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ABJ v AAMI Limited [2018] NSWDRS CA 036

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsInjured person mostly at fault – pedestrian – contributory negligence – no statement from insured driver – visual impairment – disability pension
Legislation citedMotor Accidents Injury Act (NSW) ss3.11(2), 3.28, 3.36, 7.36(4), Schedule 2(3)(e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.445
Cases citedT and X Company Pty Ltd v Chivas [2014] NSWCA 235
Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34
Text citedN/A
Parties ABJ - Claimant
AAMI Limited  - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

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 her accident. The Insurer maintains that the Claimant contributed to her injury by 75%.

3.  At about 9.30am on 18 December 2017, the Claimant was crossing Lang Street Kurri Kurri when she was struck by a vehicle driven by the insured. She suffered fractures to her left foot requiring surgical reduction, grazes to her left torso, thigh and right arm.

4.  The Claimant lodged an Application for personal injury benefits on 11 January 2018. As she is a disability pensioner, the benefits payable in her case are limited to payment of treatment expenses.

5.  On 13 April 2018, the Insurer sent two letters to the Claimant – one conceding that she has suffered a non-minor injury and the other denying liability on the basis that the Claimant had contributed to her injury by 75%, making her the party most at fault. The Insurer based its decision on "cases like yours that have been decided previously by courts and the Dispute Resolution Service (DRS)". The only document cited as having been considered was the Insurer's own minor injury decision of the same date.

6.  The Claimant sought an internal review of this decision on 16 July 2018. Her application was made late but the Insurer determined that it had jurisdiction to conduct an internal review.

7.  On 17 July 2018, a Customer Relations Specialist of the Insurer called the Claimant, who at that stage was unrepresented, and discussed the matter with her.

8.  The Customer Relations Specialist carried out an internal review and advised the Claimant on 3 August 2018 that he affirmed the decision of the claims team that the Claimant was considered to be most at fault for the motor vehicle accident. In making his determination, the Customer Relations Specialist considered not only the contents of his telephone conversation with the Claimant but also her initial Application for personal injury benefits form, the Certificate of Fitness attached to the form, the Royal North Shore Hospital Discharge Notes of 6 January 2018, the Ambulance report of 15 February 2018 and AAMI’s letter of 13 April 2018 denying liability.

9.  In his reasons, the Customer Relations Specialist conceded that the insured had breached his duty of care to the Claimant. In support of his affirmation of the Insurer’s assessment of 75% contributory negligence, the Customer Relations Specialist recited the actions of the Claimant and cited the decision of T and X Company Pty Ltd v Chivas [2014] NSWCA 235.

10.  On 24 August 2018, the Claimant through her solicitor lodged an application for review of the Insurer’s decision.

Documents considered

11.  I have considered the documents provided in the Application and the Reply and any further information provided by the parties. In particular, I have requested and been provided with colour copies of two photographs included in the Claimant’s documents.

Submissions

Insurer’s submissions

12.  The Insurer submits that the Claimant is visually impaired and that she reported (to the Customer Relations Specialist) that before crossing the road she looked to her right and saw the insured driver’s vehicle approaching.  She also reported that she thought the vehicle was further away than it was.  The Insurer notes that notwithstanding that the Claimant was recovering from knee replacement surgery, which impaired her ability to walk at a fast pace, she was in a hurry to catch a bus.

13.  The Insurer submits that the Claimant was required to look after her own safety when crossing the road; that she was aware that she was visually impaired, had difficulty walking due to the recent knee replacement surgery and was aware of the insured driver’s vehicle approaching when she started crossing the road; that she was in a hurry to not miss the bus and therefore made an error in judgment to cross the road when it was not safe to do so.

14.  The Insurer submits (for the first time) that a photograph of Lang Street Kurri Kurri obtained from Google Maps shows a pedestrian crossing and that a reasonable person in the position of the Claimant, especially aware of her own disabilities and difficulties, would have used the pedestrian crossing to cross the road safely.

15.  The Insurer relies on T&X Company Pty Ltd v Chivas in which the Court of Appeal assessed the plaintiff’s contribution at 75%.

Claimant’s submissions

16.  The Claimant submits based on photographic evidence that Lang Street Kurri Kurri is a wide street in a busy area with shops on one side and a park on the other.  There is provision for parking on both sides of the street.  It is submitted that the insured should have been very careful as he was proceeding along as it is clear that pedestrian traffic could be expected at any time in that vicinity.

17.  The Claimant further submits that on the day in question, the weather was fine and visibility was excellent and that there is no reason why, had he been keeping a proper lookout, the insured could not have seen the Claimant as she was crossing the road from left to right.

18.  The Claimant states, and she has not been challenged or contradicted, that the collision occurred in the middle of Lang Street, which, she submits, means that she must have been visible to the insured had he been keeping a proper lookout, for quite some time as he approached.

