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ABE v GIO General Ltd [2018] NSWDRS CA 031

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – contributory negligence – police report - road rules – breach of road rules
Legislation CitedMotor Accidents Injury Act (NSW) ss 3.11(2), 3.28(1), 4.17, 7.36(4), Schedule 1 Part 1, Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.445
Road Rules NSW 2014, Rule 126
Civil Liability Act 2002, s 5R
Cases CitedRussell v Chu [2015] TASSC 25
Teubner v Humble (1961) 108 CLR 491
Lee v Dow [2017] NSWDC 220
Text CitedN/A
Parties ABE- Claimant
GIO General Ltd- 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

ClaimantABE
InsurerGIO General Ltd
Date of Accident9 December 2017
DRS Reference10042180
Insurer Claim NumberY05205100902
Date of Internal Review12 July 2018
DRS Decision MakerClaims Assessor Terence STERN
Date of Decision12 October 2018
Conference date and timeNot applicable
Conference venue and locationNot applicable - decided on the papers
Participating at the Preliminary Conference for ClaimantFonda Bipi of SCB Legal
Participating at the Preliminary Conference for InsurerMar-Lize Crawford of Suncorp Legal Services

The findings of the assessment of this dispute are as follows:

1.  For the purposes of s 3.28 (1) (a) of the Act, the motor accident was not caused wholly or mostly by the fault of the injured person.

2.  The Claimant’s costs to be paid by the Insurer are assessed at $1,760.00 inclusive of GST.

Terence Stern
Claims Assessor
Dispute Resolution Services

Reasons for decision

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

Introduction

1.  ABE claims to have sustained injuries to the cervical spine, lumbar spine and right shoulder in a motor vehicle accident on 9 December 2017.

2.  ABE has made a claim Y05205100902 for statutory benefits under the Motor Accident Injuries Act 2017 against GIO General Ltd (‘GIO’).

3.  By notice of 11 April 2018 GIO denied liability for payment of statutory benefits following the first 26 weeks after the accident on the basis that ABE was the driver of the at fault vehicle and that pursuant to the Act is not eligible for statutory benefits after 26 weeks.

4.  At internal review on 12 July 2018 the decision maker Mr Tim Virgona set out the matters in dispute, the relevant legislation, what he perceived to be the facts of the matter and concluded by confirming the decision of the Claims Officer of denial of liability after 26 weeks as ABE was considered to be the driver at fault.

Background

5.  This dispute between ABE and GIO is as to whether the motor accident in respect of which ABE claims was caused mostly by the fault of ABE in that if there was any contributory negligence on the part of ABE it was greater than 61%. (3.11 (2) MAI Act 2017 (New South Wales).

6.  ABE states [10 July 2018] that on 9 December 2017 at about 4.00pm he was the driver of a vehicle stopped at traffic lights in the turning lane waiting to turn right and upon the lights turning green he proceeded to turn.  There were 2 cars in front of him. He was travelling at about 20-30kms per hour and at what he describes as a ‘safe distance between him and the car in the front’. The second car i.e. the car in front of him stopped without warning and the car directly in front of ABE slammed on its brakes.

7.  ABE says he  slammed on his brakes but could not avoid the collision.

8.  ABE says that the accident was not his fault and if he was guilty of contributory negligence it was of a dimension of less than 61%.

9.  ABE says that he was travelling at a safe distance but was not able to avoid the collision even though he was keeping a proper lookout and applied his brakes appropriately.

10. GIO says that if ABE had complied with Rule 126 of the Australian Road Rules by keeping an appropriate distance behind vehicle 2, the accident would not have happened at all and says that the accident was either the fault of ABE or that he contributed by more than 61%.

11.  In the course of the telephone conference I questioned GIO’s representative as to documents held by it and I was informed that all documents had been provided. It did not have a report or statement from the driver of the insured vehicle nor were there any other photographs other than the photograph provided.  Further, it held no statements of witnesses and all material on which the internal review had been decided had been provided to me.

