Wilson v Allianz Australia Insurance Limited
[2021] NSWPIC 396
•23 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Wilson v Allianz Australia Insurance Limited [2021] NSWPIC 396 |
| CLAIMANT: | Samuel Wilson |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 July 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; rider of motorcycle on powerline track; single vehicle accident; wheel of motorcycle caught in rut and claimant thrown from motorcycle; Held - claimant not wholly at fault; riding cautiously; rut not clearly visible; Podrebersek v Australian Iron and Steel applied; claimant conceded whilst looking he did not look directly in front of his wheel, claimant guilty of contributory negligence; claimant not mostly at fault; contributory negligence not greater than 61%; claimant’s contributory negligence mere inadvertence; contributory negligence assessed at 20%; claimant self-represented; no costs to be assessed. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was not wholly or mostly caused by the fault of the injured person (the Claimant). 2. For the purposes of section 3.28 the motor accident was not wholly or mostly caused by the fault of the injured person (the Claimant). 3. Effective Date: 23 July 2021 4. A brief statement of my reasons for this determination are attached to this certificate. |
INTRODUCTION
On 1 July 2020 Samuel Wilson (the Claimant) was riding his Yamaha motorcycle along a powerline track parallel with the Princes Highway, south of Cranbrook Road, Batemans Bay. Whilst negotiating a steep decline into a gully the wheel of the motorcycle got caught in a rut and the Claimant was thrown from the motorcycle (the accident). The Claimant sustained a compound fracture of the right wrist.
On 22 July 2020 the Claimant completed an Application for Personal Injury Benefits in respect of injury sustained in the accident.
On 3 December 2020 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 7 January 2021 an application for an internal review was submitted by the Claimant.
In an Internal Review Decision dated 28 January 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.
The matter was the subject of a teleconference on 9 July 2021.
JURISDICTION OF THE PERSONAL INJURY COMMISSION
The application in this matter was lodged at DRS.
The Personal Injury Commission (PIC) commenced operation on 1 March 2021 and the DRS was abolished by cl 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 and cl 14B(1) of the Personal Injury Commission Regulation 2020 designates this DRS application pre-establishment, pending proceedings and cl 14B(3) empowers me to assess the claim.
Because of the date of the accident, cl 14B(4)(c) provides that the Motor Accident Injuries Act (the Act), the Motor Accident Injuries Regulation and Chapter 7 of the Motor Accident Guidelines continue to apply
DOCUMENTS CONSIDERED
·Application for Personal Injury Benefits dated 4 September 2020 (R3)
·Police Report Event Reference No. 74933447 (R3)
·Longitudinal photograph of the track (A1)
·Photograph of the track (A2)
·Aerial photograph of the track (A3)
·NSW Ambulance Report (R3)
·Batemans Bay District Hospital Clinical Notes (R3)
·Application for internal review dated 7 January 2021 (R3)
·Certificate of determination – Internal Review dated 28 January 2021 (R2)
·Insurer’s submissions dated 6 April 2021 (R1)
·Record of Interview between David Hargreaves and the Claimant recorded 5 February 2021 (AD 1)
·Three photographs furnished by the Claimant on 14 July 2021 showing the rut in the track.
THE RELEVANT LAW
Section 3.11 of the 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 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
In the Application for Personal Injury benefits the claimant provided the following description of the accident:
Rode motorcycle into rain erosion track. Losing control of the steering and balance.
The Police Report contains the following description of the accident:
About 1:45pm on Wednesday the 1st of July 2020 a 55 year old male was travelling North along the powerline track parallel with the Princes Highway just South of Cranbrook Road, Batemans Bay on a Yamaha WR450. Whilst negotiating a steep decline into a gully the motorcycle wheel got caught in a rut and the male was thrown from the motorcycle. The male suffered a compound fracture to the right wrist. A riding companion returned to assist and contacted police and ambulance. The male was treated at the scene before being conveyed to Moruya Hospital for treatment. The motorcycle was taken to a nearby motorcycle store for storage.”
The Claimant captioned the photograph marked A1 as follows:
Prior images were of the accident spot, these are images of the area and shows my perception of clearly normal dirt road, nothing indicating that conditions were about to change, nothing other than normal riding conditions. No risk or bad decision causing the outcome. Unforeseen accidental (sic). I should not be held at fault.
