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ACM v QBE Insurance (Australia) Limited [2018] NSWDRS CA 065

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords PAWE – weekly payments – statutory income support benefits – pre-accident weekly earnings – contributory negligence – police officer statement – witnesses – collision at intersection – motorcycle – traffic phasing patterns – yellow light – CCTV footage
Legislation cited Motor Accidents Injury Act (NSW) ss 3.38, 7.36, Schedule 2
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018
Cases cited Teubner v Humble [1963] HCA 11
Text cited N/A
Parties ACM - 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

View the 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

ClaimantACM
InsurerQBE Insurance (Australia) Limited
Date of Accident15 May 2018
DRS Reference10059972
DRS Decision MakerClaims Assessor Belinda Cassidy
Date of Decision18 December 2019

The findings of this assessment are:

  1. For the purposes of section 3.38, the Insurer is entitled to reduce the weekly statutory benefits payable for any period of loss of earnings or earning capacity for the period beyond the first 26 weeks after the motor accident for the Claimant’s contributory negligence.
  2. The amount of contributory negligence assessed and therefore the amount of the reduction is 20%.

Belinda Cassidy
Claims Assessor
Dispute Resolution Services

Reasons for decision

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

Introduction

Background

1. ACM was injured in a collision at the intersection of Smith Street (which becomes Wilde Avenue) and Phillip Street at Paramatta in the evening  of 15 May 2018.

2. ACM was riding a motor cycle and QBE’s insured was driving a black Hyundai Hatch.

3.  A collision occurred in the intersection and ACM was thrown from her motor cycle.

4. QBE accept that QBE’s insured was at fault and that his negligent driving caused the accident that injured ACM however QBE allege that ACM contributed to the accident and that her statutory income support benefits should be reduced, in accordance with s 3.38 of the Motor Accident Injuries Act, by 40% for her contributory negligence.

5. ACM disputed this and the dispute was allocated to me for assessment.

6. I held a teleconference on 5 December 2018 with Mr Manivong from the Insurer and ACM and made directions and requested the parties attempt to resolve the dispute.

7. While ACM in her most recent submissions now concedes there should be a finding of contributory negligence made against her, she says her statutory income support benefits should only be reduced by 10% for her contributory negligence.

8. The parties have been unable to resolve the issue of the degree of contributory negligence which is the only issue I must now determine.

The scene of the accident

Diagram from the investigators report

9. The diagram comes from the Insurer’s investigator’s report but it has been coloured in by me. While the general term ‘intersection’ covers the blue, pink and yellow parts of the roadway much of the Claimant’s submissions have dwelt upon who was where and when with some confusion in terminology in respect of the parts of the intersection. I will adopt the following terminology in these reasons to assist in clearly explaining my reasons:

a.      Vehicle stopping zone – shaded in blue;
b.      Pedestrian zone – shaded in pink; and
c.      The intersection zone – shaded in yellow

10. There is no dispute that QBE’s insured was stationary in Wilde Avenue waiting to turn right into Phillip Street. It is also not disputed that the Claimant was on her motorbike travelling north in the middle lane of Smith Street intending to drive straight ahead.

11. It is also not disputed that there was a car behind QBE’s insured and the two occupants of that car (JB and KW) have provided statements to the police and those statements are documented in the police officer’s statement (attachment 2 to the Verifact report).

12. It is also not disputed that the speed limit in the area is 50 kms per hour, that the accident occurred at night and that the intersection was lit.

Documentation

13. I have considered the documents provided in the application and the reply and the following additional information provided by the parties:

a.  QBE has provided a copy of CCTV footage taken from a public bus that was stationary at the intersection in the lane closest to the footpath on Smith Street facing north. This footage is telling as it captures an uninterrupted view of the accident as it happened;

b.  The Verifact report;
c.  The original liability notice issued by QBE on 6 September 2018;
d.  The Insurer’s further submissions sent by email on 13 December 2018;
e.  The Claimant’s submissions sent by email on 17 December 2018; and
f.   The Claimant’s additional submissions received by me on 18 December 2018.

14. The Insurer’s investigator’s repot (the Verifact report) is dated 9 August 2018. It is not referred to in either the Insurer’s original decision or the internal review decision although one of the attachements to the Verifact report was attached to the internal review decision. It appears the material in this report was considered by the Insurer when making its internal review decision.

15. The Verifact report is thorough and comprehensive and contains statements from the attending police officer (and his statement includes statements from the witnesses, the Claimant and the Insured), the Insured, the traffic phasing pattern of the lights at the intersection along with plans and photographs of the accident location.

