|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Statutory benefits – cessation of weekly payments - wholly or mostly at fault – fault of injured person – pedestrian – pedestrian crossing - contributory negligence – standard of care – reasonable person – proper lookout – legal costs|
Motor Accident Injuries Act 2017 (NSW) (“the Act”) s 3.28, 3.36, 3.37, 3.11, 4.17
T and X Company Pty Limited v Chivas  NSWCA 235
|Parties||ACI - Claimant|
NRMA Insurance Ltd - 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
|Insurer||Insurance Australia Limited A.B.N. 11 000 016 722 trading as NRMA Insurance Ltd|
|Date of Accident||2 May 2018|
|Insurer Claim Number||NWRTP180106601|
|Date of Internal Review||27 September 2018|
|DRS Decision Maker||Terence Stern|
|Date of Decision||6 December 2018|
The findings of the assessment of this dispute are 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.
- For the purposes of section 3.37 the Insurer is not entitled to refuse payment of statutory benefits.
- Effective Date: This determination takes effect on 6 December 2018.
- Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,760.00 inclusive of GST.
A brief statement of my reasons for this determination are attached to this certificate.
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Services
Dated: 6 December 2018
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) of the Motor Accident Injuries Act 2017, about whether the accident was wholly caused by the fault of the injured person.
1. The Claimant alleges that he was injured in a motor vehicle accident on 1 May 2018.
2. On 23 May 2018, he made a claim NWR2P180106601 for statutory benefits under the Motor Accident Injuries Act 2017 against Insurance Australia Limited ABN 11000016722 trading as NRMA Insurance.
3. The Insurer issued a Liability Notice for the payment of benefits up to 26 weeks on 7 June 2018.
4. On 21 August 2018, the Insurer issued a Liability Notice that, after 26 weeks from the date of the accident, it would deny liability for payment of statutory benefits on the basis that it considered the Claimant to be mostly at fault.
5. On 5 September 2018, the Claimant requested an Internal Review.
6. On 27 September 2018, the Insurer, having conducted an Internal Review, upheld the original decision.
7. The Claimant has, by its legal representative, lodged an application for resolution of this dispute by Dispute Resolution Service and the dispute has been referred to me.
8. The Claimant’s Statement
 Suffers from chronic obstructive pulmonary disease, hypertension and low blood platelet level count. Has been treated for psychological issues.
 On 11 May 2018, the weather was fine.
 At about 10:00am, decided to walk home from the shopping centre.
 Took his usual route home.
 Has walked that route on hundreds of occasions.
 Union Street is level and there is an unrestricted view.
 As he approached the pedestrian crossing, was walking at a slow and steady pace. Denies he “darted out” onto the crossing.
 Does not recall seeing a car approach. Presumes he was focused on the crossing. Took several paces out onto the crossing before feeling an impact on his right-hand side.
 Was diagnosed as having suffered multiple fractures.
9. Statement of ELB of 13 August 2018
 New born child in a capsule in the back. No other passengers.
 The weather was fine.
 At about 10:30am “of” 11:00am (sic, read ‘or’) was driving south on Union Street approaching the pedestrian crossing near the netball courts on the right.
 As ELB approached the pedestrian crossing she was about 20 metres away and was slowing down as there was a raised section of the crossing. She noticed an older male walking on the footpath on her right-hand side. He was walking south, towards the crossing, when all of a sudden he stepped out onto the roadway between 5 and 10 metres before the crossing on the north side and out across the road. He was not on the crossing at that time and walked across the road in front of the crossing. At the same time, she saw a silver coloured vehicle enter the crossing from the opposite side. It did not look like it was going fast. Then saw that vehicle impact with a pedestrian and he rolled up over the bonnet and onto the roadway.
 The pedestrian stepped straight out onto the roadway without stopping or looking or checking for oncoming traffic. He was not on the pedestrian crossing at all and was some metres in front of it. The driver of the vehicle had no time to see the pedestrian.
10. Statement of PVW of 14 June 2018
 On 2 May 2018, in the morning was going to Marketown Shopping Centre Newcastle West. The weather was fine.