The Ambulance Report stated: ““55 y/o trail bike rider slow speed fall…”
The clinical records of Batemans Bay District Hospital recorded:
55 yr male, FOOSH injury to right wrist. Very slow speed fall from motorbike. Descending steep road at - 10kmph. Loss back wheel and fell sideways. Impact to ground with wrist and then rolled to side. No other injuries or concerns. Had very good personal protection (Helmet, body armour, gloves)(sic).
I note FOOSH is an acronym for “fall onto an outstretched hand”. And further the triage record states:
BIBA from bush, slow speed MBA – in bush coming down steep track fell off bike over handlebars.
Additional presenting information – FOOSH over handlebars, denies LOC at time….
In the application for internal review dated 7 January 2021 the Claimant stated:
The police never asked me at any time to provide a statement, instead taking comments from a rider who attended the scene soon after. Yet came to the at fault decision without my input. They came to their conclusion at the scene with (sic) asking me or considering how it came to be (sic) The decision to end my claim seems to based on this and is very inaccurate. I was NOT wholly at fault.
In response to my request the Claimant provided three further photographs of the track and the rut. I provided the Insurer with an opportunity to provide any further submissions, but none were forthcoming.
It is apparent from those photographs that the rut was not only hidden by the dip in the track but also by the tufts of grass at the edge of the track. The third photograph of the three provided clearly shows the deep vee formed by the rut.
Claimant’s record of interview
The Claimant participated in a record of interview on 5 February 2021 with David Hargraves, an investigator engaged by MJM Corporate Risk Services instructed by the Insurer.
The Claimant is a 56-year-old man who has held both a driver licence and a motorcycle licence for 38 years. The Claimant described his ability to ride motorcycles as professional, extremely competent, noting when young he raced motorcycles. The Claimant had worked as a helicopter pilot since 2000.
The Claimant was in excellent health, did not drink alcohol and had not consumed any drugs or medication in the 12 hours prior to the accident. The Claimant’s motorcycle was only four or five months old at the date of accident, it only had 700 kilometres on the clock and was technically sound.
In response to Q145 the Claimant stated:
So - and the track looked brilliant, you think - you can see cars use it obviously, or four wheel drives or whatever. I had no reason to believe just round that corner and that little bit of grass there was a big crater. Which is why I sort of, you know a little bit frustrated with the decision that it makes me at fault, you know, because we drove down the highway making the presumption that there isn’t a pothole, but of course it can happen, and if you hit the pothole does that make you at fault, why should this road by any different. It is a public road, it's open to the public. I had no reason to think there was a hole there, and look at the condition of the other track -it’s very - very, very good. So automatically you drop your guard and this was a great day for riding and all of a sudden there's a big hole and the rest is like history.
In response to Q171 where the Claimant was asked if he acted with caution he stated:
You’re always acting with caution, ‘cause you know you do - obviously you don’t think you’re going to run into something like that and when the track does present itself like that there’s always good signs already, like they usually start with small rain erosion then you, you know, you’ve got the undulations, and of course straight away you’re looking and watching for the best route. In this case the track presented itself as perfect, and even looking at those photos you can see if you look at the overall picture, the overall picture is extremely good. So you - so then I guess you get that false sense of ‘this is beautiful’. You’re still looking but maybe you’re just not - you’re not looking with that intent that it’s going to be disastrous. And given, you know, where the location of that hole in against the side of the grass, I just didn’t see it coming and it was too late to turn out of it once I started into it, and then obviously then I tried to stop but that wasn't successful (sic).
And further, in answer to question 173, where he was asked if he rode in a careful manner the Claimant states:
I did. I’d say I wouldn’t have been - I think I did - I definitely got to second gear, ‘cause first is very low on those bikes. I might’ve got third gear, just you know tickling the throttle. I guesstimated 30 kilometres an hour, which is just sort of - just, you know, like going through a school zone slow, ‘cause you’re always - you are always looking. You know you’re still looking regardless how good it is, you’re still looking. How intent you look, you know, if it starts getting bumpy and rocky then you’re probably going slower or looking even more. But yeah, the track was good and I was slow. I’d only just turned the corner so you couldn’t be anything else other than. And the fact that I knew it was going to eventuate into a downhill then I’m looking down the hill, I’m looking. But I just wasn’t looking directly in front of my wheel to see that rut starting, you know, and that’s - you know, me being careful maybe. I don’t know, how do you even put it into words. You don’t ride into these things on purpose, it’s obvious, you know.
