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ACB v NRMA Insurance Ltd [2019] NSWDRS CA 054

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits - cessation of weekly payments - wholly or mostly by the fault of the injured person - motorcycle - pillion passenger - standard of care - reasonable person - contributory negligence - legal costs
Legislation citedMotor Accidents Injury Act (NSW) s 3.11, 3.28
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017
Interpretation Act 1987 (NSW) s 5R
Cases citedT & Co Pty Ltd v Chivas (2014) 67 MVR 297
Boral Brick Pty Ltd v Cosmidis (No 2) (2014) NSWCA 139
Text citedN/A
Parties ACB - Claimant
NRMA Insurance 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 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

ClaimantACB
InsurerNRMA Insurance Limited
Date of Accident10 March 2018
DRS Reference10053063
Insurance Claim NumberNWRTP180057701
Date of Internal Review18 September 2018
DRS Claims Assessor David R Ford
Date of Decision20 March 2019
Conference date and time21 February 2019 at 2:00 PM
Conference venue and locationLevel 21, 1 Oxford Street, Darlinghurst
Attendances for ClaimantMr John Keesing, Counsel
Mr Khanh Ton, Solicitor
Ms Katrina Lam, Law Graduate
Claimant
Attendances for InsurerMr John Guihot Counsel
Ms Mei Khoo Solicitor

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 wholly or mostly by the fault of the injured person.
  3. Effective Date: This determination takes effect on 20 March 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 ACB, the Claimant, and NRMA Insurance Limited, the Insurer, with respect to the payment of statutory benefits, pursuant to Sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).

2. The Insurer undertook an Internal Review and a Statement of Reasons is attached to the Application form (document A14) and is dated 18 September 2018.

3. ACB seeks to challenge that determination.

4. On 10 March 2018 at approximately 9:15 pm, the Claimant was a pillion passenger on a Honda CBR1000 motorcycle being driven by PN.

5. Both ACB and PN had been visiting friends at premises at Canley Heights.

6. After visiting their friends for dinner and drinks, they decided to leave the premises and return home.

7. PN gave a statement dated 28 May 2018 in which he states at paragraph 34 the following:-

“At about 9:15 pm I rode off from our friend’s place.  My bike was parked outside number 10.  ACB sat on the rear of my bike and held onto my waist and not the bike.”

8. It then transpired PN rode the bike up the street for about 40 metres and then completed a u-turn as he needed to ride in the opposite direction.  He further states at paragraph 38:-

“38.  After completing the u-turn I was about 15m before no. 10, I changed from first to second gear.  At this point, I would have been travelling at about 40-50 km/h.

39.  During this time, I could tell she was still holding around my waist.
40.  Immediately after changing to second gear I felt ACB’s hand slip from around my waste (sic) and fall off the bike.  I could tell she had fallen off the bike.”

9. As a consequence of falling off the motorcycle, ACB sustained serious injuries.

10. The Insurer undertook an Internal Review and in their Statement of Reasons (document A14)  dated 18 September 2018, the Insurer considered the Claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under Sections 3.11 and 3.28 were ceased.

11. The Claimant submits she was neither mostly or wholly at fault in the motor accident, and she is entitled to a continuation of statutory benefits.  She has now filed this Application seeking a determination of the dispute with the Insurer.

Documents considered

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

13. At the Assessment Conference I was provided with photographs of the same make of motorcycle being the Honda CBR1000.

Insurer submissions

14. The Insurer has provided detailed submissions (document R1) dated 2 November 2018.

15. The Insurer states the Claimant in her Application for Personal Injuries Benefits (document A1), provided the following version of events:-

“We were leaving friends place after dinner & drinks around 9-9:15pm.  I was passenger on motorbike.  We rode off the driveway & went left.  The driver u-turned to go the other direction.  I was holding on but as we passed my friends house (motorbike is still at a moving pace) I waved bye as we passed the house & at the exact time not aware that the driver changed gear ? or speed ? to ride off.  I was not advised or the driver did not indicate to me that he was going to increase speed.  I fell & went flying off the bike.”