The Issues

12.  i)  was ABE travelling at a safe distance behind the vehicle in front at all material times.
ii)  was the driver of the insured vehicle guilty of negligence.
iii) was ABE at fault in terms of contributory negligence.
iv)  if so, was ABE at fault in terms of contributory negligence greater than 61% and deemed to be wholly at fault.

Documents considered

13.  I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

14.  Pursuant to the directions made, ABE provided a further short statement [28/09/18] but no further submissions.

15.  No further submissions were made by the Insurer.

Legislation

16. In making my decision/conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Rule 126 of the Road Rules NSW 2014
  • Civil Liability Act 2002

Primary Statement of ABE - 10 July 2018

17. ABE states (adopting the paragraph numbers in the statement):

6.   After 4.00pm on 9 December 2017 he was driving Olympic Drive towards Vaughan Street.

7.  Stopped at the traffic lights at the turning lane to turn into Vaughan Street.

8.  On the lights turning green proceeded to turn.

9.  Two cars in front.  Car 1 was two cars in front and car 2 directly in front of him.

11.  His speed was about 20-30km/h as he had just turned the corner from Olympic Drive.

12. There was a safe distance between his car and car 2 (the car directly in front).

13.  Car 2 suddenly and without warning slammed on its brakes.

14.  Car 1 had suddenly stopped at William Street.

15.  The driver of car 1 gave no indication of intention to stop.

16.   He slammed on his brakes.

17.  Tried to avoid the collision.

18.  Insufficient space to avoid the collision.

20.  Took all steps to avoid the collision.

ABE’s supplementary statement – 28 September 2018

18. ABE states (adopting the paragraph numbers in the statement):

6. Maintained a distance of no less than 4-5 metres between his vehicle and the vehicle in front.

The police report

19. The police report does not add any information of a probative nature as to causation or fault.

20. ABE submits that the driver of vehicle XXX (car 1) failed to indicate his intention to turn.

21. ABE further submits that the driver of vehicle YYY (car 2) failed to indicate the intention to bring the vehicle to a sudden halt and brought the vehicle to a sudden halt without warning whereby his vehicle was unable to stop safely.

GIO’s submission

22. GIO relies on Regulation 126 of the Road Rules 2014, NSW that a driver must drive a vehicle at sufficient distance behind the vehicle travelling in front so that the driver can if necessary stop safely to avoid a collision.

23. GIO submits that the reasons for the occurrence for the initial collision are immaterial as to whether ABE was keeping a safe distance between his vehicle and the vehicle directly in front.

24. GIO submits that based on the available evidence ABE was wholly at fault.

Relevant legislation

25.  s 5R of the Civil Liability Act 2002 provides:

i)  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 neglect in failing to take precautions against the risk of that harm (2) for that purpose:
a)  the standard of care required by 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 know or ought to have known at the time’

This is fundamentally a restatement of the Common Law and the principles apply to motor vehicle accidents.

26. s 4.17 of the Motor Accidents Injuries Act provides:

‘Contributory Negligence – generally

(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
(2)  Not reproduced.
(3)  The damages recoverable in respect of the motor accident are to be reduced on account of contributory negligence by such percentage as the court or claims assessor thinks just and equitable in the circumstances of the case  unless subsection (4) requires that the damages be reduced by a fixed  percentage. The court or claims assessor must state the reasons for determining the particular percentage.’

27. Road Rule 126 (NSW):

‘A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so that the driver can, if necessary, stop safely to avoid a collision with the vehicle.’