When asked at Q174 whether any part of the track prior to the point of impact presented a risk at all, the Claimant stated:
No, no that’s what-the point I’m making it actually presented quite well.
When asked at Q188 if he had time to take precautions prior to driving into the rut the Claimant stated:
Time to take any precautions - well I already was being cautious riding to the conditions as they say, like honestly I was - maybe I wasn’t even doing 30, but I’d say 30 ‘cause I was you know in second gear, I would had to be doing at least 30. And then as I seen the rut progressing then I decided - I looked, I could see then how far it went and then I tried to stop.
I thought - I’d actually thought I would stop easily, but that wasn’t the case. Maybe just the looseness of the base of the rut or something, I’m not really sure. Either way I didn’t get it stopped and as I got it stopped that’s when I fell off.
At Q189 the Claimant was questioned about taking evasive action once he was already in the rut. He stated:
Correct. In that brief, you know, that brief - you process ‘will I get through it’, I could see how deep it got and I just thought I wouldn’t take a chance thinking I could keep the bike upright - ‘cause obviously the nature of being balanced on a bike is being able to move the bike beneath you, not move you. So l chose to stop, and then in the process of trying to stop I was - maybe there was a little bump or there was something, but something made my wheel - like as I was just coming to a point of stop - snap, and that just knocked me onto the handlebars and then I went over the handlebars.
So the bike didn’t eject me, I sort of- I fell off the bike and the bike fell down, laid down, not a scratch on the bike. You know the bike wasn’t involved in the accident. It was just the fact that that rut, me stopping, I lost the front end and I went over the handlebars and the bike doesn’t have a scratch on it. …..
At Q190 the Claimant was asked whether there was any reason why he was travelling closer to the edge of the pothole – of the path and not so much to the middle of the fire trail. He replied:
Yeah, because if you look at the photos I sent you, that’s the clearest path. I didn’t - ‘cause the grass in the centre, given that it probably doesn’t get a lot of traffic - they don’t inspect power lines that much -the grass in the middle is quite tufty. So the track automatically takes you, ‘cause you can see that is the flattest part, but of course as you go over the brow slightly left then that’s what hid the hole. That’s what hid it from me. So the path led me into that little disaster zone. I’m guessing Rob - ‘cause he come up from the - he turned right onto the track, he obviously took the right hand side. He’s probably wondering why I even, you know - how I even fell off.
In relation to speed the Claimant stated in response to Q206:
The speed of the accident I’d say I got less than 10 kilometres an hour when I fell off, and given the bike was undamaged probably even less, nearly stopped. I can’t predicate that exact speed - 5 to 10. Coming over the hill no more than 30. First gear, second gear, looking - wondering where Rob went, oh there’s a hole - what, what, what - brakes - off, you know and what’s virtually happened, it -
The Insurer’s position
The Insurer submits that as this was a single person accident the question to be asked is whether the Claimant’s injuries were the result, either in whole or in part, of the Claimant’s own fault.
The Insurer notes the application of section 5R of the Civil Liability Act, 2002 (CLA) to motor accidents. Subsection 1 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.
The Insurer submits that in accordance with s5B of the CLA it is necessary to identify the risk of harm to the Claimant to determine whether the risk was foreseeable, not insignificant and whether a reasonable person in the Claimant’s position would have taken precautions against the risk of harm.
The Insurer asserts trail bike riding has inherent risks, including the risk of harm as a result of falling off the motorcycle while traveling over rough, unfamiliar terrain. The Insurer submits this risk was foreseeable to the Claimant, who attempted to mitigate the risk of injury by wearing protecting clothing.
The Insurer relies upon the Claimant’s response to Q171 and Q173 (see above) to assert he was not keeping a proper lookout.
The Insurer submits the Claimant knew the trail was not maintained and the condition of the trail was variable. The Insurer states the Claimant’s failure to keep a proper lookout exposed him to the risk of harm that materialised, namely entering a rut in the trail, losing control of the motorcycle and falling. In failing to look more intently in front of his wheel he failed to either avoid entering the rut by steering or braking before entering the rut.
The Insurer does not concede this was a blameless accident. The Insurer submits even if the Claimant was not wholly at fault, he was guilty of contributory negligence of 80% on the basis his culpability was high. A finding of 80% contributory negligence would mean the Claimant was mostly at fault for the accident.
The Insurer relies upon Axiak v Ingram [2012] NSWCA 311 at [88] where Tobias AJA found that contributory negligence in a case such as the present can only be assessed upon the basis of a value judgment as to the extent to which the claimant’s conduct failed to conform to the standard of care expected of a person in the claimant’s position.