16. Furthermore, the Insurer referred to the statement made by the Claimant on 25 May 2018 (document R9) which provided the following detail regarding the circumstances of the accident.

“16.  I had been a passenger on PN’s motorcycle for the previous 2-3 weeks quite often as we had just met.  Prior to meeting PN, I had not been on a motorcycle for many years but was aware of how to be a passenger on a motor cycle.

17.  The motorcycle was parked out the front of our friend’s house.  PN needed to go in the opposite direction of where the bike was facing so he needed to do a u-turn.  We rode up the street past a few houses and completed a u-turn.

18.  Prior to going past my friend’s house at number 10, we were only rolling and travelling about 5km/h.  At this time, I was going to wave and say goodbye to my friends again but my hands were still around PN’s waist.  Suddenly the bike accelerated and I lost my grip around PN’s waist.  At the time I was holding onto PN and not the bike.

19.  As a result, I lost hold of PN and was thrown to the road.  I don’t know what the speed he was going prior to me falling off.”

17. The Insurer then referred to the statement of insured driver of the motorcycle, Mr PN (document R9).  The Insurer referred to the following paragraphs:-

34. At about 9:15pm I rode off from our friend’s place.  My bike was parked outside number 10.  ACB sat at the rear of my bike and held onto my waist not the bike

37.  I rode up the street for about 40m before completing a u-turn and I needed to go the opposite direction.  I am unsure of the direction as I am not familiar with the area.

38.  After completing the u-turn I was about 15m before no. 10.  I changed from first to second gear.  At this point I would have been travelling at about 40-50 km/h.

39.  During this time, I could tell she was still holding around my waist.

40.  Immediately after change to second gear I felt ACB’s hands slip from around my waist and fall off the bike.  I could tell she had fallen off the bike.”

18. The Insurer then submits in paragraph 15 of their submissions, based upon the statements provided by the Claimant and PN, it appears the Claimant had fallen from the pillion passenger position of the motorcycle as she has lost her grip whilst the motorcycle was accelerating.

19. With the regard to the allegation of contributory negligence of the Claimant, the Insurer submits the Insurer has submits the Claimant has contributed greater than 61% to the motor vehicle accident.  The Insurer refers to the decision of T & X Co Pty Ltd v Chivas (2014) 67 MVR 297, where His Honour, Justice Basten commented on section 5R of the Civil Liability Act 2002 by expressing the opinion that ‘people are to take responsibility for their own lives and safety’.

20. The Insurer also refers to the decision of Boral Brick Pty Ltd v Cosmidis (No 2) (2014) NSWCA 139, where Justice Basten stated when weighing up the culpability of parties involved, it is not necessary to compare the harm that has been caused by the parties, rather, a court is to look at the respective carelessness of both parties.

21. Counsel for the Insurer also submitted that when deciding whether the Claimant was guilty of contributory negligence, I must have regard to the standard of care as set out in Section 5R of the Civil Liability Act, which states as follows:-

a. The standard of care required of the person who suffered harm is of a reasonable person who is in a position of that person,

b. The matter is to be determined on the basis of what that person knew or ought to have known at the time.

22. The Insurer submits the Claimant had a primary responsibility to take care for her own life and safety.

23. The Insurer also notes the submission of the Claimant where it is alleged the primary cause of the Claimant’s fall from the motorcycle was the “acceleration” of the motorcycle.

24. The Insurer submits a reasonable person would ensure that their grip was secure and sufficient enough to maintain their position on the motorcycle in anticipation of this acceleration.

25. The Insurer states the Claimant had failed to do so, either by removing one or both hands, or not holding onto PN securely enough and accordingly, has failed in her duty to herself.

26. It is submitted relying on the decision Boral Brick Pty Ltd v Cosmidis (No 2) (2014) NSWCA 139, that the Claimant had great culpability than PN in her carelessness.  The Insurer submits PN was not as careless in his acceleration of the vehicle, as this was the intended use, rather, ACB was more careless in her actions.