16. The CCTV footage was referred to in the Insurer’s original liability decision (dated 6 September 2018). In a complaint made against QBE by the Claimant (contained in her submissions attached to the DRS application form) ACM says she had to ask for that footage it was not pro-actively provided to her.

Insurer's submissions

Original liability letter

17. In the Insurer’s original liability decision, Ms Lhing Vaiphei, case manager, admitted that QBE’s insured was ‘partly at fault’ but that the Claimant has contributed to her injuries ‘by failing to take care of your own safety by attempting to cross the intersection on a yellow light instaead of attempting to stop or slow down’.

Internal review decision

18. The Claimant sought an internal review of this decision and on 3 October 2018 Ms Shannon Martin affirmed the original decision said:

… I have concluded that you also had a duty to exercise a certain statndard of care as a road user and that your actions departed from that duty. While QBE’s insured driver had the primary obligation to give way, your decision to enter the intersection, on a late yellow light, when it was not safe to do so, was also a contributing factor in the accient. You failed to take reasonable care for you own safety, failed to drive safely in all the circumstances and failed to take reasonable steps to avoid an accident.

19. The internal review decision refers to a phasing pattern of lights and estimates time frames in which the Claimant could have reacted. It also refers to the Road Rules and says:

Our insured driver had the right to leave the intersection and you had a duty to slow down to a stop when approaching the yellow light. Your action to proceed through the yellow light when it was unsafe to do so contributed to the accident.

20. ACM referred the Insurer’s internal review decision to DRS for determination on or about 31 October 2018.

Submissions to DRS

21. The Insurer lodged a reply form with DRS on 16 November 2018 saying:

ACM was distracted watching a car that changed lanes in front of her and changed lanes to pass that car, looked up and saw the light was yellow, continued through the intersection and failing to take reasonable care for her own safety, failed to drive safely in the circustmances and failed to take reasonable steps to avoid a collision.

It is not disputed that QBE’s insured driver owned [sic] a duty of care and that they breached that duty, however it is concluded that ACM‘s decision to enter the interseton on a late yellow light, when it was not safe to do so, was also a contributing factor in the accident …

22. The Insurer lodged further submissions on 13 December 2018. These submissions again refer to the traffic phasing patters, the statements from the witnesses and driver and the Road Rules. The Insurer refers to a High Court case and Court of Appeal case which state that a breach of the Road Rules alone is not sufficient to determine whether a duty of care has been breached or whether a finding of contributory negligence must be made.

23. I had asked the Insurer, at the teleconference, to identify for me what evidence the Insurer relied on to assert as it had in the reply form that ‘ACM was distracted’. The Claimant, at the teleconference denied every saying to anyone that she had been distracted. There is nothing in the Insurer’s further submissions addressing the issue of whether the Claimant was distracted.

24. The Insurer’s submissions refer to three cases involving collisions at intersections where findings of contributory negligence were made. While these are useful as a guide, I should restate the warning issued by Justice Windeyer in the case of Teubner v Humble [1963] HCA 11 at [8]:

But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence.

25. The Insurer restates its consession that its insured driver breached his duty of care owed to ACM but that the Claimant had a duty to take reasonable care for her own safety and did not do so.  The Insurer restated its assessment of contributory negligence at 40%.

Claimant's submissions

Submissions with application

26. The Claimant’s submissions attached to her application form contain a number of complaints concerning QBE’s claims handling in particular delay in payment of lost income, no payment of parking at hospital for rehabilitation and non-payment of treatment and rehabilitation expenses. I have no jurisdiction or power to deal with these complaints. Although disputes about treatment and payment of treatment expenses are matters which the Dispute Resolution Service can determine, I have not been allocated these disputes to determine.

27. ACM’s submission says that ‘my memory of the accident has been compromised’. ACM indicated that she had no memory leading up to the accident and what she told the police was wrong and she must have been confusin the day of the accident with some other say.

28. She has analysed the CCTV footage and included screen shots from that footage. At the first teleconference I asked the Insurer’s representative whether he had any objection to the material in ACM’s submissions concerning speed and time and distance noting that these were things regularly reported on by accident reconstruction experts. I was advised there was no objection.

