|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Fault – mostly at fault – contributory negligence – pedestrian – carpark – GIPA – low visibility – consumption of alcohol – lying in carpark|
|Legislation cited||Motor Accidents Injury Act (NSW) ss 3.11, 3.28, 7.36(5), Schedule 2(3)(d), Schedule 2(3)(e)|
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 2017 cl 7.441
Civil Liability Act 2002 (NSW) s 5R
Government Information (Public Access) Act 2009 (NSW)
|Parties||ABP - Claimant|
AAMI Insurance - 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
|Date of Accident||17 December 2017|
|Insurance Claim Number||Y05274700901|
|Date of Internal Review||17 August 2018|
|DRS Claims Assessor||David R Ford|
|Date of Decision||11 June 2019|
|Conference date and time||Assessed on the Papers|
The findings of the assessment of this dispute are as follows:
1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person.
2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused mostly by the fault of the injured person.
3. Effective date of this determination takes effect on 11 June 2019.
4. 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.
A brief statement of my reasons for this determination are attached to this certificate.
David R Ford
DRS Claims Assessor Dispute Resolution Services
Reasons for decision
Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)[d] [e] of the Motor Accident Injuries Act 2017, about whether for the purposes of Section 3.28 (statutory benefits after 26 weeks to injured and persons most at fault or to injured persons with minor injuries).
1. This is a dispute between ABP, the Claimant, and AAMI Insurance, the Insurer, with respect to payment of statutory benefits, pursuant to Sections 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (the Act).
2. The Insurer undertook an internal review and a Statement of Reasons is attached to the Application form and is dated 17 August 2018.
3. On 17 December 2017 at approximately 3:30 am the Claimant and his friend were lying on the ground in the carpark of the McDonalds restaurant at Engadine. It then transpired a white Holden Commodore exited the drive-through area of the McDonalds restaurant, turned right to drive through the carpark travelling at a speed of approximately 10 km per hour (kph). The driver of the said Holden Commodore then proceeded to drive over the Claimant and his friend who were lying on the carpark ground.
4. Inexplicably, after driving over the Claimant and his friend, the driver of the Holden Commodore vehicle then reversed back over the two men causing further injuries.
5. Police attended the scene of the accident and took statements from the driver of the Holden Commodore vehicle, the Claimant, and other witnesses. The Insurer also arranged for an investigator to interview the Claimant and other witnesses.
6. Subsequently, the Insurer arranged for a Government Information Public Access Act 2019 (GIPA) and a number of documents were received pursuant to this application by letter dated 18 March 2019.
7. During the teleconference between the parties on 24 April 2019, both parties agreed it was not necessary to view the CCTV footage obtained by the police, as it was unclear and unhelpful.
8. The police officer who attended the scene of the accident, Senior Constable Morony, reported at the time the visibility at the scene as being very low light, low visibility with rain. Senior Constable Morony also reported the point of impact as in the middle of the driving area of the carpark.
9. By letter dated 10 January 2019, the solicitor for the Claimant forwarded to the Insurer a number of photographs of the incident scene, taken subsequently at night by the Claimant. These photographs in my opinion showed the area to be well-lit. I subsequently requested the solicitor for the Claimant to indicate on one or more of the photographs the position the Claimant was lying on the ground when struck by the Insured’s motor vehicle.
10. In the documents produced in answer to the GIPA request, there was a hand-drawn diagram of the scene of the accident which indicated the position of the Claimant on the carpark at McDonalds when struck by the Insured’s motor vehicle. This position marked X was in close proximity to a concrete barrier.
11. I then subsequently received from the solicitors for the Claimant by email dated 6 May 2019 a photograph of the Claimant lying on the surface of the carpark adjacent to a handicap parking spot. There was also another photograph of the Claimant provided in the same email dated 6 May 2019 where it was depicted a concrete barrier approximately two car spaces away from where the Claimant was lying.