Claimant submissions

27. I refer to the submissions lodged on behalf of the Claimant (document A15), dated 11 October 2018.  References are again made to the statement of PN (document A9), dated 28 May 2018.  I have already made reference to relevant parts of this statement.  In particular, I also note paragraph 62, which states as follows:-

“62. I don’t believe ACB was waving to her friends at the time of the accident.  I believe she had plans to waive (sic) however both hands came off my waist at the same time when she fell off the bike.  I feel I would have felt only one hand release in grip if she was going to waive (sic) at her friends.  She also fell off before we reached the house.”

28. I also note the submission at paragraph 11, which states as follows:-

“11.  The rider of the motorcycle has a secure grip on the motorcycle as his right hand grips the handle bar and operates the accelerator and the front brake while his left hand grips the handle bar and operates the clutch.  A pillion passenger’s security on a motorcycle is more tenuous as the pillion must hang on to the rider (who does not have handle bars or grips).  This is well known to all motorcycle riders who carry pillions.  It is also well known to all experienced motorcycle riders that sudden acceleration can brake (sic) the grip of a pillion.  Furthermore, if the motorcyclist believes the pillion is about to wave he should not suddenly accelerate.  Indeed, if a motorcycle is driven smoothly and not suddenly accelerated a pillion need not hang on.”

29. I further refer to the submission in paragraph 17:-

“17.  It is apparent when reviewing all of these descriptions of the accident that it is the sudden movement of the bike which causes her to fall off.  The controversy concerns as to what she was actually doing at the time she fell off.  Three possibilities are in existence.  The first is that she was holding on with both hands but was in the process of releasing her right hand to wave.  The second of these is that she was holding on to the driver with her left hand whilst in the process of beginning to wave.  The third which is assumed by the CTP insurer in its review is the most unlikely.  It is, in order to wave with her right hand, she has released both hands (somehow unknown to the driver of the bike) as the bike has accelerated (probably rapidly).  The last is the most unlikely because it has little evidential support and defies life’s experience and common sense.  To wave goodbye in all circumstances not only when a pillion passenger on a bike, people use one hand and it is likely that the other hand remains in position (around the driver’s waist).”

30. I further note paragraph 18 of the submission:-

“18.  The cause of the accident is the sudden and unexpected acceleration of the motorcycle.  In this sudden acceleration the driver is in breach of his duty of care to the pillion passenger.”

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)

Assement Conference - 21 February 2019

32. At the Assessment Conference on 21 February 2019, the Claimant was questioned at length by her Counsel and Counsel for the Insurer.

33. When questioned by her Counsel, the Claimant admitted that she “wanted to say goodbye to her friends” and intended to “wave goodbye and wave with her right hand.”  At all times, she stated her left hand was around the driver’s stomach.  She said the motorbike just prior to her falling off was “rolling” but was increasing speed.  She then said the bike “jolted when it accelerated.”  She also stated that when PN was accelerating the bike she had both arms around his waist.

Questioning of PN

34. PN, in accordance with the arrangements made prior to the Assessment Conference, was questioned by telephone.  Under questioning by Counsel for the Claimant, he said that when he changed into second gear, there was a “jolt in the bike.”  He felt the bike was travelling at a speed between 40-50 km per hour.  He classed this particular bike as a “super bike” which red lines at 12,000 rpm.  He said that when he accelerated the bike, there was a sudden jolt.  He said the bike “kicked” and this meant it accelerated or changed speed.  He further stated that the change of speed which caused her to fall.

35. When he was questioned by Counsel for the Insurer, he stated that he had not changed his version of the accident to help the Claimant’s case.

36. The Claimant was also referred to the hospital records of Liverpool Hospital where (document A5) it states as follows:-

“Fell backward off motorbike last night, was a passenger and was waving to friends when partner took off.”

37. PN was questioned in relation to the interview of PN by the police, which is referred to as attachment 2 in the Reply and headed “Record of Interview between Shane Darlington and Leading Senior Constable Glen Dawson”.

38. PN confirmed this interview took place at the Claimant’s home and he was present at that time.

39. When questioned by Counsel for the Claimant, PN stated that when the police interviewed him, he was intoxicated and that he had ‘signed the statement in anger.”