The Insurer relies on the following facts:
(a) the claimant was a 54-year-old male at the date of accident;
(b)the claimant is experienced in riding motorcycles, having held a motorcycle licence for 38 years;
(c) the Claimant is a person who rode motorcycles when he was young as his mode of transport;
(d) the Claimant has never had his licence suspended or been disqualified;
(e) the Claimant described his riding ability as “professional, extremely competent”;
(f) the Claimant rides fire trails on and off;
(g) the Claimant owns two motorcycles, a road bike and an off-road bike;
(h)the Claimant is conscious of riding safely and has appropriate safety equipment;
(i) the Claimant rides a bit slower and does not get caught riding in a lead rider’s dust; and
(j)the Claimant was wearing protective equipment at the time the accident occurred).
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
19.Section 1.4 of the 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.
Section 1.4 of the Act defines fault as “negligence or any other tort whilst Injured person is defined as a person who has suffered an injury in respect of which the Act applies as provided by Division 1.3.
Division 1.3 includes s 1.9 which is in the following terms:
(1) This Act ……applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if 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 s 1.4 of the Act.
The next question is whether the Claimant was wholly at fault. It seems to me he was not. There is no evidence to counter the evidence of the Claimant. He was an experienced rider with a good driving record. His bike was near new and mechanically sound. He undertook what he described as a ‘checkpoint’ before riding the bike. He states he was riding cautiously and understood his friend was going to show him a good area where he could ride safely, and he could see the scenery. Indeed, the Claimant stated he rode more carefully than his friend and hung back to avoid his dust.
The Claimant stated the ‘track looked brilliant’ and he had no reason to believe ‘just round the corner and that little bit of grass there was a big crater’. Further, he stated he had no reason to think there was a hole or rut there because the track up to that point had been very, very good.
In response to question 173 the Claimant stated he was in either second or third gear ‘just you know tickling the throttle’ at a guesstimated speed of 30 kilometres an hour which he described as the speed at which he would ride through a school zone. The Claimant stated he looked always and would slow his pace if the track became bumpy or rocky.
When asked why he was travelling closer to the edge of the pothole and not in the middle of the fire trail the Claimant stated it was the clearest path, the grass in the middle was quite tufty and ‘the track automatically takes you, cause you can see that is the flattest part, but of course as you go over the brow slightly left then that’s what hid the hole. That’s what hid it from me. So the path led me into that little disaster zone’.
I am satisfied the Claimant was driving carefully given the conditions. The track up until that point had been very good and there was no reason for the Claimant to foresee the presence of the rut. Had the rut not been present over the hill leaving the Claimant little time to see and avoid it, or if it had been clearly visible it is unlikely the accident would have occurred. On that basis I do not accept the Claimant was wholly at fault.
The next question is whether the Claimant contributed at all to the accident. Was the standard of care exercised by the Claimant at that time the standard of care of a reasonable person in the position of the Claimant having regard to what he knew or ought to have known at the time.
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.’
In response to question 173 the Claimant conceded that whilst he was looking, he just wasn’t looking directly in front of his wheel to see the rut. Trail bike riding has inherent risks and in failing to look more intently in front of his wheel I find the Claimant contributed to the risk of harm, that is the risk that he would face a hazard on the track which would cause him to lose control of his motorcycle and fall.
To be disentitled to statutory benefits under sections 3.11 and 3.29 of the Act it is necessary to find that the contributory negligence of the Claimant was more than 61%.
Even though I am satisfied the riding of the Claimant contributed to the accident I am also satisfied the Claimant’s contributory negligence was simply mere inadvertence. Other than failing to look intently in front of his wheel I am satisfied the Claimant was riding carefully and exercising the caution expected of a reasonable person in the position of the Claimant. I do not find the contributory negligence of the Claimant to be more than 61%.
I have been asked to make a finding as to the contributory negligence of the Claimant. I am of the view the Claimant’s contributory negligence was in the region of 20%.
CONCLUSION
36. I find pursuant to s 3.11 and 3.28 of the Act that the Claimant was neither wholly, nor mostly at fault for the accident.
37. I assess the Claimant’s contributory negligence at 20%.
COSTS
38. As the Claimant is self-represented there are no legal costs to be assessed.
Susan McTegg
General Member (Motor Accident Division)
Personal Injury Commission
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