|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Fault of injured person – pedestrian – statutory benefits – agony of the moment – contribution of the Claimant to the injuries – accident involving family members – family dispute – daughter hits father|
Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36, Schedule 2, Part 5|
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.441
|Cases cited||Axiak v Ingram  NSWCA 311|
Davis v Swift  NSWDC 99
AAI – Claimant
NRMA Insurance Ltd – Insurer
|Disclaimer||This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.|
Miscellaneous Claims Assessment Certificate
Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines
Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter
|Insurer||NRMA Insurance Limited|
|Date of Accident||16 February 2018|
|Insurer Claim Number||NWRPT180038501|
|Date of Internal Review||28 June 2018|
|DRS Claims Assessor||Colin Stoten|
|Date of Decision||16 November 2018|
|Conference date and time||Determined on the Papers|
The findings of the assessment of this dispute are as follows:
- For the purposes of section 3.11 the motor accident was caused mostly by the fault of the injured person.
- For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person
- Effective Date: This determination takes effect on 16 November 2018.
- Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ nil.
A brief statement of my reasons for this determination are attached to this certificate.
Dispute Resolution Services
Reasons for decision
Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 201
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether the Claimant was mostly at fault for the accident.
1. This is a dispute about whether the Claimant is entitled to be paid statutory benefits beyond the first 26 weeks after the accident.
2. The Claimant was injured as a pedestrian when he was struck by a vehicle driven by his daughter after an apparent argument. The accident occurred at night on the roadway in front of the Claimant’s house.
3. The Insurer alleges there was no fault on the part of its insured driver who was the Claimant’s daughter, and if there was fault in the driving of the vehicle that the Claimant was mostly at fault.
4. The Insurer on 16 August 2018 issued a liability notice maintaining its previous stated position that the Claimant was wholly at fault for the accident. An internal review was sought but was not conducted within the time limits prescribed and so the dispute was referred to the DRS for determination.
5. I have considered the documents provided in the application and the reply and any further information provided by the parties.
6. The Insurer says the Claimant deliberately placed himself in a position of danger without regard for his safety and accordingly was wholly at fault. In the alternative if it is found that the insured driver had breached her duty of care then the Claimant was mostly at fault.
7. The Claimant as I understand his position says that although he was present on the roadway in close proximity to the car driven by his daughter, she swerved her car in the Claimant’s direction as she drove off, striking him, so that he had no reasonable opportunity to avoid the accident. He says this version is supported partly by the observations of one of his sons who was present and witnessed what happened.
8. I held a teleconference on 1 November 2018 and invited any further submissions from the Claimant by 14 November 2018. I did not receive any further submissions and so have now proceeded to complete my determination.
9. In making my decision/conducting my review I have considered the following legislation and guidelines:
● Motor Accident Injuries Regulation 2017
● Motor Accident Injuries Regulation 2017
● Motor Accident Guidelines 2017
10. I have considered the documents provided in the application and the reply and any further information provided by the parties.
11. This is an application brought by the Claimant for review of an internal decision by an Assessor not to pay statutory benefits beyond the initial 26 week period from the date of accident.
12. The Insurer’s decision is based on its determination that the Claimant was either wholly or mostly at fault in relation to the circumstances of the accident.
13. The Claimant challenges this and says he was not mostly at fault and that he should be entitled to continuing statutory benefits.
14. Essentially the Claimant says that he was not at fault as he was pedestrian struck by a vehicle driven by his daughter. There is some evidence from the Claimant’s son who witnessed the accident, which is to the effect that when driving her vehicle, the daughter swerved her vehicle in such a manner so as to hit the Claimant causing him to fall to the roadway and suffer injury.
15. The Insurer’s first submission is that the insured driver, who is the Claimant’s daughter, acted in the agony at the moment due to a family dispute and that she was attempting to drive away from the Claimant’s home in circumstances of high emotion. As to this argument, I am not satisfied that this decision is appropriate, and even if it were, and I was to find that the insured driver was blameless for the accident, the Claimant would be entitled to avail himself of the no fault provisions of the Act as set out in Part 5 of the Act. In the event that I was to find a blameless accident, I would be required to determine the respective contributions of each to the accident in accordance with Axiak v Ingram  NSWCA 311, and Davis v Swift  NSWDC 99.
16. Accordingly, whether the insured driver was at fault matters not. In my view, the real issue for determination is the contribution of the Claimant to the injuries suffered by him in the accident.