 Was driving north along Union Street towards Parry Street.
 There is a pedestrian crossing adjacent to the netball courts where the concrete verge of the crossing juts out into part of the roadway and then the crossing is raised.
 Approached the crossing in a northerly direction at about 40 kmph and began to slow down for the speed hump. There was no vehicle in front or behind.
 Looked to the left and right of the crossing to see if anybody was about to cross and could not see anybody. Was braking as was slowing down and all of a sudden saw a figure in front to the left-hand side. Was travelling at less than 20 km per hour and immediately hit the brakes however was not able to stop.
11. Statement taken from the driver PVW and recorded at page 52-55 of the Police Notebook:
12. Statement taken from the Claimant and recorded on pages 82-5 in the Police Notebook:
“At about 9:00am on the 2 May 2018 I walked from my home…to [the] shopping centre. I left the shops at 9:45am and then walked down Union Street towards the Junction. As I got to the pedestrian crossing at the netball courts I started to cross when a car hit me on my right.”
13. In answer to the question ‘did you stop at the crossing before you started to walk across?’ the Claimant answered “no, I just walked and I thought the cars would stop”.
14. In answer to the question ‘did you notice any cars nearby?’ the Claimant answered “no I did not even look, I just walked straight onto the crossing”.
15. Statement in the Police Notebook pages 87-90:
The Submission of the Claimant
16. I briefly summarise the Submissions at A10:
 The approach to the pedestrian crossing has excellent visibility either way. Photographs indicate the driver should have seen the pedestrian crossing from several hundred metres away. A pedestrian crossing is to provide a safe place to cross where motorists must stop.
 Section 81 of the NSW Road Rules 2014 provides:
“Driver approaching the pedestrian crossing must drive at a speed at which the driver can, if necessary, stop safely before the crossing.”
 Section 81(2) states:
“The driver must give way to any pedestrian on a pedestrian crossing.”
 Little doubt that the Claimant was on the pedestrian crossing at the point of impact. PVW, the driver, indicated to the police that upon impact he stopped immediately on top of the crossing itself before getting out and observing the Claimant on the road.
 The Statement of ELB is inconsistent with versions of the Claimant and PVW.
 The Claimant admits he approached the pedestrian crossing at an angle simply because of the way the footpath curved outwards upon approach to the crossing. It should be accepted that the Claimant was on the crossing at the point of impact, rather than cutting across the road prior to the crossing. Any suggestion the Claimant “darted straight out from the side of the road” is also difficult to accept given the Claimant’s medical conditions.
 Conceded that the Claimant has no recollection of seeing the vehicle approach. Nevertheless, he is entitled to have a reasonable expectation that an approaching driver would give way.
 The Submission refers to case law and submits there should be no deduction for contributory negligence or, alternatively, well below 61%.
17. The Insurer’s Submissions
[18-19] Refers to the Statement of the insured driver.
 Refers to the Statement of T referred to above.
 The driver and the independent witnesses T and TB provide a consistent version of events, that the driver had slowed down as he was entering (or already on) the pedestrian crossing and the Claimant suddenly stepped out onto the roadway and into the path of the insured driver’s vehicle.
 T and TB are independent and objective.
 T and TB both say the Claimant did not stop to check before stepping off the road. T observed that the Claimant stepped out onto the roadway between 5-10 metres prior to the crossing. According to the independent witnesses, the driver could not have seen the Claimant.
 The Claimant admitted to the policeman that he did not stop at the crossing or even look prior to crossing the road.
 The damage to the insured vehicle was to the right passenger mirror and passenger windscreen consistent with the Claimant walking from the left into the path of the vehicle.
 Refers to T and X Company Pty Limited v Chivas  NSWCA 235 and the Statement by Basten JA at para 54 as to personal responsibility to the effect that both the pedestrian and the driver should be equally conscious of the need for care, by the driver taking greater care for the pedestrian and the pedestrian taking greater care for his or her own safety.
