ABP v AAMI Insurance [2019] NSWDRS CA 042

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)
Cases cited	N/A
Text cited	N/A
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

View the 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
Claimant	ABP
Insurer	AAMI Insurance
Date of Accident	17 December 2017
DRS Reference	10048804
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

Background

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.

Documents considered

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.

Insurer submissions

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:-

“Senior Constable Morony, who attended the scene shortly after the accident, confirmed that the point of impact was in the middle of the driving area of the carpark and visibility at the scene as very low light, low visibility with rain. He also had the opportunity to review CCTV footage, whilst other vehicle obstructed a clear view of the impact, the footage showed the injured parties laying down behind a parked car. It also captured the vehicle driving through the carpark, stopping, reversing and then parking quickly.”

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:-

“While the Insured driver certainly owed a duty of care to the vehicles and pedestrians around her, there is no information to suggest she has departed in a material way from the standard which is expected of her. There is no evidence the Insured driver failed to keep a proper lookout. The conditions were dark and wet, the Insured driver’s headlights were on, and she was driving uphill making it difficult for her to see anything over the bonnet. The Claimant’s allegation that the Insured driver failed to break upon impact does not take into account how quickly, even at 10km/h, the Claimant’s vehicle would have rolled over the Claimant. There is no breach of duty of care established in this regard.”

19. The Insurer further submits the following:-

“The Insurer submits a reasonable person in the position of the Insured driver would not expect to come into contact with persons laying down in the middle of a McDonalds carpark at 3am. In addition, with reference to the particular visibility identified by Police, a reasonable person in the position of the Insured driver would not have been able to see the Claimant as he was laying down in a dark area. A reasonable person in the position of the Insured driver would not have been able to brake to avoid collision once she felt she was driving of the Claimant.”

20. In conclusion, the Insurer made the following submissions:-

“Based on all of the available information, it is the Insurer’s position that:

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:-

“Q. Can you tell me what happened?

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:-

“Q. Did you see the two persons before the crash?

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.

Claimant submissions

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:-

“12. The Plaintiff proceeded to lay down next to his friend on the parking lot floor. The pair of men were positioned on the eastern side of the marked disabled parking space, as noted in the Insurer’s factual investigation report

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:-

“28. The Plaintiff concedes that his actions had put himself in a position of vulnerability to motor vehicles driving through the parking lot. However, vulnerability is distinctly different from action which stimulates accidents to arise.

29. Importantly, it is respectfully noted that the Plaintiff was passive and stationary, in the parking lot.”

26. Furthermore, I note the following submission:-

“35. Specifically, although the Plaintiff may have contributed to being struck in the first incidence, in that his location was unexpected, he was in no way caused or contributed to the second incident, of him being reversed over.”

27. By further note, paragraph 37:-

“37. A fair and equitable method of calculating contributory negligence would then limit the Plaintiff’s contribution to be a maximum of 30% - 40%. The Plaintiff has put himself in a position to potentially be struck, upon being struck, he has made no contribution to the Insured’s actions, which were entirely driven by her own negligent choices, and reasonably attributed thereafter 100% responsibility for the exacerbation of the incident and injuries.”

28. I note the Insurer in the submissions in the Reply regarding the “second collision” submit was follows:-

“In the circumstances, the Insurer submits a reasonable person in the situation of the Insured driver, who held the reasonable belief she had hit a speed bump or a cement barrier/gutter, would have done one of two things:

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:-

“Despite the inconsistencies in the Claimant’s versions, it is clear the Claimant was intoxicated, laying in a dark area, with low visibility, in an area he considered to be quite busy with vehicles. It is obvious the Claimant has departed from the standard if care a reasonable person is expected to take for themselves.”

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:-

“13. The best of my recollection this happened at the top left of the carpark after entering at the bottom driveway entry. The carpark has lighting and there is also street lighting and all the lighting was on.

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.”

Legislation

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)

Reasons

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.

Findings

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.

Conclusion

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