Relevant Case Law

28. Rule 126 of the Road Rules Australia has been considered by superior courts.

In Russell v Chu [2015] TASSC 25 Judgment of Wood J it was stated:

‘The Road Rules create offences, and to determine whether there has been a breach requires an evaluative exercise. It involves an enquiry beyond what is required to determine negligence.……r 126 involves a question about the meaning of “behind”, and may involve a factual question of whether the vehicle was “behind” the bicycle at a time when it can be said that the defendant was too close to amount to a safe distance behind. The (word) “safely” must be given effect: Penrith City Council v East Realisations Pty Ltd [2013] NSWCA 64 per Tobias AJA.   ………these considerations must, as a matter of common-sense, be tempered by consideration of other matters, including the conduct of the plaintiff.  Presumably this rule would not be invoked if the unsafe distance was created by the plaintiff pulling out in front of the defendant, creating the unsafe situation such that a collision could not be avoided.

His Honour continued at 100:
As a matter of principle, determining whether or not the plaintiff or defendant has breached the Road Rules does not resolve the question of negligence. In Sibley v. Kais (1967) 117 CLR 424 the High Court explained the breach of regulations is not definitive of the respective duties of drivers to each other or in respect of themselves. Further, the breach …… is not conclusive as to the performance of the duty owed…….”whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way……must remain a question of fact to be judged in all of the particular circumstances of the case”.

Further at 101:
The fact that conduct is prohibited may be one factor pointing to the conclusion that reasonable care was not taken….. In this case it is unnecessary to determine the application of the rules that are relied upon.  There is no single and clear rule that might have been breached by the defendant which advances the question of his negligence.  The same situation applies with respect to the question of plaintiff’s compliance and contributory negligence.

Further at 102:
The defendant advanced another argument relating to the Road Rules.  It is submitted that a reasonable prudent driver was entitled to drive with the expectation that others will obey the Road Rules.  As identified, however, the rules which apply to these factual circumstances are not absolute.  The Road Rules set up competing obligations upon drivers in an attempt to regulate shared use of the road.  Whether in the circumstances……..it was reasonable for the defendant to act upon the assumption that the plaintiff would obey a particular rule or rules is not a useful question to explore.

Where there is a claim that the accident was wholly caused by the negligence of the plaintiff or whether there was an issue of contributory negligence depends upon a number of factors which must be taken into account and which are part of an evaluative exercise in determining who was to blame and in what proportion.  Merely because a road rule is invoked does not answer this question.’

29. The matters which need to be considered include:

i. was ABE driving too fast in the circumstances;

ii. was ABE keeping a safe distance at the time (as he alleges) the driver of the vehicle directly in front slammed on his brakes and came to a crash stop;
iii. was ABE entitled to assume that the driver of the vehicle in front would continue on his course and at the time that assumption was held was there a safe distance;
iv. was ABE keeping a proper lookout or was he guilty of inattention.

30. In giving consideration to whether or not ABE was wholly at fault it is appropriate to refer to what Windeyer J said in Teubner v Humble (1961) 108 CLR 491 at 504:

“…..the degree of care that must be exercised in any operation varies with the risk involved…. the question is one of fact  ……..when both are at fault the question is how far in the circumstances did the motorist depart from the  standard of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian”.

31. s 5R(1) was considered in Lee v Dow [2017] NSWDC 220 by Dicker DCJ at [145] S5R(1) reflects the “fundamental idea that people should take responsibility for their own lives and safety” and also the proposition expressed by Callinan and Heydon JJ in Vairy …..that “the duty that [an injured plaintiff] owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realised.”

32. His Honour continued at 146:

“The question whether a person has been guilty of contributory negligence is determined objectively.”

Consideration

33. Whether or not there was a breach of r 126 of the Road Rules (NSW) is not determinative.

34. The question arises whether or not a reasonable person in the position of ABE at the time immediately prior to the vehicle in front slammed on the brakes would have driven as ABE did in terms of the distance between the vehicle he was driving and the vehicle in front.

35. The further question arises as to whether it would be just and equitable to consider ABE wholly at fault in terms of contributory negligence, or having contributed by more than 61%.