 Refers to Boral Bricks Pty Ltd v Cosmidis (No 2)  NSWCA 139/not necessary to compare the harm. The court is to look at the respective carelessness of both parties.
 The driver may have breached his duty of care by failing to observe the Claimant earlier.
 Any finding of negligence on the driver’s part would be minimal in the circumstances.
 No evidence that this was a busy road.
 A reasonable person in the Claimant’s position would not have chosen to cross a pedestrian crossing without first checking that it was safe.
18. In making my decision/conducting my review I have considered the following legislation and guidelines:
ii. Motor Accident Injuries Regulation 2017
iii. Motor Accident Injuries Regulation 2017
iv. Motor Accident Guidelines 2017
v. Civil Liability Act 2002 s 5B:
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Maximum penalty: 20 penalty units.
"Pedestrian crossing" is defined in subrule (3).
(2) A driver must give way to any pedestrian on a pedestrian crossing.
Maximum penalty: 20 penalty units.
Note : For this rule, "give way" means the driver must slow down and, if necessary, stop to avoid a collision--see the definition in the Dictionary.
(3) A "pedestrian crossing" is an area of a road:
(ii) are of approximately the same length, and
(iii) are approximately parallel to each other, and
(iv) are in a row that extends completely, or partly, across the road, and
(ii) alternating flashing twin yellow lights.
Note 2 : Rule 322 (3) and (4) deal with the meaning of a traffic sign a place.
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if:
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section.
(3) The damages recoverable in respect of the motor accident are to be reduced on account of contributory negligence by such percentage as the court or claims assessor thinks just and equitable in the circumstances of the case unless subsection (4) requires that the damages be reduced by a fixed percentage. The court or claims assessor must state the reasons for determining the particular percentage.
(4) The regulations may fix the percentage by which damages are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured or deceased person. Damages recoverable in respect of a motor accident that are to be reduced on account of contributory negligence attributable to any such conduct are to be reduced by that fixed percentage.
(6) This section does not exclude any other ground on which a finding of contributory negligence may be made.
19. In T & X Company Pty Ltd v Chivas  NSWCA 235 Basten JA (with Barrett JA agreeing) said -:
… Some may be expected to anticipate how drivers will behave… but others whether because they do not drive or because they have a disability… may face greater risks. A driver who fails to take the variability of such circumstances into account, when faced with persons crossing the street against lights or otherwise unwisely, fails to take reasonable care in the handling of a motor vehicle.”’
 In applying the principles set out in s 5B of the Civil Liability Act (NSW), it is necessary in assessing the precautions a reasonable driver would take to consider the likely seriousness of the harm which might eventuate from a collision with a pedestrian and the burden of taking precautions to avoid the risk of harm, that was in the present case by slowing down.”
20. His Honour continued at  referring to the trial judge:
21. His Honour then at  went on to identify the relevant legal principles referred to in s 5R of the Civil Liability Act 2002.
22. His Honour then referred to the decision in Podrebersek v Australia Iron and Steel Pty Ltd 59 ALJR 492 at :
23. His Honour then referred to what Handley JA said in Talbert-Butt v Holloway (1990) 12 MVR 70 at :
24. His Honour then said  that caution was necessary with respect to authorities pre-dating the Civil Liability Act 2002.
25. His Honour continued  to state that there were difficulties in applying the same legal principles in determining the negligence of the defendant and whether the injured party was contributorily negligent in failing to take precautions against the risk of harm.
26. His Honour then said at :
27. His Honour then said at :
28. His Honour then said at :
29. In Boral Bricks Pty Limited v Cosmidis (No 2)  NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act at paragraph  – :
 A purposive approach to the operation of s 5R (s 5B) requires that this approach be adopted…”