12. I forwarded an email to the Insurer on 7 May 2019 asking whether they wish to send a written response in relation to those photographs and if so, I require a response by Monday, 13 May 2019. There was no response from the Insurer.
13. I do not accept the photographs furnished by the solicitor for the Claimant, by email dated 6 May 2019, represents the position of the Claimant on the carpark. I am persuaded the position of the Claimant at the time was as depicted in the handwritten “site diagram” drawn by the police officer who attended the scene of the accident. It would not have been possible for the Claimant to be run over by the Insured’s driver in the position depicted by him in the said photograph.
14. I have considered the documents provided in the Application and the Reply, and in addition the further photographs provided to me as referred to above; and also the documents attached to the GIPA application.
15. The Insurer has set out detailed submissions in their internal review dated 17 August 2018 and also their submissions attached to the Reply dated 24 October 2018.
16. In their submissions, the Insurer states the following:-
17. The Insurer notes the Claimant had been consuming alcohol prior to the accident. The Claimant confirmed to the police officer that it was dark and he did not see the car coming before the accident.
18. Furthermore, the Insurer makes the following submission:-
19. The Insurer further submits the following:-
20. In conclusion, the Insurer made the following submissions:-
- In the first instance, that the Claimant is wholly or mostly at fault for the accident and his subsequent injuries.
- In the alternative, and in the event the DRS Assessor considers the Insured driver did breach her duty of care (which is not conceded), that the Claimant’s contributory negligence to the occurrence of his injuries is 75% at the minimum.”
21. It is recorded in the police officer’s notebook who attended the scene of the accident, the Claimant made the following statement:-
A. Drive through, turned right. I was going 10k’s max. I couldn’t see anything as it was raining. I was going up hill so I couldn’t see much over the bonnet. I felt a bump and I thought I had gone over a cement thing. I reversed back and saw two persons lying there. I didn’t know what to do. One of them turned his head and looked at me. I pulled over and everyone came running over.”
22. Furthermore, at a later stage, the Insured’s driver states the following:-
A. Not at all.”
23. A passenger in the Insured’s motor vehicle at the time also gave a statement but was messaging a person on her cell phone and did not observe the incident unfolding.
24. I refer to the submissions lodged by the solicitors for the Claimant in the Application dated 11 September 2018. At paragraph 12, it is stated as follows:-
13. Witness LT, has indicated his belief that the Plaintiff was mostly in a parking spot and approximately 75cm into the driving lane.
14. The speed limit of the Parking Lot was 10km/hr.
15. As it was night time, the parking lot was lit by multiple street lamps. A large street lamp was in close proximity to the Plaintiff as indicated within the Factual Investigation report.”
25. Furthermore, I note the following submissions made by the solicitor for the Claimant:-
29. Importantly, it is respectfully noted that the Plaintiff was passive and stationary, in the parking lot.”
26. Furthermore, I note the following submission:-
27. By further note, paragraph 37:-
28. I note the Insurer in the submissions in the Reply regarding the “second collision” submit was follows:-
- Reversed back to see what had been hit; or
- Gotten out of the vehicle to see what had been hit.
The Claimant’s election to reverse back to see what had been hit was not a breach of duty of care, nor a departure from the standard of care set out above. The Claimant was of the belief she had hit a speed bump or a cement barrier. She was in the middle of a poorly lit carpark, in low visibility conditions. She had no reason to believe any people would be lying in the middle of the carpark, or that she could have hit a person who was lying in the middle of a carpark. The Insurer submits the act of reversing back over the Claimant does not constitute a breach of duty of care.
In the event the DRS Assessor considers the Insured driver did breach her duty of care in relation to the second collision, the Insurer has provided submissions regarding contributory negligence.”
29. In relation to contributory negligence, the Insurer submits the following:-
30. I refer to the statement of the Claimant which is attached to the Application form dated 29 May 2018. I refer to the following paragraphs of the statement:-
14. W was then laying down in the carpark and I went and lay down next to him to make sure he was ok.
15. Then we were just laying there for a few minutes. At this time there were quite a few other cars in the car park and McDonalds was fairly busy for 3:00 am in the morning.