40. PN said that prior to the Claimant falling from the motorbike, he said her hands were in the front of “my belly”.  He did not feel the Claimant’s hand lose grip.  Furthermore, he said “at the end of my gear change, I felt her arms leave my waist”.

Reasons

Was ACB wholly at fault in causing her accident?

41. I find the Claimant, prior to falling off the motorcycle, did have the intention to wave “goodbye and wave with her right hand”.

42. I also accept that prior to falling off the motorcycle, the motorcycle was travelling at a “rolling” speed and was not accelerating quickly but was increasing in speed.

43.  accept the statements made by PN at the Assessment Conference, that there was a “jolt in the bike” when he changed into second gear, and this change of speed and jolting action caused the Claimant to be thrown from the motorcycle.

44. I found just immediately prior to the Claimant falling off the motorcycle, that she still had her hands around the waist of PN, but because she had the intention of waving to the friends, she had released the grip of her right hand around the waist of PN.  I accept PN is truthful when he states the Claimant’s hands were “in front of my belly.”

45. The Claimant during questioning at the Assessment Conference became upset at times when trying to remember exact details of the circumstances surrounding the accident.  She suffered serious injuries in this accident, and I accept she has been traumatised as a consequence.  There is no doubt the entire incident, being the moment the motorcycle jolted into second gear and the Claimant falling from the motorcycle would have taken place in a fraction of a second.  This is confirmed in the statement made by the Claimant in her Application for Personal injury Benefits, where she states, inter alia, “I fell and went flying off the bike.”  If it had been a slow process, she may been able to hold onto the waist of PN.

46. I therefore find PN negligent in the driving of the motorcycle, in that he is in control of the motorcycle with a powerful engine and when carrying a pillion passenger on the motorcycle, especially at low speed, should ensure the changing of gears is done smoothly and not in the fashion which causes the motorcycle to jolt and in the circumstances of this case dislodge a pillion passenger.

47. I therefore find ACB was not wholly at fault in causing the accident.

Was the motor accident caused mostly by the fault of Ms ACB?

48. The onus of proving contributory negligence rests upon the Insurer.

49. In deciding whether ACB 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.

50. As stated above, I have determined ACB did loosen the grip of her right hand which was around the waist of PN.  I note ACB had only been seeing PN for several weeks prior to this accident but she had travelled on the motorcycle on several occasions and indeed travelled at speed along the M7 Motorway several times with PN.

51. ACB would have been aware of the fact the motorcycle was powerful and also would have been aware of its acceleration capabilities.

52. Neither ACB nor PN mentioned any prior incidents on the motorcycle which may have caused some concern regarding her ability to ride as a pillion passenger, and I note ACB many years prior to meeting PN, had ridden as a pillion passenger on motorcycles.

53. I find ACB should have, at all times had a secure grip around the waist of PN when travelling on this motorcycle and the fact she loosened the grip of her right hand around his waist, was an unwise decision on her part and in this regard I find she is guilty of contributory negligence in failing to have a secure hold around PN’s waist at all times, but I do not find her contributory negligence was greater than 61%.  The action by PN in changing the motorcycle into second gear with a jolt, would not have been anticipated by ACB in the circumstances; and since I find the motorcycle was at rolling speed but slowly accelerating, it is for this reason I do not find ACB’s negligence greater than the 61% alleged by the Insurer.

54. At the commencement of the General Assessment Conference, both legal representatives requested that I do not make an assessment of contributory negligence.  I will therefore comply with their request.

Findings

55. Therefore, I find the accident of 10 March 2018 was not caused wholly by the fault of ACB.

56. I also find the accident of 10 March 2018 was not caused mostly by the fault of ACB.

Costs and disbursements

57. There is no issue that the Claimant, is successful, 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:

58. For the purposes of section 3.11 and 3.28 the motor accident was caused by the fault of another person.

59. For the purposes of section 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.

60. Effective Date: This determination takes effect on 20 March 2019.

61. Legal Costs: The amount of the Claimant’s legal 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