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ACR v Allianz Insurance Ltd [2018] NSWDRS CA 070

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Statutory benefits – fault of the injured person – at fault – mostly at fault – contributory negligence – unidentified vehicle – pedestrian – legal costs
Legislation cited Motor Accidents Injury Act (NSW) ss 3.28, 3.36, 7.36(5), Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Civil Liability Act 2002 section 5B, 5R
Cases cited Sung v Patterson [2001] NSWCA 210
Knight v MacLean [2002] NSWCA 314 
The Nominal Defendant v Cordon [2017] NSWCA 6 
Ma v Keane [2003] NSWCA 50
Boral Bricks Pty Ltd v Cosmidis [2014] NSWCA 139
Text cited N/A
Parties ACR - Claimant
Allianz 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

View the certificate

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

ClaimantACR
InsurerAllianz Australia Insurance Limited
Date of Accident19 December 2017
DRS Reference10061384
Date of Internal Review12 October 2018
DRS Decision MakerColin Stoten
Date of Decision19 December 2018
Conference date and time17 December 2018 at 3:00 p.m.
Conference venue and locationBy telephone
Attendances for ClaimantMr Vrege Kolokossian, Solicitor
Attendances for InsurerMr Marcus De Courtenay

The findings of the assessment of this dispute are as follows :

1.  For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person

2.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,540 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate.

Colin Stoten
Decision Maker
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)(e) of the Motor Accident Injuries Act 2017, about whether the Claimant was mostly at fault.

1.   The Insurer has determined that the Claimant was either not at fault or was mostly at fault. The Claimant through her solicitors say the Claimant was not mostly at fault but submits that the Claimant will suffer some reduction of her statutory benefits due to her contributory negligence.

2.   The Claimant whilst crossing the Great Western Highway at Emu Plains near to the T- intersection with Old Bathurst Road was struck by an unidentified white 4WD vehicle. She was attempting to cross from the north side of the Great Western Highway onto the south side of that roadway.

3.   The Claimant had crossed two lanes and had stopped in the middle of the roadway and then says that she was guided by a driver stopped in the lane adjacent to the centre of the roadway, and beckoned the Claimant to pass in front of her vehicle. The Claimant did pass in front of that driver’s vehicle, but whilst attempting to negotiate the gutter lane on the southern side of the highway, was struck by a 4WD motor vehicle travelling in a Westerly direction on that road. The identity of that 4WD motor vehicle driver has not yet been established. The point of impact was some 10-20m from an available pedestrian crossing not utilised by the Claimant.

4.   The Insurer initially determined that the Claimant was wholly at fault in a determination made on 22 June 2018. That decision was reviewed by the Claimant and the decision made by the Insurer’s internal dispute reviewer on 12 October 2018 was that the original determination was correct.

5.   I note that in respect of that determination, the Insurer now takes the position that the Claimant rather than being wholly at fault, was mostly at fault. This would seem an appropriate position, noting that if the unidentified driver of the motor vehicle involved was not at fault, then the claim would be considered to be a no-fault accident within the meaning of Part 5 of the Act, which would require me to assess the issue of contributory negligence in any event as set out in Section 5.5 of the Act.

6.   Accordingly, in respect of the present application, the Insurer takes the position that the Claimant was mostly at fault, which of course means that the Claimant must be found to have been at least 61% at fault.

7.   In Insurer of course bears the onus of establishing the extent of the Claimant’s contributory negligence which is alleged. This is because it is the Insurer which asserts

that position. The difficulty for the Insurer is that the identity of the driver of the vehicle involved in the accident, and which struck the Claimant, has not been established. Enquiries made with the Police have failed to disclose the identity of the police officer who it seems attended the scene of the accident shortly after it occurred. It appears that police officer, or officers, failed to record their attendance and their observations at the accident scene. It can be determined that the police did attend because I have before me an ambulance report that indicates that the police were in attendance.

8.   I in fact made my own enquiries on the morning of 17 December 2018 with the police at Penrith, and was advised that after a thorough search, no records of attendance by police at the accident scene could be located. I indicated that other avenues of enquiry could be made by either the Claimant or the Insurer with the Ambulance Service to identify the relevant police officers. This is because the Ambulance Service did attend and there would be records held by the Ambulance Service which would identify at least the telephone number of the person who called the Ambulance Service, presumably a witness at the scene of the accident. If that person can be located, then there may well be further enquiries that could be made of that person, or indeed of the ambulance officers themselves who attended which would help identify the police officer who was in attendance at the scene.