19.  The Claimant submits this is not a dart out case and there is no possibility that she was running across the road because she was 63 years of age, recovering from a recent left knee replacement operation and could only walk with the aid of a walking stick.

20.  The Claimant says that following the collision, the insured approached her and said “Sorry, I didn’t see you” which she relies upon as an admission by the insured in support of her contention that she is not most at fault.

21.  The Claimant submits that the Insurer did not even request, much less obtain a statement from her before making their decision (by which I infer their decision of 13 April 2018).

22.  Finally, the Claimant submits that the case of T&X Company Pty Ltd v Chivas is different from the facts in this case, in that the Claimant in Chivas ran out unpredictably against a “do not walk” signal at traffic lights. There are a number of factual differences between Chivas and this claim.

Legislation

23.  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

Reasons

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

25.  The Insurer bears the onus of establishing that the Claimant in this matter was most at fault for her injuries.  However, the Insurer has not obtained a statement from its insured driver and seems not to have had any information from the insured available to it when it made its first decision, confirmed by the Customer Relations Specialist on review, that the Claimant was most at fault.  Quite how the Claimant’s actions can be balanced against those of the insured driver when there is absolutely no evidence about what the insured driver was doing and how he came to collide with the Claimant, is difficult to comprehend.  According to the Claimant’s statement, which is unchallenged, the insured driver has admitted that he did not see her before he struck her. Nothing else is known about his version of the events leading up to the accident.

26.  The Insurer has referred both in the decision of the Customer Relations Specialist and in the submissions provided for the purposes of this dispute to the ambulance report received by the Insurer on 15 February 2018.  Seemingly, that report was not considered by the Claims Team when it made its initial determination to deny liability or ongoing payments post 26 weeks.  It is not referred to as being a document that was considered in relation to that decision. Significant in that report is a history that the Claimant “Hurried across road to catch bus 9.30 am bus, didn’t see car to her right, walked in front, vehicle speed < 5klm/ph, patient was simply knocked onto the roadway left side”.

27.  There is no indication of who it was that gave this history to the ambulance officers who did not attend the scene until several minutes after the accident. Bearing in mind the hearsay nature of this entry from an unknown source, I do not interpret this as evidence of the actions of the insured driver for the purposes of weighing the respective actions of the parties. The Insurer makes no submissions based on the Ambulance record.

28.  The Claimant has provided a photograph taken at street level marking with an “X” the position of the collision in the middle of the Lang Street.  There is no evidence at all from the insured driver to suggest that this is incorrect.

29.  At the teleconference, the Insurer’s representative argued that there was an available pedestrian crossing, as depicted in a photograph from Google Maps and that the Claimant should have used it. However, there is no indication of where the accident occurred in relation to the pedestrian crossing. There appears to be only one crossing on Lang Street, which runs for several blocks. It is not apparent whether the pedestrian crossing was anywhere near where the Claimant was injured.

30.  The Insurer accepts that the Claimant would not have been running given her recent surgery and yet the Insurer makes no concessions, adhering rigidly to the Chivas decision as justification for its determination of contributory negligence of 75%.

31.  Unlike in this claim, the Court in Chivas had before it evidence of the actions of the insured driver.  It had an opportunity to balance the respective acts of negligence as is required to be done in accordance with the principle laid down in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34.

32.  Significantly, Podrebersek was considered and applied by the Court of Appeal in Chivas, yet the Insurer here offers no evidence whatsoever that would enable a weighing of the respective actions of the parties to be carried out.

33.  Absent that information, the Insurer cannot establish that the Claimant’s actions represent contributory negligence of 75% or indeed of any other percentage when balanced against those of the driver.  If, for example, the insured driver did not see the Claimant crossing the road because he was texting on his mobile phone, affected by drugs or alcohol or speeding, then negligence on the part of the Claimant, when balanced against this sort of behaviour, could be minimal.

34.  It is insufficient for the Insurer to simply pluck a percentage from the air and allege that a Claimant is most at fault for an accident when it has absolutely no evidence that would enable it to balance the respective actions of the Claimant and the driver and to make an informed determination.

35.  While the assertions of contributory negligence made by the Insurer may have some substance, I am not satisfied, given the evidence and submissions that have been provided in this case, that the Insurer has established that Claimant’s actions render her the party most at fault as envisaged by Section 3.11(2) of the Act. The Insurer has not discharged the onus of proving its allegations.

Costs and disbursements

36. The Claimant submits that she is entitled to maximum costs. The Insurer does not oppose such an order.

37.  Since last week’s teleconference, costs have been indexed upwards. The Claimant is now entitled to recover costs of $1,633 plus GST.

38.  I allow costs in the sum of $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.

Effective Date: This determination takes effect on 4 October 2018.

Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service