|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Statutory benefits - contributory negligence - degree of contributory negligence - cyclist - failure to keep proper lookout - costs for legal services provided to a claimant|
|Legislation Cited||Motor Accidents Injury Act (NSW) s 3.38|
Motor Accident Injuries Regulation 2017
Civil Liability Act 2002 (NSW) s 5B, 5R
|Cases Cited||Sibley v Kais  HCA 43|
Teubner v Humble  HCA 11
|Parties||ABY - Claimant|
QBE Insurance (Australia) Limited - 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(4) of the Motor Accident Injuries Act 2017
Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter
|Insurer||QBE Insurance (Australia) Limited|
|Date of Accident||22 February 2018|
|DRS Decision Maker||Claims Assessor Belinda Cassidy|
|Date of Decision||30 January 2019|
The findings of this assessment are:
1.For the purposes of section 3.38 of the Act, the insurer may reduce statutory income support benefits payable in respect of the motor accident for the Claimant’s contributory negligence and I assess the Claimant’s contributory negligence at 20%.
2.The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST of $163.30.
Belinda Cassidy Claims Assessor
Dispute Resolution Services
Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017
1. ABY was riding his push bike to work down Queens Avenue Kogarah at about 8.45 am on 22 February 2018 when he was involved in a collision with a car driven by RF. A satellite photograph of the area is reproduced below.1
2. On or about 11 April 2018, ABY made a claim [R2]against QBE, the third party insurer of RF’s motor vehicle. The claim was made for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017.
3. On 30 July 2018, QBE wrote [R3] to ABY accepting liability to continue to pay ABY statutory benefits but alleging 30% contributory negligence against ABY. ABY sought an internal review of that decision and on 14 September 2018 QBE upheld its original decision.
4. ABY has referred the Insurer’s decision to the Dispute Resolution Service for determination under Schedule 2(3)(g) of the MAI Act, about whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38.
5. What is in issue between the parties is:
b. If there should be a finding, the degree of any contributory negligence.
Background and evidence
6. ABY was riding his pushbike along Queen Street Kogarah in a generally northerly direction. RF was driving in the opposite direction. At the intersection with Ocean Street, RF turned right across the path of the Claimant’s bicycle causing him to collide with her vehicle, fall and sustain injury.
7. After the first teleconference I received the following documents which I have added to the Insurer’s bundle with the following identification:
b. R3 Liability notice benefits after 26 weeks dated 30 July 2018
c. R4 Application for internal review dated 21 August 2018
d. R5 Letter QBE to Claimant dated 27 August 2018
e. R6 QBE internal review decision dated 14 September 2018 (this refers to a certificate but not certificate was attached)
f. R7 Document headed’ Investigations Report – Attachement – Statement Outline Received 4/6/18’
8. QBE have undertaken limited investigation of this accident. No investigator has been retained to draw up a scale diagram or take photographs for example and there is no statement from the Insured or any witness. Document R7 includes a document confirmed as having been written by Elise Lambert from QBE’s ‘investigation and clams support team’. But this document is not signed and I do not give it much weight in the absence of a signature or something from the author explaining how and when it was created and upon what documents it is based.
9. The Claimant relies on the police report dated 13 June 2018 [A2] and the following documents which I have added to his bundle and given the following identification;
b. The Claimant’s statement to the police dated 10 December 2018 [A4]
10. The police report notes that the police attended the scene of the accident but did not take a report at that time as the Claimant appeared to be not seriously injured. The Claimant attended Kogaraph police station on 14 March 2018 to formally report the accident when it appeared his knee was more seriously injured than he first thought.
11. The police spoke with RF whose version of events is recorded as follows: As I was slowly turning onto Ocean Street, Suddenly I noticed a male was on the passenger side front window screen. I did not feel the impact of my car with the cyclist.
12. The police conclude RF was at fault noting that ABY was travelling straight and had right of way.
13. The remainder of the police report deals with the decision of the police to take no further action on the basis it was a ‘minor traffic crash’ and the reasons for this.