9.   Despite the observations made by me in the preceding paragraph neither party requested that the matter be deferred pending enquiries being made with the Ambulance Service. I was advised that the parties were content for me to proceed with a determination of the dispute based on the material which was available to me.

10.  The internal review decision of 12 October 2018 referred to a review of material, including an ambulance report, Nepean Hospital records, police report and a statement of the Claimant, and concluded that the Claimant was 100% contributory negligent for running into the path of an oncoming vehicle consistent with decisions cited of Sung v Patterson [2001] NSWCA 210 and Knight v MacLean [2002] NSWCA 314.

Documents

11.  I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

12.  At the teleconference held in this matter on 17 December 2018, the Insurer’s representative confirmed that the Insurer’s position was that the Claimant was mostly at fault, rather than wholly at fault. Accordingly, the issue to be addressed is really what is the extent of the Claimant’s contributory negligence in respect of her involvement in the accident.

13.  The Claimant’s submissions assert, as is a correct legal proposition, that it is the Insurer who must bear the onus of establishing that the Claimant was mostly at fault. That position was accepted by Mr De Courtenay in the teleconference held on 17 December 2018. The Claimant’s solicitor submits that in the absence of any witnesses, and in particular in the absence of any statement from the driver of the vehicle which struck the Claimant, the Insurer has failed to establish that the Claimant was mostly at fault.

14.  The Claimant’s solicitor asserts that the driver of the unidentified vehicle was primarily at fault because it is obvious from the circumstances of the accident, established by the Claimant’s statement(s) that the Claimant ought to have been visible to the driver and there is no evidence that the driver sought to take any evasive action, slow down or engage the horn on his vehicle to alert the Claimant to the impending danger. It is submitted that the driver was the person in control of the situation and ought to bear the major blame for the accident which occurred.

15.  It is said that the Claimant believed that the driver was speeding at the time of the accident and the driver should obviously have been seen by the driver, because the Claimant herself saw the vehicle approaching.

16.  The Insurer, as already indicated, relies on a number of documentary materials in which various histories of what occurred in the accident are given, presumably by the Claimant or specifically said to have been a version provided directly by the Claimant. I have perused a large number of entries in the records of the Nepean Hospital, as well as reviewed the other documentary material provided by the Insurer in its submissions.

17.  The position adopted by the Insurer as set out in its written submissions, is that the,records of various contemporaneous documents such as the police records, when the matter was eventually reported to the police, statements of the Claimant contained in hospital records and ambulance reports, are relevant evidence which can be taken into account in respect of the determination of the issue in dispute. References are made to the decision, for example of The Nominal Defendant v Cordon [2017] NSWCA 6. The submission is made that the contemporaneous records referred to establish that the Claimant failed to cross the Great Western Highway on a pedestrian crossing when one was available approximately 10- 20 metres from the point on the roadway where the Claimant attempted to cross. Further, that the Claimant was running across the roadway and that the unidentified vehicle which collided with the Claimant was travelling at a low speed.

18.  The Claimant has provided a detailed signed statement which was prepared and signed on 19 September 2018 by an investigator engaged by the Insurer, but with the approval of the Claimant’s solicitor. That statement alleges that the unidentified which struck the Claimant was travelling at a fast speed. The Insurer in reply to that allegation says that description of the accident is not consistent with the contemporaneous records relied upon and to which I shall refer later in these reasons. The Insurer says that there is no evidence that the unidentified vehicle was driving unsafely or at an excessive speed. This submission is also dependent upon the contemporaneous records which I shall review later.

19.  The Insurer submits that the Claimant is more than 61% at fault, relying upon the case law referred to and the application of Section 5R of the Civil Liability Act 2002. The Insurer submits that the issue of the Claimant’s responsibility for the accident can be determined, even if the Claimant’s version of events is accepted because the Claimant saw the oncoming vehicle and negligently ran into the path of it.