30. McColl JA would have assessed contributory negligence at 10% (as against 30% from the majority) said :
31. Again at  her Honour referred to s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) which provides:
32. Her Honour continues  that s 9 is also part of the enacted law as to contributory negligence captured by s 138(1).
33. Her Honour concluded :
34. In Rachel Beyer v Lillian Jean Gehue  NSWDC 62 at , Hatzistergos DCJ referred to the decision of Warth v Lafsky  NSWCA 94 in which McColl JA said at :-
[applied in Nettleton v Rondeau  NSWSC 903]
35. His Honour then [at 70] referred to Hoeben JA’s judgment from Nominal Defendant v Ross  NSWCA 212 :
36. His Honour then [at 70] referred to the Court of Appeal decision in Hawthorne v Hillcoat  NSWCA 340 per Hodgson JA (with whom Ipp JA and Gyles AJA agreed):
37. His Honour then [at 72] referred to the decision in T and X Company Pty Limited v Chivas referred to above.
38. I review the evidence of the Claimant’s account:
ii. “Followed the curvature of the gutter.” On the balance of probabilities, this is probably what happened and I accept the Claimant on that point.
iii. “Cannot specifically recall seeing a car approach…was focused upon the crossing.” This again is probably exactly what happened. If the Claimant had seen the car (being focused on the crossing) he would not have stepped onto the crossing.
39. I review the evidence of ELB:
ii. “He was not on the crossing at that time and walked across the road in front of the crossing.” I accept that ELB is probably correct in her recollection on this observation.
40. I review the evidence of PVW:
ii. Was travelling at about 40kph and began to slow down for the speed hump.
iii.There were large trees near the crossing with overhanging branches causing shade to the left-hand side of the roadway.
iv. Looked to the left and right of the crossing to see if there was anybody about to cross.
v. Could not see anybody.
vi. Was breaking and slowing down (for the speed hump).
vii. Saw a figure in front of me to the left hand side.viii. Was travelling at less than 20kph.
41. I conclude from the above that the driver probably did not see the Claimant, who obviously was there and was to be seen had the driver kept a proper lookout. He did not keep a proper lookout at all, or at least not until about a meter before the crossing.
42. I consider it unlikely that the driver looked to the left and right of the crossing to see if anyone was about to cross. I find this unlikely because if the driver had looked, he would have seen the Claimant who was close to the crossing well before he stepped on to it.
43. I note that the driver is recorded at page 52-55 of the Police Notebook as having said the following:
44. I review the evidence of TB:
ii. Saw a male walking along the footpath towards me.
iii. He turned suddenly and walked onto the crossing without stopping to look.
iv. He walked right in front of the vehicle.
45. In considering the degree of negligence of the Claimant, one is required to take into account what a reasonable person in his position would have done. He was a person, though only in his 60s, who was very unwell with end stage renal disease and requiring dialysis twice daily. He had other major medical problems.
46. As a matter of common sense, a reasonable person in his position may be expected not to have had the same degree of focus and concentration as a healthy person.
47. The Claimant did not keep a proper lookout before he stepped onto the roadway. He probably was not on the crossing but near the crossing.
48. The insured driver failed to keep any or any proper lookout because he did not see the Claimant at all or not until about 1 metre before the crossing. He was there to be seen. When a driver sees a person walking close to a pedestrian crossing, there are three possibilities:
(b) he will continue to walk on; or
(c) he will wait until the vehicle has passed.
49. A reasonably careful driver will keep a proper lookout and take into account the possibility that the person may step onto the crossing without having kept a proper lookout.
50. The accounts of the independent witnesses are probably correct except that estimates of speed and distance are subjective and difficult to make when one is driving as one is, after all, concentrating on the task of driving, and likely to be only approximate.
51. Taking all matters into consideration, I conclude:
ii. the Claimant was not wholly at fault;
iii. would it be just and equitable to consider the Claimant wholly at fault in terms of contributory negligence or having contributed by more than 61%? I answer this question in the negative;
iv. without determining the precise degree of contributory negligence of the Claimant, I find that it is more likely that each of the Claimant and the insured driver were negligent to the extent of about 50%.
Costs and Disbursements
52. I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the Claimant’s costs at $1,600.00 to which GST is added (under cl 35 of the Regulation) making the total awarded for costs $1,760.00 inclusive of GST.
Terence L Stern
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Service
Dated: 6 December 2018