14. The Claimant’s statement to the police reports that the Claimant was riding to work and that traffic was banked up along Queens Avenue when:
15. In his application for personal injury benefits dated 11 April 2018, the Claimant further explains that ‘I saw that the driver of the car’s attention was focused on the right side of her vehicle as she proceeded forward through the banked traffic’.
16. In his statement dated 10 December 2018 the Claimant documents his extensive bicycle riding experience and refers to a photograph of the accident scene with a ‘x’ marking the point of impact. I have circled the point of impact in red.
17. The remainder of the statement takes issue with the Insurer’s document in R7. ABY refers to RF as being focused on ‘squeezing’ through traffic as she turned right.
18. As can be seen from the photograph above, there are no lines in Queen’s Avenue at the intersection with Ocean Street although there are lines on Ocean Street. Included in the bundle of documents R7 is a diagram of the accident scene which is not to scale (the vehicle at the time of the impact is much smaller than the vehicles depicted as stationary in Queen Street) but it does indicate that there were vehicles banked up on both sides of Queen Street heading in the same direction as the Claimant and it would appear it was a gap in that banked line up of traffic that RF ‘squeezed’ through when she collided with ABY.
19. I accept, on the uncontested evidence of ABY that he was travelling north-east in Queen Street between a line of banked up traffic and the kerb. I also accept on the basis of his evidence (which has not been challenged by any evidence given by RF) that RF was not, at or shortly before the impact, looking in ABY’s direction but was focussed on turning right and safely navigating the gap in vehicular traffic banked up in both directions on Queen Street. I am satisfied that ABY took no precautions before entering the intersection but braked as soon as he saw RF.
20. Both parties have provided written submissions. I gave the parties the opportunity to give me further submissions at the second teleconference but neither party wished to add anything to their submissions.
21. The Insurer alleges that the Claimant was not keeping a proper lookout as he headed into the intersection as RF was completing her right hand turn [paragraph 3].
22. The Insurer refers to the Road rules stating ‘it is illegal to lane filter next to parked vehicles’. I have no evidence before me that there were parked vehicles, there were stationary vehicles in a line of traffic. The Insurer however acknowledges that a breach of the road rules in any event is not determinative of a breach of duty of care.
23. QBE cite Sibley v Kais  HCA 43 noting that the obligation of drivers entering an intersection is to take reasonable care in doing so.
24. The Insurer suggests the Claimant had time to avoid the accident because he had time to observe RF was not looking at him. With respect to the Insurer I have no evidence as to how much time the Claimant had. His evidence is that he saw RF as she was turning, he braked hard and then he noticed where she was looking;
25. The Insurer refers to three other cases involving collisions at intersections in support of its allegation of 30% contributory negligence.
26. The Claimant submits that he did not fail to keep a proper lookout or enter an intersection unsafely.
27. The Claimant notes the Insurer bears the onus of proof and must satisfy me that there should be a finding of contributory negligence. The Claimant asserts that ‘the entire culpability outght be attributed to [RF].
28. The Claimant’s submissions refer to the well established principle that in determining the amount of contributory negligence on the part of a Claimant, I must consider the relative culpability of both parties. The Claimant dismisses the suggestion that the Claimant could have taken evasive action and says there is no evidence from the Insured as to why she turned right despite the fact her view was obscured. The Claimant says that RF did not see the Claimant and was focused on maneuvering her vehicle through the gap in traffic. The submissions note the location of the accident is ‘a densely populated residential area not far from a busy public hospital’ and that there were likely to be pedestrians, cyclists and school children and other in the vicinity. With respect I have no evidence as to the number of cyclists that use the area although the photographs do show the presence of unit blocks in the area and I believe I can take ‘judicial notice’ of the proximity of the accident scene to St George Hospital.
29. I note the submissions suggest the accident occurred at 7.00am. I note that the police report and the Claimant’s application for personal injury benefits sets the time of the accidenty at 8.45.
My consideration of the issues
30. It is important to note (because the Claimant’s application for internal review suggests he may not appreciate the significance of it) that the Insurer has admitted ‘primary’ negligence that is the Insurer has admitted its driver was at fault and caused ABY’s accident and injuries.
31. As I noted at the outset there are two issues that I have to determine:
b. The amount or degree of any contributory negligence.