20.  In making my decision/conducting my review I have considered the following legislation and guidelines:

Legislation

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Civil Liability Act 2002

Reasons

21.  A detailed description of the Claimant’s background and circumstances leading up to the accident are set out in a progress note contained on page 43 of 95 documents provided by NSW Health in relation to the Claimant’s attendance at the Nepean Hospital. Those progress notes indicate that the Claimant’s address, according to the hospital, is said to have been Dillwynia Women’s Correctional Centre , Northern Road, South Windsor. The document records conflict between the Claimant and her father, which led to a physical assault causing her to then stay with a cousin before she was then kicked out by her cousin and then went to stay with a different cousin who kicked her out, so that on the day of the accident, she had become homeless.

22.  The Claimant is then said to have told the relevant officer of the hospital that the accident occurred on a hot day, and she had not had anything to drink or eat for a few days. The Claimant said how a woman in another car gestured to her to cross the road, with an expression that the Claimant took to mean “go on, you cross, it’s really hot outside”. The Claimant then states that she saw the other car coming and that he appeared to speed up to make the traffic light. The Claimant then made various statements about the attitude of the police and ambulance officers who were said to be unsympathetic to her.

23.  Another entry in the hospital records is the emergency department record of the Claimant’s admission to hospital. The record was completed by a Ms Berander Shahpuri, an advanced medical trainee. Ms Shahpuri records the Claimant told her she was hit by a car and that she was attempting to cross the road 10 metres from the crossing. The Claimant said a car stopped to allow her to pass, and another car came from behind and hit her. The Claimant remembered all the events and denied losing consciousness. The author of the entry described the Claimant as a very difficult historian.

24.  There is however no doubt about the Claimant’s injuries which were serious injuries involving fractures of her pelvis and a fracture of the L5 vertebrae, and other injuries including an injury to her left hip region. The Claimant was hospitalised for ten days.

25.  Another entry which is contained on page 11 of 95 pages, the author of which is unclear, records under the heading of “Background History” that the Claimant was hit by a car that day, namely 19 December 2017, and that the car was travelling at low speed.

26.  Another entry on page 28 of 95 pages which is also completed on the day of the accident at 2:40 p.m. by Emma Simpson, a registered nurse, refers to the Claimant having been brought in by ambulance following being hit by a 4WD at an unknown speed. It was said that the Claimant was hit on the right side, but did not fall to the ground. The Claimant was said to be verbally abusive and physically aggressive toward the nurse concerned.

27.  The police report which was made by the Claimant on 27 December 2018 at about 1:00 p.m. when the police attended upon the Claimant at the hospital, records that the Claimant alleged she was running from near the Emu Plains train station and then crossed the Great Western Highway whilst running and has collided with an oncoming vehicle. The vehicle was unidentified. The Claimant needed an ambulance and the Claimant told the attending police that the driver of the vehicle which struck her stopped and assisted in getting her an ambulance. The Claimant confirmed that there were police at the scene of the accident.

28.  The ambulance officers who attended the accident scene also completed a report. They were informed at 12:50 p.m. on the day of the accident about the fact that an accident had occurred, and they were at the scene 12 minutes later. The record completed by the ambulance officers indicated that the Claimant had stepped off a gutter and was hit by a 4WD, and that the ambulance officers were unable to get an estimate of the speed. The ambulance officers said that the Claimant was conscious, but abusive to ambulance and police officers at the scene and accused the police officer of being a white supremacist. The Claimant was uncooperative.

29.  The above therefore represents what would appear to be the contemporaneous evidence available in relation to the accident. The driver of the vehicle at fault has not been located, although as indicated, I am of the view that further attempts to locate that driver can still be made.

30.  Sometime after being discharged from hospital, the Claimant then attended upon her treating GP, who records that he saw the Claimant on 3 January 2018 and that she had been hit by a car crossing the road. The GP records her injuries, but not a description of the accident as such.

31.  The final piece of relevant evidence, which is relevant to the issue to the issue of contributory negligence is the Claimant’s statement dated 19 September 2018. In that statement, the Claimant says that she was on her way to the Nepean River from her cousin’s place. The Claimant had walked onto the Northern side of the Great Western Highway carrying a heavy backpack and a handbag, which was also apparently heavy. The Claimant says she had rested a few times and had a drink of water. The Claimant was wearing black and white shorts and a white t-shirt and sunglasses. The Claimant said she had walked to the intersection of the Great Western Highway and Old Bathurst Road, and she crossed to the northern side of the intersection. The Claimant said she then walked a further ten metres and noticed that the southern side of the Great Western Highway was much shadier and determined she would cross the road and then walk East on the southern side of the Great Western Highway. The Claimant said she was about ten metres from the intersection of Old Bathurst Road when she decided to cross.

