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ABC v NRMA Insurance [2018] NSWDRS CA 029

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Mostly at fault – contributory negligence – mobility scooter – dash cam footage – independent witness – disability pension – costs
Legislation citedMotor Accident Injuries Act 2017 (NSW) ss 3.28, 3.28(2), 3.36, 7.36(4), Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.445
Cases citedCook v Hawes [2002] NSWCA 79
T&X Company Pty Ltd v Chivas [2014] NSWCA 235
Text citedN/A
Parties ABC – Claimant
NRMA Insurance – Insurer 
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines
Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantABC
InsurerNRMA Insurance
Date of Accident16 January 2018
DRS Reference10041747
Insurer Claim NumberNWRTP180074201
Date of Internal Review10 July 2018
DRS Decision MakerMargaret Holz
Date of Decision10 October 2018

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.

Effective Date: This determination takes effect on 10 October 2018.

Legal Costs: I am not satisfied that the Claimant is entitled to the payment of legal costs.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service

Reasons for decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Background

1.  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 purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault) the motor accident was caused mostly by the fault of the injured person.

2.  There is a dispute between the Claimant and the Insurer in relation to the Insurer’s denial of liability for payment of statutory benefits following the first 26 weeks after the accident based on the Insurer’s assessment that the Claimant was most at fault for his accident.

1.  At about 12.13pm on 16 January 2018, the Claimant was crossing a pedestrian crossing governed by traffic lights at Boronia Road Greenacre on a mobility scooter when he was struck by a vehicle driven by the insured. He suffered a periprosthetic fracture to his left knee.

2.  The claimant lodged an Application for personal injury benefits on or about 16 April 2018. As he is a disability pensioner, the benefits payable in his case are limited to payment of treatment expenses.

3.  On 1 June 2018, the insurer denied liability in a conversation with the Claimant’s son and by letter of that date to the Claimant. A copy was sent to the Claimant’s solicitor.

4.  The insurer based its decision on an updated factual report of 9 May 2018, a copy of which was attached to its decision.

5.  The claimant sought an internal review of this decision on 18 June 2018.

6.  A Consultant, Quality and Compliance of the insurer carried out an internal review and advised the claimant on 10 July 2018 that he affirmed the original decision that the claimant was considered to be most at fault for the motor vehicle accident. In making his determination, the Consultant considered the Claimant’s Application for personal injury benefits form, the Certificate of Fitness attached to the form, the Ambulance report of 20 April 2018 and a factual report from MJM Corporate Risk Services of 8 June 2018 including statements of the insured driver, a witness, a transcript of an interview with the investigating police officer and dash-cam footage of the incident.

7.  On 7 August 2018, the Claimant through his solicitor lodged an application for review of the Insurer’s decision.

Documents considered

8.  I have considered the documents provided in the Application and the Reply and any further information provided by the parties.

Submissions

The claimant’s submissions

11.  The claimant relies on a statement prepared for him and signed by his son, in which the following information is stated:

(a)  The claimant was born on (ABC’s date of birth). This makes him 87 at the time of the accident.

(b)  The claimant does not speak English and has not worked for over twenty years.  He is a pensioner.

(c)  Prior to his accident he utilised a mobility scooter.  His mobility skills are very limited.  He uses a walker for small distances or a mobility scooter for further distances.

(d)  He has resided in a nursing home for over two years.

(e)  On the day of the accident he rode his motorised scooter along Waterloo Road and went to cross the road at the intersection with Boronia Road, believing it was safe to do so.  He says there were no vehicles approaching.  He says “All of a sudden, without warning, the offending motor vehicle collided straight into me and my motorised scooter.”

12.  The statement provides details of the claimant’s injuries and residual symptoms.  He also provides his opinion about the actions of the insured driver, those opinions being made retrospectively. His observations are more in the nature of submissions and do not constitute evidence.

13.  The claimant’s legal advisers submit that the dash-cam footage reveals that the offending driver did not attempt to slow down or brake within a reasonable time.  It is submitted that the driver failed to be observant of his surroundings and give way to other people including the claimant on the road.

14.  The claimant’s submissions emphasise part of the statement of the independent witness, JPC, who said that he saw the insured vehicle, “travelling at a fast speed.”  It is submitted that, “It is arguable that the driver was speeding and/or should have seen the claimant crossing the road.”

9.   The claimant submits, based on the dash-cam footage, that the driver should have noticed the claimant crossing the road at 11:13:43, that he had an opportunity to stop and failed to brake his vehicle or take evasive action.

10.  The claimant acknowledges that he was partially at fault.  His solicitor submits that his percentage contribution to his injuries would be less than 15%.  The claimant further submits that “The claimant’s conduct did not pose a danger to anyone.”

11.  At the teleconference on 3 October 2018, it was acknowledged by the claimant’s solicitor that the claimant had been crossing against a red pedestrian signal.

The insurer’s submissions

12.  The insurer relies on the statement of its insured driver, AMH, who was proceeding along Juno Parade which becomes Boronia Road, immediately past its intersection with Waterloo Road.  The driver says that the section of the road is on a 15 degree incline and that he was familiar with the intersection. He was travelling at about 55km/h in a 60 kph zone.  He says that as he approached the intersection, the traffic control lights were showing green.