Should there be a finding of any contributory negligence?
32. The principles that apply in the determination of whether the Claimant is contributorily negligent at all are the same as those that determine the question of RF’s negligence. This requires the application of the general principles set out in s 5B Civil Liability Act. More particularly s 5R specifically provides that the standard to be applied in determining whether there is any contributory negligence is that of a reasonable person in the position of the Claimant on the basis of what he knew or ought to have known at the time. There is thus an objective test without regard to the subjective situation of the plaintiff.
33. The Insurer has referred me to the High Court intersection case of Sibley v Kais. The majority said in that decision:
34. While the Claimant is riding a bicyle, in my view the observations of the High Court are just as applicable to him. There is no evidence to suggest the Claimant slowed down or stopped before proceeding through the intersection. In my view a reasonable person in the position of the Claimant, approaching an intersection in a busy part of suburban Sydney at peak hour would have taken greater care when entering the intersection. I find therefore that the Claimant’s actions have contributed to the accident and his injuries.
What is the degree of the Claimant’s contribution?
35. The Claimant’s solicitor has correctly identified the test I must apply which is to consider the relative culpability of both ABY and RF in terms of the degree of the departure from the standard of care and the relative importance of their acts in causing the damage.
36. RF was not speeding, she was driving slowly, but she was driving in a built up area whether traffic was banked up to her right and to her left. She simply failed to see the Claimant. She should have considered the possibility of a bicycle or motor bike rider filtering beside the stationary traffic (even if it is prohibited by the road rules) and taken greater precautions and checked before turning and as she turned.
37. The Claimant on the other hand has not given me any evidence to suggest he took any precautionary measures before entering the intersection. He too should have taken care when entering the intersection and with banked up traffic he should have anticipated the prospect that someone may have wanted to turn right and ridden his bike at a speed which would have allowed him to stop or otherwise avoid the accident.
38. In my view RF’s departure from the standard of care of a reasonable driver is greater than the Claimant’s because they both should have been keeping a lookout and ABY saw RF, but she did not see him.
39. In terms of the relative importance of their acts in causing the accident and the damage I note that RF was driving a motor vehicle whereas ABY was riding a bicycle. While the car as a ‘lethal weapon’ argument may be losing favour with some judicial officers2 the difference between the two modes of transport continues to be relevant in that RF’s motor vehicle had the capacity to inflict more damage that ABY’s bicycle.
40. The Insurer has referred to a number of cases. I am mindful of the decision of Windeyer J in Teubner v Humble  HCA 11 and his warning at :
41. In my view other cases should be used as a guide only. All of the cases referred to by the Insurer are intersection collisions involving two motor vehicles (in one case there was a collision between car and motorcycle). None of them involve a collision between a bicyle and a car in a similar factual situation.
42. Having considered the facts and circusmtances of ABY’s particular case and the relative culpability of the parties, in my view a just and equitable apportionment of liability is 80% to RF and 20% to ABY.
Costs and disbursements
43. The matter that has been referred to me is a ‘regulated miscellaneous claims assessment matter’ under cl 3(2)(g) of Schedule 1 to the Motor Accidents Injuries Amendment Regulation 2017.
44. The Claimant makes an application for costs of the assessment of this dispute.
45. Clause 3(1) of Schedule 1 provides, ‘The maximum costs for legal services provided to a claimant ….. in connection with an assessment …. involving a dispute about a regulated miscellaneous claims assessment matter are $1,600.00 up to a maximum of $6,000 per claim.’ The amount of $1,600 has been increased to $1,633.00 in accordance with the Motor Accident Injuries Amendment (Indexation) Regulation 2018.
46. Two teleconferences have been held during the course of the assessment, on 14/11/18 and 29/1/19. The Claimant’s solicitor took a statement from the Claimant and prepared submissions. In my view the Claimant’s solicitor should be allowed the maximum amount of $1,633 to reflect the significant amount of work undertaken in this matter. To that should be added GST in the sum of $163.30.
Dispute Resolution Service 30 January 2019
2 See for example Gordon v Truong  NSWCA 97 and T & X Company Pty Ltd v Chivas  NSWCA 23