29. ACM’s analysis of the screen shots in her submmissions:

a. ACM’s motor cycle had not entered the intersection zone when the lights turned from orange to red and that she has entered into the intersection zone on the red light;

b.  There was a car in front of ACM which proceeded through the intersection in front of her;
c.  QBE’s insured’s blinker lights were not on when he turned in front of her;
d.  QBE’s insured’s brake lights did not illuminate until he was just over the pedestrian zone in Phillip Street ;
e.  ACM reacted to QBE’s insured’s presence in her path by turning to the right;
f.  By analysising the distance travelled and the time involved (according to the CCTV footage), ACM estimates she was travelling at 36 kms per hour as she approached the intersection (below the limit of 50 kms per hour).

Further submissions

30.  ACM provided a response to the Insurer’s submissions and says:

a.   Her view of the lights would have been impeded by the bus;

b.  She cannot ‘testify to anything to do with this [her view of the intersection] because I do not remember anything around me from this period of time’;
c.   QBE’s insured was not in the intersection zone when ACM made the decision to enter the intersection;
d.   The three cases cited by QBE do not relate to her incident;
e.   She had only 1.5 second to react;
f.    QBE’s insured did not see her although her lights were on;
g.   QBE’s insured crept into the intersection;
h.   QBE’s insured turned on the red signal not the orange signal;
i.    The collision occurred while QBE’s insured was still turning and when he was directly in front of ACM’s lane;
j.    QBE do not answer her allegation that QBE’s insured di not activiate his blinkers before turning.

31. ACM says in her subissions (on the final page) ‘I concede that I entered the intersection on a very late orange [light] and some negligence rests with me for doing that.’

32. Final additional submissions were provided by email received by me on 18 December 2018. ACM appears to be challenging the reliability of QBE’s insured’s statement on two bases. Firstly QBE’s insured says to the police on the night of the accident that he saw ACM ‘driving straight at speed’ but in the statement to Verifact, he says he never saw the Claimant at all. Secondly QBE’s insured says he ‘ran’ towards the driver after the collision whereas the CCTV footage shows he ‘walked slowly’ (according to ACM).

The evidence

33. QBE’s insured gave a statement to the Verifcat investigator. Relevantly (to the issue in dispute) he says:

a.  He edged forward and past the white line while the lights were green and by the time the light changed to orange he was ‘sitting in the middle of the intersection’ [para 25];

b.    He had almost completed his turn and enterd Philip Street when he heard a bang and realised he had been hit but he did not know what by [paras 26 and 27];
c.    He stopped blocking the pedestrian crossing and ran to the Claimant [paras 28 and 31].

34. QBE’s insured gave a statement to the police on the night of the accident recorded in the Verificact statement from Constable Moujalli at page 7. He says:

a.  There was a bus stopped heading north, there was a car in the middle lane heading north that passed through the intersection;

b.   He turned right after the car passed;
c.  ‘I looked out and saw the motor bike driving straight at speed’;
d.  He heard a bang and stopped in the middle of the road, got out of his car and ran to the Claimant;
e.  He first saw the Claimant when he had completely turned onto Phillip Street;
f.   He hit the brakes when he heard the bang.

35. I do not accept the statements given by QBE’s insured as a true and accurate record of what occurred in particular his statements that he activiated his blinkers when the unchallenged analysis of the video footage suggests he did not. In addition I do not accept QBE’s insured did not see the Claimant until he had completed his turn and was into Philip Street, at that time his attention would have been ahead of him as he navigated the turn and probably watching for pedestrians. The unchallenged analysis of the CCTV footage suggests QBE’s insured did not apply the brakes until he had completed his turn, this seems to me consistent with him not having seen the Claimant at all and only taking action (braking) when he has heard and reacted to the impact.

36. The Claimant also gave a statement to the police some time after the accident and it is recorded in the Verificat report at page 9. According to this statement:

a.    There was a car turning left and QBE’s insured’s car and a car behind her;

b.    The light turned orange before she got to the stop line and as the intersection was clear she went through;
c.     She was two feet away from QBE’s insured’s car when she saw it;
d.    She was travelling at 40 – 50 kms per hour;
e.    There was nothing in front of her to obstruct QBE’s insured’s vision of her;
f.     She was not distracted.
g.    Her headlight was on.

37. The Claimant has raised a question mark over her own statement acknowledging that there was no car turning left but a bus. She acknowledges her memory of the accident is poor but at the teleconference she said that she remembers the orange light, she remembers thinking ‘this is going to hurt’ and she remembers seeing the car when there was no time to do anything much to avoid the accident.

