excessive speed in the circumstances;
(b)   driving in a dangerous manner;
(c)   failing to stop and give way to pedestrians;
(d)   failing to stop and scan for pedestrians before entering the pedestrian walkway in circumstances where there is little or no visibility;
(e)   failing to avoid a collision;
(f)    failing to stop;
(g)   failing to keep a safe and proper lookout; and
(h)   failing to take reasonable care for other road users.

THE INSURER’S POSITION

The insurer concedes it is only entitled to avoid its obligation to pay statutory benefits, if it establishes that one of the disentitling provisions applies, in this case, sections 3.11 and 3.28 of the MAI Act, which permit an insurer to cease payment after 26 weeks if a claimant is wholly or mostly at fault for the accident.
The insurer also concedes it bears the evidentiary and legal onus of proving fault on the part of the claimant.
Section 74 of the Road Rules 2014 states a driver entering a road from a road related area must give way to any pedestrian or vehicle on a road related area that the driver must cross to enter the road. The definition of a road related area includes a footpath.
The insurer also relies on s 250 of the Road Rules 2014 which states that a rider over 16 years old must not ride a bicycle on the footpath unless they are accompanying a child under 16 years of age, the rider is a postal worker or the rider is carrying a person under 10 years of age, as a passenger.
The insurer submits the insured driver proceeded slowly, she looked to the right to check for traffic and ‘rolled’ forward to proceed onto the roadway.
The insurer submits the claimant exhibited a serious disregard for his own safety and failed to take reasonable care. The claimant was wearing earbuds impacting his ability to hear approaching traffic, he was riding his bicycle on the footpath in breach of the Road Rules, and he was not keeping a proper lookout for exiting vehicles from a driveway.

WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT

Section 1.4 of the MAI Act defines motor accident as follows:
“ ‘motor accident’ means an incident or accident involving the use or operation of a motor vehicle that caused the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

The insurer accepts the claimant was injured in an accident involving the use or operation of a motor vehicle that caused and resulted in injury in accordance with section 1.4 of the MAI Act. I agree.
The next question is whether the claimant was wholly at fault.
The Insurer referred to the decision of Dungan v Chan [2013] NSWCA 182. In that case, whilst dealing with injury sustained by a pedestrian, it was stated at [15]:
“A driver is entitled to assume that others will observe the rules of the road. However, that does not mean that a driver may proceed at any pace he or she chooses or with complete indifference as to the possibility of a pedestrian emerging from somewhere as the result of accident, miscalculation, ignorance or recklessness. As a general rule, a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue, the real question is whether, in all the circumstances, the person charged with negligence exercised the degree of care that those circumstances required. The standard of care expected of the reasonable person requires him or her to take account of the possibility of inadvertent and negligent conduct on the part of others (Wheare v Clark [1937] HCA 7; (1937) 56 CLR 715 at 723)”.
And further at [16]:
“The reasonable person would accept that it is not the duty of a driver to drive such that there is no foreseeable risk of injury to others. However, it does not follow that risks may be ignored. One must bear in mind the extent of the damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an oncoming vehicle, the consequent extent of the precaution that a driver must take against that eventuality and the extent of what a driver is able to do when confronted with such a danger. The damage that a driver may do to a pedestrian is great and that is an important matter when deciding what a driver must do. The inconvenience of driving more slowly is to be measured against what may be done to a pedestrian if the driver's estimate of the risk is wrong. Pedestrians act carelessly with sufficient frequency that a prudent person would take account of the possibility. Careless behaviour by pedestrians occurs often enough for a prudent driver to foresee it and to take it into account (Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 at 418)”.
It is difficult to accept the insured driver failed to see the claimant on his bicycle if she stopped at the end of the driveway, although it may be that she only looked to the right to observe the traffic on the road and failed to observe the claimant riding along the grass verge between the road and the footpath. I also note the claimant, by his own estimate, was riding at a speed of 15 kmph, which is a significant speed on a footpath.
The insured driver was aware her line of sight was impaired by reason of the colour bond fence and whilst she may not have been cognisant of the likely presence of cyclists, she would have been aware of the possibility of pedestrians walking along the footpath.
A prudent driver would have considered the possibility of a pedestrian walking along the footpath or a bicyclist riding across her driveway and having regard to her poor line of sight should have adjusted her driving to take into account that risk. I am not satisfied the insured driver either kept a proper lookout for persons, or in this case, a bike on the footpath or drove at a speed which allowed her to stop in those circumstances.
Accordingly, I find the claimant was not wholly at fault for the accident.
The next question is whether the claimant was guilty of contributory negligence. Did the claimant fail to take reasonable care for his own safety?
Section 3.38(2)(d) requires a finding of contributory negligence to be made where the claimant was not wearing a helmet at the time of the accident when required by law to do so.
Arguably the claimant’s culpability is increased by the fact he was wearing ear buds at the time and may not have been able to hear the approach of the insured driver’s vehicle.
The claimant estimates he was travelling at 15 kmph at the time of the accident. The insurer driver is unable to provide an estimate of the claimant’s speed where she did not see the claimant’s bike before the accident.
I am satisfied the claimant was guilty of contributory negligence for the following reasons:
(a) he was riding on the footpath in breach of s 250 of the Road Rules 2014.
(b)     he was not wearing a helmet when required by law to do so;
(c)     he was wearing ear buds which would have impeded his ability to hear the approach of the insured vehicle;
(d)     he was not keeping a proper lookout in that he failed to see the insured vehicle exiting the driveway at No. 74;
(e)     he was not riding with sufficient care where his vision of the approaching driveway was impeded by the colour bond fence and presence of trees; and
(f)     in riding at 15 kmph he was riding at a speed which was excessive as he was unable to stop when the insured vehicle exited the driveway.
The next question is whether the claimant was mostly at fault, that is, guilty of contributory negligence of more than 61%.
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. 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.”
Notwithstanding my finding that the driving of the insured driver involved a departure from the standard of care of the reasonable person I am satisfied that the culpability of the claimant is greater.
In riding along the footpath, whilst wearing ear buds, at a speed of 15 kmph where the footpath was intersected regularly by driveways bordered by fences and where trees were also present, I am satisfied the claimant failed to exercise reasonable care for his own safety.
I find the claimant’s departure from the standard of care of the reasonable man to be significant and his contributory negligence to be greater than 61%.
Whilst I am not satisfied the claimant was wholly at fault, I am satisfied the claimant was mostly at fault in that his contributory negligence was greater than 61%.

CONCLUSION

For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.
For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.

COSTS

No application for costs was made, however, I note success is not a prerequisite to the claimant recovering regulated costs from the insurer. I consider the claimant is entitled to recover from the insurer reasonable and necessary costs.
This is a miscellaneous claims assessment matter and pursuant to clause 3(1) of Part 1, Schedule 1 of the Motor Accident Injuries Regulation 2017 (NSW) the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. That is currently the sum of $1,660.16 plus GST. I find the claimant is entitled to recover those costs from the insurer.

Susan McTegg
General Member (Motor Accident Division)
Personal Injury Commission.

[2021] NSWPIC 347

14 September 2021