13.  According to his statement, he was “in the intersection” when he saw a male on a mobility scooter to his left whereupon he immediately applied his brakes.  He collided into the right side of the mobility scooter causing the claimant to fall off to his left. AMH describes the impact as light.  He says that there was no damage to his vehicle.

14.  I should interpolate that the claimant was crossing Boronia Road on the far side of the intersection from where the insured driver was approaching.

15.  An independent witness, JPC, has provided a statement of 2 May 2018 on which the insurer relies.  He was waiting at pedestrian lights to cross Boronia Road, immediately before the accident.  He says:  “Suddenly out of nowhere, a male on a motorised scooter crossed the road whilst the pedestrian light was still red.”  He says that he saw the insured vehicle travelling at a fast speed from Juno Parade.  The driver of the insured vehicle broke very hard and collided with the right side of the motorised scooter, which threw the claimant off his scooter.

16.  The insurer submits, based on this material, that the claimant was most at fault for the accident.  In addition to the statements of AMH and JPC, the insurer relies on the dash-cam footage which, it submits, shows the following:

  • At 11:13:43 ABC becomes visible wherein he is positioned upon the pedestrian footpath on a mobility scooter.
  • At 11:13:44 ABC is seen entering the pedestrian crossing, against traffic signals.  At this time, the insured was approaching the intersection where he had a green traffic light.
  • At 11:13:45 immediately after entering the intersection, the NRMA insured commences to apply his brakes heavily.  It also appears that he attempts to swerve his vehicle away from the direction ABC; and
  • At 11:13:47 there is a collision between the NRMA insured’s vehicle and ABC.

17.  It is submitted that the claimant has moved onto the road against pedestrian signals when it was unsafe to do so.  By contrast, the insurer submits that its insured driver has taken all reasonable steps to avoid the collision.  The insurer submits:  “Upon having a clear view of ABC and determining that he would move against pedestrian signals, the NRMA insured has immediately applied their brakes and attempted to steer their vehicle away (from) ABC.”

18.  The insurer relies on the cases of Cook v Hawes [2002] NSWCA 79 and T&X Company Pty Ltd v Chivas [2014] NSWCA 235.  These are both dart out cases where the plaintiff crossed against a red pedestrian light into the path of a moving vehicle.  In each case, the Court found the plaintiff’s contributory negligence to be 75%.  Accordingly, by analogy, it is submitted that the Claimant is the party most at fault for the accident.

Legislation

19.  In making my decision I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Consideration

20.  The crucial piece of evidence in this case is the dash-cam footage.  The footage does not represent exactly what the driver saw, but only what he might have seen, perhaps from a slightly lower viewpoint, had he been focusing frontwards.

21.  It is apparent from the dash-cam footage that the insured vehicle proceeded up a slight rise, at the top of which was the intersection in question.  As the vehicle approaches the intersection, there is some movement from the left. From my observation, it is not immediately apparent what that movement is.  As the vehicle moves closer to the intersection, it becomes clear that there is a person on a mobility scooter crossing the intersection.  The driver brakes heavily but strikes the claimant on the scooter, who is still moving when he is struck. The Claimant appears to be looking straight ahead.

22.  The claimant submits that the insured driver should have braked immediately, as soon as the Claimant became visible, and, seemingly, even before he commenced to cross the road. This is an unrealistic expectation, as is an expectation that the driver would apply his brakes at the instant the Claimant entered the pedestrian crossing. Such would not allow for the necessary delay between the driver’s perception of danger and his reaction to it, which must be factored into all such accidents.  While I have no expert evidence in this matter, it does appear to me that the insured driver’s reaction to the presence of the Claimant was reasonably fast, although it is arguable that he could have reacted fractionally more quickly.

23.  In relation to the actions of the Claimant, it is apparent that he was looking straight ahead throughout the time that he was on the roadway and not checking for oncoming traffic.  The Claimant’s solicitor at the teleconference on 3 October 2018 suggested that the Claimant had followed someone else across the intersection, which might explain his actions. However, there is no indication in the dash-cam footage that there was anyone on the roadway as the insured vehicle approached.

24.  It is apparent from the dash-cam footage that the claimant was travelling quite quickly on his mobility scooter. There are two traffic lanes in each direction. The claimant  The incident occurred when he was just commencing to cross the second lane when he was struck.

Determination

25.  Both parties have admitted some negligence.  It is my duty to balance the respective acts of negligence in order to determine whether the claimant can be considered to be the party most at fault for the accident, which means, in accordance with s 3.28(2), that he contributed to his injuries by more than 61%.

26.  Having regard to the evidence, especially the dash-cam footage, and the submissions of both parties and having regard to the findings of the Court of Appeal in two not dissimilar cases, I have reached the determination that the claimant’s actions render him most at fault for the accident, in that he has proceeded onto an intersection on a mobility scooter, against a red pedestrian light and in disregard of the presence of oncoming traffic.

Cost and disbursements

27.  I am not satisfied that the Claimant is entitled to the payment of legal costs.

Conclusion

30.  My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.

31.  Effective Date: This determination takes effect on 10 October 2018.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service