36. The available evidence which comes only at this stage from ABE, there being nothing to the contrary from the driver of either of the other two vehicles, is:

‘I had just turned onto Vaughan Street from Olympic Drive,   driving westbound and suddenly the car with rego plate XXX decided to turn onto William without warning or indication. As a result, the car behind this one with plates YYY collided into XXX.  As a result of this I collided into the car with rego YYY.’

37. ABE has stated that he was driving at a speed of 20-30km/h at a sufficient distance behind vehicle 2 and in circumstances where there was no indication that vehicle 1 would suddenly make a manoeuvre which would force the driver of vehicle 2 to slam on the brakes.  ABE says that at the speed he was travelling there was no reason to believe that vehicle 2 in front would make a sudden manoeuvre or the vehicle immediately in front would slam on its brakes.

38. ABE further says that the distance between his car and vehicle 2 at the material time was no less than 4-5 metres.

39. ABE, if accepted on his account, was driving at a speed of 20-30 kms an hour at a sufficient distance behind the vehicle in front of him and in circumstances were there was no indication that vehicle 1 i.e. the vehicle two cars in front would suddenly make a manoeuvre which would force the driver of the actual vehicle directly in front to slam on its brakes.

40. The actual % of the contributory negligence (as against whether or not it was more than 61%) of ABE is not the issue in dispute and is not required to be determined by me in this dispute. I find however, that ABE was neither wholly at fault nor wholly at fault in the technical sense of being at fault to an extent greater than 61% and that the extent of the contributory negligence was well under 61%.

41. I find that to the extent that ABE contributed to the cause of the accident it was of a percentage (which I am not required to specify) of less than 61%.

42. It is arguable that 4 to 5 metres was not a sufficient distance and that therefore to the extent that it was not a sufficient distance ABE contributed to the cause of the accident.

43. It does not follow as a result of this that ABE was wholly responsible for the accident nor does it follow that his contribution was in excess of 61%.

44. It would not be just and equitable to direct all the blame for ABE either in fact or by considering him to be more than 61% at fault. The two drivers of each car in front had a significant measure of responsibility for the accident.  The driver 2 in front for giving no warning of a turn and the driver immediately in front for driving too close to the vehicle in front and therefore having to slam on brakes on his vehicle.

45. It may be fairly argued on ABE’s evidence and there is no evidence to contradict it available at this stage that but for the sudden manoeuvre of vehicle 1 and the driver of vehicle 2 travelling too close to vehicle 1 and therefore having to slam on his brakes that the accident would not have happened.

46.  Arguably the extent of the contribution of ABE to the cause of the accident might be well under 50%f but it would not be just and equitable to determine either that he wholly caused the accident or that his contribution was in excess of 61%.

47. ABE’s evidence at this stage is uncontradicted and, on the balance of probabilities, establishes that to the extent he contributed to the cause of the accident the contribution was less than 61% and that consequently he was not wholly or mostly at fault.

Costs and disbursements

48. The Motor Accident Injuries Regulation 2017 provides at Schedule 1, Part 1 (3) (1) for the maximum sum of $1,600.00 for both the Claimant and Insurer’s legal costs for an individual regulated miscellaneous claims assessment matter.  Schedule 1, Part 3(2)(3) lists the dispute before me as a regulated miscellaneous claims assessment matter.

49. Section 7.42 provides that in assessing such a dispute, subdivision 2 applies. Section 7.37 is in subdivision 2 and provides that I have power to assess a Claimant’s costs (when assessing a claim for damages).  I am proceeding on the basis that this section also gives me jurisdiction to assess the Claimant’s costs (but not the Insurer’s costs) in a miscellaneous claims assessment matter.

50. I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the Claimant’s costs at $1,600.00 to which GST is added (under cl 35 of the Regulation) making the total awarded for costs $1,760.00 inclusive of GST.

Terence Stern
Claims Assessor
Dispute Resolution Services
12 October 2018