SIRA Logo

ACU v Allianz Australia Insurance Ltd [2019] NSWDRS CA 073

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Wholly or mostly at fault - contributory negligence – greater than 61% - version of events - witness – pedestrian - legal costs – pedestrian hit by vehicle – red light
Legislation Cited Motor Accident Injuries Act 2017: Sections 3.28(1)(a)

Civil Liability Act 2002 NSW: Section 5R

Cases Cited Manly v Alexander [2005] HCA 79

T and X Company Pty Limited v Shivas [2014] NSWCA 235

Truong v Gordon [2014] NSWCA 97

Nominal Defendant v Ross [2014] NSWCA 212

Turkmani v Visvalingan [2009] NSWCA 211

Boral Bricks Pty Limited v Cosmidis (2) [2014] NSWCA 139

Talbot-Butt v Holloway  (1990) MVR 70
Text Cited  
Parties ACU - Claimant
Allianz Australia Insurance 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(5) 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

ClaimantACU
InsurerAllianz Australia Insurance Limited
Date of Accident6 June 2018
DRS Reference75C000778
Date of Internal Review26 October 2018
DRS Claims AssessorHelen K. Wall
Date of Decision15 February 2019
On the papers byDRS Claims Assessor Helen K. Wall

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

1. For the purposes of section 3.28 (1) (a) of the Act, the motor accident was not caused wholly or 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 $1,760.00 inclusive of GST.

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

Helen K. Wall
DRS Claims Assessor
Dispute Resolution Services
Dated: 15 February 2019

Reasons for the decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Introduction

1. ACU alleges she sustained injuries in a motor vehicle accident on 6 June 2018.

2. ACU made a claim for statutory benefits under the Motor Accidents Injuries Act 2017 against Allianz Australia Insurance Limited.

3. The Claimant was paid statutory benefits for 26 weeks.

4. On 19 September 2018 the Insurer notified the Claimant that it denied benefits following the first 26 weeks on the basis that the Claimant was mostly at fault in the accident. ACU sought a review of that decision and internal review decision was published on 26 October 2018 confirming the original decision that the Claimant was mostly at fault in the motor vehicle accident.

5. The dispute has been allocated to me to decide.

Background

6. The Claimant has provided two Statements – dated 3 August 2018 and 31 January 2019. In those Statements she stated as follows:

Paragraph 14 of Statement, 3 August 2018:

“On Tuesday 5 June 2018 I worked as normal during the day. I normally work between the hours of 9am to 6pm at my office located at York Street, Sydney . . .”

At paragraph 17 onwards:

“I set off for work about 5am and took the train to the city from Hornsby.

I arrived at Wynyard Station in the morning at about 5:22am.

I came out of the station onto York Street and observed that the weather was fine at this time but it had been raining. The sealed bitumen kerbed and guttered roadways were wet.

I commenced to walk south in York Street along the western side pathways towards my office.”

The Accident

At paragraph 21:

I then came to the intersection of Erskine Street where the intersection is controlled by traffic and pedestrian control lights.

I stopped at the end of the pathway. I pressed the pedestrian button on the light pole and waited as at this time there was a red walk sign for pedestrians who wished to cross from the northern side of Erskine Street towards the southern side of Erskine Street.

I waited for a few seconds. At this time it was very quiet and there were no other pedestrians with me.

At this time I was dressed in navy coloured pants and a red coloured hiking jacket…

After a few seconds the pedestrian light turned to green and a buzzing sound came on. This indicated to me that I was legally allowed to cross Erskine Street from this time.

I think I recall glancing to my left and also to my right. I was then unaware of any traffic in either York Street or Erskine Street that may have been a potential danger to me. As such I stepped off the Kerb to walk directly south within the confines of the pedestrian crossing.

At this point in Erskine Street the roadway is two way running in an east-west direction with York at this point running one way in a southerly direction.

I walked across Erskine Street south and at a point on the roadway slightly south of the middle of Erskine Street, I was struck by a motor vehicle in the left hand side of my back.

I was aware that I had been hit by a motor vehicle but then blacked out.”

7. In a supplementary Statement dated 1 January 2019, the Claimant stated:

At paragraph 4:

“I recall looking for any cars approaching the intersection before I started to cross, but there were no cars in the vicinity. It was still quiet on the roads at that time. I was wearing a red hiking style jacket with a large hood. I had the hood up over my head.

The hood of my jacket sat loosely around my head so that it hardly moved when I turned my head within it.

I was walking at a normal, if not slow, pace.

I was most of the way across the road when the vehicle involved in my accident turned right from York Street into Erskine Street and struck me from behind on my left hand side knocking me down on to the road.”