17. I do not have a statement from the Insured driver but I have a police report which essentially summarizes the matters already before me in the evidence I have reviewed.
18. I have a Statement from AAJ’s son, indicating that the Claimant’s daughter was apparently unpredictable and emotional, and he recalled hearing her raise her voice and heard her say words to the effect that she was leaving. He heard the squeal of tyres and the vehicle revving, and he says it sounded as though the vehicle was being “floored”. He says that “…30 seconds later he heard (name omitted) coming into the house seeking (name omitted) assistance because their father had been injured”.
19. I also have a Statement signed by AAJ’s other son, who says he witnessed the accident and heard a squealing of tyres, and significantly says that “…when she went forward for the last time she turned the vehicle into the Claimant and hit him and then sped away”. If this were the only evidence for me to consider there is, in my view, a significant likelihood that the insured driver would be found to have significantly contributed to the accident by her actions in swerving the vehicle to strike the Claimant.
20. The Claimant provided a statement to an investigator on 23 March 2018. In that statement the Claimant recounts the emotional events which led to the eventual accident. In relation to the circumstances of the injury the Claimant repeats essentially what is shown in CCTV footage of the incident. At the critical point the Claimant says:
As she took off the driver’s side mirror …struck me in the left of my lower back and I fell to the ground in the middle of the road. I don’t remember her swerving toward me at all, it was just that I was close to the car trying to get her to stop.
21. However this is not the only evidence, and I have been provided with two CCTV clips from two different locations, one of which appears to be from the Claimant’s home. I have reviewed this footage numerous times, in excess of 20 times, and my observations of what is contained in that CCTV footage is at odds with the version given by AAI’s son.
22. My observations of the CCTV footage taken from the Claimant’s home is as follows in summary form:
● Claimant follows behind her.
● Daughter gets into the vehicle and puts her headlights on and attempts to drive off, however the Claimant stands in front of the vehicle.
● Daughter reverses the vehicle as the Claimant walks in the direction of the reversing vehicle.
● Claimant turns to walk back towards the house as vehicle drives forward.
● Claimant turns around and walks back to a spot in front of the vehicle and puts his hands on the bonnet of the vehicle and gesticulates to the driver.
● Daughter reverses the vehicle again and the Claimant walks towards the reversing vehicle.
● The vehicle then appears to drive between the gutter on her left side and the Claimant on her right. As the vehicle passes the Claimant he appears to turn and take two steps towards the vehicle, by which time the front of the car appears to have passed him. He then comes into contact with the driver’s side of the vehicle and falls behind it as it passes him.
23. The conclusions I draw from my observations of the CCTV footage are as follows:
(ii) I could discern no sudden movement of the vehicle towards the Claimant shortly before the Claimant was hit. Indeed, and to the contrary, I saw the Claimant take steps toward the vehicle as it was proceeding past him.
(iii) It appeared to me that the Claimant came into contact with an area around the rear driver’s side wheel arch of the vehicle as it passed him. It was the movement of the Claimant towards the vehicle as it was passing him which ultimately led to his contact with the vehicle, causing him to fall to the roadway.
24. The CCTV footage is of course independent and objective evidence as to the circumstances of the accident, and I prefer to rely upon the CCTV footage than the recollections of the Claimant’s son.
25. I have therefore concluded that the greater proportion of negligence in bringing about the accident lay with the Claimant.
26. I accept that the Claimant’s daughter also contributed to the accident, in that she was aware of the presence of her father, and the emotional circumstances of the incident. However it was the daughter who was seeking to leave, and the Claimant who was seeking to prevent her from leaving for whatever reason. Accordingly, part of the blame for the accident must lay with the driver.
27. However by far the greater contribution to the accident were the actions of the Claimant in attempting to prevent his daughter from leaving and placing himself in a position of peril, and indeed, on my review of the evidence, walking into the side of the vehicle as it was driving past him.
28. In my view, the actions of the Claimant as displayed on the CCTV footage are such that I have reached the conclusion that the Claimant’s actions contributed to the accident by more than 61%, as is required by Section 3.11 and Section 3.28 of the Act.
Cost and disbursements
29. The Claimant did not have legal representation and has been unsuccessful in this application.
30. I am therefore not satisfied that the Claimant is entitled to the payment of legal costs.
My determination of the Miscellaneous Claim is as follows:
31. For the purposes of section 3.11 the motor accident was caused mostly by the fault of the injured person.
32. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person
33. Effective Date: This determination takes effect on 16 November 2018.
34. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $nil.
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