38. The Verificat report contains the witness statements (as part of the Constable’s statement).

39. Ms KW says:

As I went to turn right, the car in front of me[QBE’s insured’s] was creeping forward. I remember the car being a small black hatchback. I don’t know if there was a car in front of that car. The traffic light was orange. I was following the car, jhoping to get through as well. The car in front of me continued to creep forward. I saw the light turn red, so I started to stop. I noticed the car ahead of me continued to creep forward and then accelerate as the light went red. I remember this because I thought to myself he should have stopped.

40. Mr. JB, Ms. KW’s passenger says:

It was dark, but the street lights were on. My partner had her headlights on. The weather was fine and there was nothing impeding my vision. Pur car was behind another car. The car was a black Hyundai hatchback.

The car in front of us continued to creep forward on the orange lifht. As it turned red, the car sped forward and attempted to turn right ti to pHillip street, Paramatta. I knew it was red because I saw my partner gasp thinking she was going to get a ticket for crossing the red. I looked up and saw it was a red as the car turned. I then heard the front of a motorbike hitting the groud. I recognised that noise because I have done it before. I looked up and saw the bike falling on the ground. I saw the rider then fall off the bike.

My findings of fact

41. I have earlier rejected QBE’s insured’s evidence and, in the light of ACM’s concession that her memory of the accident is compromised, I do not place great weight on her evidence.

42. I do accept the CCTV footage (noting that the Claimant’s detailed anlayis of it has been unchallenged by the Insurer) and the statements from the two witnesses are the best evidence as to how this accident happened and make the following findings:

a.   ACM’s view of one set of traffic lights would have been impeded by the presence of the bus in the lane next to her;

b.   There was a vehicle in front of ACM that had proceeded through the intersection before her which is likely to have impeded QBE’s insured’s view of ACM;
c.   ACM did not says she was distracted and there is no evidence from the Insurer to suggest she was distracted as she was driving to and through the inbtersection;
d.   QBE’s insured may have been in the vehicle stopping zone or pedestrian zone when the light turned orange but he was not in the yellow shaded intersection zone when the light turned orange;
e.  ACM’s lights headlights were on;
f.   QBE’s insured had not activitated his blinkers (ACM’s analysis of the CCTV footage  has not been challenged);
g.  QBE’s insured crept forward but then sped up to make the turn;
h.  QBE’s insured turned on the red signal not the orange signal;
i.    ACM was not speeding and was more than likely travelling at less than 50 kms per hour
j.    The traffic lights facing ACM turned orange as she approached the intersection;
k.   ACM’s motorcycle was straddling the vehicle stopping zone and the pedestrian zone at the time the light turned from orange to red and the light was red when ACM’s motor cycle was fully in the intersection zone.

Consideration of the issue

43. The Insurer has conceded that its driver, QBE’s insured, was negligent and that it was his negligence that caused ACM’s accident.

44. ACM has conceded that she contributed to the accident and that there should be a finding of contributory negligence made against her.

45. Both parties have, in my view, made appropriate concessions. It remains therefore for me to determine the degree of contributory negligence.

46. I note section 3.38(1) provides that the common law and enacted law relevant to contributory negligence applies. The courts have approached the task of assessing contributory negligence by considering the ‘relative culpability’ of the various protagonists.

47. I must therefore consider the relative culpability or blameworthiness of QBE’s insured and ACM. In my view the most important features of this accident are that QBE’s insured appears to have moved into the intersection zone and commenced his turn on the red light. While he has waited for the car in front of ACM to move through the intersection he has clearly not seen ACM and it is this failure to see her or give way to her that is the reason for the Insurer admitting primary negligence on the part of its insured. Also relevant in my view is the uncontested evidence from ACM’s analysis of the CCTV footage that QBE’s insured did not have his blinker activated. If he had, ACM is likely to have seen it which might have impacted upon her decision to enter the intersection. On the other hand ACM has clearly committed to entering the intersection (and not stopped) on, as she says, a very late orange light. However she has her lights on and should have been visible to QBE’s insured had he looked for her after the car in front of ACM had moved through the intersection. ACM’s unconstested evidence is that she was not speeding and was travelling below the speed limit.

48. In my view, QBE’s insured must bear the overwhelming majority of the blame for causing this accident but ACM’s contribution is more than minor. In my view, it is just and equitable in the circusmtances to find the degree of ACM’s contributory negligence to be 20%.

Conclusion

49. My determination is that for the purposes of section 3.38 the insurer is entitled to reduce the Claimant’s weekly income statutory benefits in respect of the motor accident by 20%.

50. As the Claimant was not legally represented I make no assessment of costs and disbursements.

Belinda Cassidy
Claims Assessor
Dispute Resolution Service
18 December 2018