32.  I interpolate here to note that I have available to me various photographs and diagrams prepared by and taken by the investigator, Mr Brigginshaw, engaged by the Insurer. The position of the point of impact is recorded on a photograph of the intersection, and the point at which the Claimant attempted to cross the Great Western Highway, at the time of the accident, was perhaps only ten or 20 metres from the intersection of Old Bathurst Road.

33.  The Claimant then says that she saw a female person in a small white car stopped behind three other cars which had stopped with the intention of turning right from the Great Western Highway into Old Bathurst Road. There was a gap between the small white car and the vehicle in front of it. The driver of the small white car beckoned the Claimant to cross in front of her car. She walked across the eastbound lanes of the Great Western Highway, which contained no oncoming traffic. She arrived at the centre of the roadway in a slow jog and the traffic in the westbound right-hand turn lane, that is the lane in which the small white car was stationary, which was the lane immediately adjacent to the centre of the roadway. She said she then jogged in front of the small white car and looked to her left. She apparently saw a white 4WD at the lights about 150 metres east of her position. She said she observed that the vehicle was moving in her general direction and she considered she had time to cross the roadway.

34.  The Claimant says she continued her slow jog in front of the small white car into the gutter lane. When she had entered the gutter lane, she again looked at the white 4WD, which was only about seven to ten metres away from her and she thought that she could still cross in front of it, so she took a few steps and started running across the lane. She was only about halfway across the laneway when the 4WD vehicle was right next to her and she was hit. She said the vehicle was travelling fast and was travelling at about 70 kilometres an hour. She said she was it on the left side of her body. I note the police report records the speed limit as 60kmh.

35.  The Claimant then described the male driver of the 4WD and there would appear to be no other matters relevant to the issue of contributory negligence.

36.  Having reviewed the contemporaneous documents referred to above and having read the more recent statement of the Claimant dated 19 September 2018, I find it difficult to accept the assertions made in the Claimant’s recent statement. I have difficulties because the Claimant describes the 4WD as being 150 metres down the roadway, and within a matter of apparently seconds, was within a metre of her. This simply cannot be correct on any common-sense view of what occurred in this accident.

37.  In my view, the evidence indicates that the Claimant had crossed the Great Western Highway from north to south, but some ten or 20 metres east of the pedestrian crossing located at the Great Western Highway and the intersection with Old Bathurst Road.

38.  Furthermore, the evidence in my view establishes that the Claimant was able to successfully negotiate two lanes of the Great Western Highway reserved for eastbound traffic and had crossed the centreline of the roadway in front of a stationary vehicle.

39.  Furthermore, in my view, the evidence, predominantly in the form of the contemporaneous records I have reviewed, is that the Claimant crossed in front of the white car and entered into the gutter lane for westbound traffic on the Great Western Highway when she was struck by another vehicle. That much appears clear from the various sources of evidence that I have reviewed.

40.  What is also consistently said by the Claimant is that she observed the path of travel of the white 4WD vehicle, but considered she had sufficient time to cross on front of it,but it is readily apparent on any view that she had misjudged the speed of travel of the other vehicle.

41.  Whether the Claimant was jogging or walking at a fast pace, probably is of little moment, considering the absence of any other evidence as to the distances involved and the speed of the other vehicle. What is clear is that the Claimant clearly misjudged the time and distance she had to cross the one lane of traffic occupied by the white 4WD vehicle. The Claimant clearly contributed to the events which subsequently occurred as a result of her own negligence.

42.  What is difficult however to determine is whether the actions of the driver of the 4WD vehicle were reasonable in the circumstances. Clearly, the driver hit the Claimant, but what is not known is the speed at which he was travelling; whether he had observed the Claimant crossing the roadway of the Great Western Highway across the three lanes before the Claimant entered into the fourth and gutter lane where the accident occurred. There is simply no evidence as to what he observed and whether or not he ought to have seen the Claimant in sufficient time to break or swerve or alert the Claimant by way of sounding his horn on his vehicle as to the danger which was present.

43.  As indicated above, it is the Insurer who bears the onus of establishing that the Claimant was mostly at fault. It is difficult to determine whether the Insurer had available to it sufficient evidence to reach such a conclusion in the absence of any evidence from the unknown driver.