16.While I was laying there with W we were both laying on our backs with our feet facing opposite the Princes Highway and pointing kind of towards the McDonalds store.
17. The next second I realised a car had run over both myself and W and I was in shock. All I can remember is the pain in my chest.
18. I recall being underneath the car and then the car reversed back over both W and myself.
19. At that point I think I passed out and the next thing I remember after that was laying on the ground and Ambulance were there trying to get me into the Ambulance.”
31. 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
- Civil Liability Act 2002 (NSW)
Was Mr ABP wholly at fault in causing his accident?
32. After perusing the photographs of the carpark area forwarded by the solicitor for the Claimant by letter dated 10 January 2019, I do not accept the Insured’s driver statement she was “going uphill so I couldn’t see much of the bonnet.” The photographs provided indicate to me a flat driving surface.
33. Whilst visibility may have been “low” as a consequence of the rain, as submitted by the Insurer, I do not accept that at the scene there was “very low light.” Again, the photographs provided by the solicitor for the Claimant depicting the carpark area, illustrate, in my opinion, a well-lit area.
34. The Insured’s driver was driving her vehicle at a very low speed (submitted to be 10 km per hour), and the headlights of her vehicle were on.
35. In the circumstances, I cannot accept the Insured’s driver was keeping a proper lookout when driving the vehicle and I find it difficult to comprehend she could not see the Claimant and his friend lying on the surface of the carpark.
36. Furthermore, I find it inexplicable that after running over the Claimant and his friend, the Insured’s driver decided to reverse her vehicle back over the two bodies lying on the surface of the carpark. This was the reaction of an inexperienced driver in my opinion.
37. I therefore find the Insured’s driver was negligent in the driving of her vehicle as she was clearly not keeping a proper lookout when exiting the carpark of the McDonalds drive-in, and therefore, I find the Claimant, ABP, was not wholly at fault in causing the accident.
Was the motor accident caused mostly by at fault of ABP?
38. The onus of proving contributory negligence rests upon the Insurer.
39. In deciding whether ABP was guilty of contributory negligence, I must have regard as to the standard of care set out in Section 5R of the Civil Liability Act (NSW) 2002.
40. As stated above, I find the Insured’s driver was not keeping a proper lookout, and if she had done so, she would have clearly seen the Claimant and his friend lying on the surface of the carpark.
41. I further find ABP was negligent in deciding to lay upon the surface of the carpark, but having regard to the fact it was raining lightly and the plain fact he was in a position close to where vehicles would be exiting the carpark.
42. I note the solicitors for ABP have made a concession that the Claimant’s contribution as far as contributory negligence is concerned is in the range of 30% - 40%.
43. As far as the actions of the Insured’s driver in reversing back over the Claimant and his friend, I do not accept there was any contributory negligence on his behalf in this instance if this reversing action caused him to suffer further distinct injuries.
44. Accordingly, in my view, the Claimant should not have been lying on the surface of the carpark in an area where motor vehicles were exiting the drive-in of the McDonald’s restaurant, and I therefore find he is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%.
45. During the Fourth Teleconference on 24 April 2019, the solicitor for the Claimant requested I do not make an assessment of contributory negligence. I will therefore comply with their request.
46. I, therefore, find the accident of 17 December 2017, was not caused wholly by the fault of ABP.
47. I also find the accident of 17 December 2017, was not caused mostly by the fault of ABP.
Costs and disbursements
48. There is no issue the Claimant, is successful, and is entitled to the payment of legal costs. I will allow costs in the sum of $1,796.30 inclusive of GST.
My determination of the Miscellaneous Claim is as follows:
49. For the purposes of section 3.11 and 3.28 the motor accident was caused by the fault of another person.
50. For the purposes of section 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.
51. Effective Date: This determination takes effect on 11 June 2019.
52. 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.
David R Ford
DRS Claims Assessor
Dispute Resolution Services