44.  The Insurer points to the decisions that I have referred to, and furthermore the decision of Ma v Keane [2003] NSWCA 50. That case was also one involving a pedestrian in similar circumstances. The pedestrian had crossed the centreline of the roadway and the Court found that the driver was not at fault and had not breached his duty of care. As referred to in the Insurer’s submissions, the Court referred to the reasonable expectation of the driver of the motor vehicle that an adult person would take ordinary precautions for her own safety and not step out in front of an approaching vehicle, which is what occurred in this claim, and also similarly to the other cases referred to by the Insurer in its submissions.

45.  I further note that since the decision is Ma v Keane, the provisions of the Civil Liability Act 2002 also have application, and have application to the extent of that which is referred to by the Court of Appeal in the decision of Boral Bricks Pty Ltd v Cosmidis [2014] NSWCA 139 wherein Justice Basten at paragraph 99 refers to the effect of Section 5R and Section 5B of the Civil Liability Act 2002 in the application of common law principles regarding contributory negligence. Justice Basten said that there is no distinction to be made between the fact from one perspective the driver is in control of a vehicle which could cause serious harm to a pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. Thus, the proposition that the driver of a vehicle is in a particular special relationship because he is in control of some machinery which can cause extensive damage if negligent, is no longer the approach to be taken since the introduction of the Civil Liability Act.

46.  Essentially, the respective contributions of each of the persons involved in a collision such as the one which occurred in respect of this claim are to be viewed on the same standard. The difficulty of course in this particular claim is that in the absence of evidence from the driver, the apportionment of blame is left to be determined in somewhat of a vacuum.

47.  Nevertheless, having regard to all of the material that I have reviewed, I have reached the conclusion that it is the Claimant who bears the majority of the blame in respect of this accident for the following reasons:

(i)  The Claimant chose to cross a busy roadway in a built-up area at a place which was unsafe, rather than on a pedestrian crossing, of which she was aware and was near to her.

(ii)   That it is apparent that the Claimant had misjudged the speed of travel of the vehicle which eventually struck her.

(iii)  That the Claimant attempted to cross in front of a vehicle which she knew to be present and which was travelling towards her at the relevant time, thereby assuming a level of risk which was unsafe in all of the circumstances of the collision which I have reviewed.

48.  In respect of the unknown driver of the vehicle, I consider however that he ought to also bear some blame for the accident for the following reasons:

(i)  He ought to have seen the presence of the Claimant as she had crossed two lanes of the Great Western Highway in respect of the Eastbound traffic and crossed in front of a stationary small white vehicle, which would likely have afforded the driver a view of the Claimant’s presence in front of that vehicle.

(ii)   That there is an absence of any evidence of the driver braking, swerving, or sounding his horn to alert the pedestrian of the danger of crossing in front of him. In this regard, I accept the available evidence which indicates that the driver had not adopted these safety measures according to the Claimant’s various statements which I have reviewed, particularly having regard to the fact that it is the Insurer that bears the onus of proving its claim that the Claimant was mostly at fault.

49.  I distinguish the cases referred to by the Insurer in respect of pedestrian claims generally because in each of the cases referred to there was a version of the accident provided by either the driver of the vehicle alleged at fault which was exculpatory of that drivers involvement in the accident, or from an independent witness. That is not the case here and I cannot make any reasonable assumptions as to the actions of the unidentified driver.

50.  Nevertheless having regard to the material that I have reviewed, I consider it is the Claimant who bears the major portion of blame for the subject accident, and I have determined that the appropriate apportionment of liability is 55%/45%, meaning that I consider that the Claimant was 55% to blame for the accident which occurred for the reasons indicated and applying the legal principles that I have referred to, particularly that as set out by Justice Basten in the Boral Bricks Pty Ltd case that I have referred to.

51.  Consequently, I do not consider that the Claimant is mostly at fault, that is more than 61% at fault, and that the Insurer is therefore not entitled to cease payments of statutory benefits if the Claimant is otherwise entitled to receive such benefits.

Costs and Disbursements

52.  As the Claimant has been successful in this application I consider the Claimant is entitled to her costs, and I assess professional costs in the sum of $1,400 plus GST, giving a total of $1,540 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

53.  For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.

54.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,540.00 inclusive of GST.

Colin Stoten
Decision Maker,
Dispute Resolution Service