8. The insured driver, Mr R provided a Statement to an investigator, Mr B, dated 7 August 2018 and he noted as follows:

At paragraph 17 onwards:

"I woke up at about 5:00am on the morning of Wednesday 6 June 2018. My intention that morning was to take my partner to work at Wynyard in the city…

We left our Chiswick residence at about 5:15am, I was driving my jeep and my partner was in the front passenger seat. We both had on our seatbelts. It was a fine morning and the roadway was dry, it was still dark at that stage so the lights in my vehicle were on…I then drove to George Street where I turned left and drove north to Grosvenor and turned left. I then turned left into Lang Street, which brought me to York Street where I turned left. I then drove south in York Street as I intended to turn right into Erskine Street a number of blocks south.

I drove along York Street in the right hand lane closest to the gutter. Due to the time of the morning the traffic was very light. There were no vehicles in front of me and I cannot recall seeing any pedestrians on the footpath.

The intersection with Erskine Street has traffic lights and as I approached the lights for the southbound traffic in York Street were green. I activated my right hand indicator and slowed down to between 5 KM/H and 10 KM/H to negotiate the corner. I did not see anyone on the footpath to my right or on the footpath to the corner of Erskine Street.

As I commenced to turn into Erskine Street the lights were still green. I cannot however remember what the pedestrian lights were for the pedestrian crossing Erskine Street. I definitely did not see anyone on the footpath or waiting or approaching the lights on the footpath.

Just as I was entering the pedestrian crossing area in Erskine Street something hit the front right panel of my car. It startled me and I realised that I had hit someone. I stopped immediately, still within the pedestrian crossing area, turned on the vehicles hazard lights and got out. I then saw a person lying on the ground near the side of my vehicle so I checked and found it was an Asian lady who appeared to be in her thirties. She was wearing a dark coloured jacket and pants…"

9. I have been provided with a transcript of interview between a witness and Constable H taken on 27 August 2018. Constable H attended the scene after the accident. He gave the following evidence at page 4 of his statement:

“Question:  …we will go into that detail a little bit later on, but the positioning where she was located, she was in the confines of the pedestrian crossing?

Answer:    Yes.

Question:    On the southern side of the middle of Erskine Street?

Answer: Yes”

10. Constable H noted that the speed zone in the area was 40 or 50 kilometres per hour.

11. Extracts from the police interview note as follows:

“…police spoke with a woman who was assisting the victim who informed police that she was a nurse. Shortly after paramedics arrived and conveyed the victim to St Vincent’s Hospital. About 6 or 8am police spoke with driver 1, the standard breath test returned a negative reading. A form of demand was then placed on driver 1. Driver 1 informed police that he had been travelling about 5 kilometres an hour before the accident and that he had a green traffic light to turn right into Erskine Street. He informed police that he had no visual indication of the victim crossing the road and he was only alerted to the fact as he heard the bang on the front rear side of his car. Then there are outstanding actions which are part of the event…”

12. The record of interview with the Claimant noted as follows:

“I was walking south on York Street from Wynyard Station. I came to Erskine Street and crossed the road. I suddenly got hit by a white van.
Question:    Where about did you cross on Erskine Street?

Answer:    I crossed at the crossing.

Question:    What did the pedestrian traffic lights show?

Answer:    Green.

Question:    Did you walk or run across the road?

Answer:    Walk.

Question:    How long did you wait at the lights after pressing the button?

Answer:    3 to 5 seconds.

Question:    Did you have clear vision of the traffic lights?

Answer:    Yes.

Question:    What were the road conditions?

Answer:    Wet.”

13. The formal police report reiterates the above evidence of the driver and the Claimant.

14. The ambulance report noted that the Claimant gave a history that she was hit by a vehicle at low speed and the ambulance report noted there was no damage to the car.

15. The police records include a statement from a Mr G, witness to the event. It states as follows:

“At about 6:00am on Wednesday 6 June 2018 I was walking from Wynyard Railway Station southbound on York approaching Erskine Street Sydney. I noticed a female ten meters in front of me walking the same way. I would describe her as female, with black shoulder length hair and twenties in age, Asian appearance that is all I remember.

I observed the female cross Erskine Street at the crossing. At the time I noticed that the pedestrian lights were a solid red man. The female was looking straight ahead. The female did not stop at the lights or stop to press the crossing button. When the female was about half way across the road I noticed a white SUV Van from York Street and slowly driving to the intersection the vehicle collided with the female who rolled a bit at the vehicle and on to the ground.

The male then got out of the vehicle I asked him if he wanted an ambulance to which he said yes. I then called 000.

The female was conscious and alert but no answering our questions…the reason I initially noticed the female was because she did not even look before crossing nor did she slow down or take any care in crossing.”

16. The Insurer was in possession of a colour photograph of the jacket worn by the Claimant that was cut from her body after the accident. This is a large loose hiking type jacket with a loose red hood. The outside of the jacket is red and the inside lining appears to be an off white colour.

17. I note the Claimant’s evidence in her second Statement which stated:

“The hood of my jacket sat loosely around my head, so that it hardly moved when I turned my head within it.

18. I note further that the driver’s version of events was that the Claimant was wearing dark clothes. This clearly cannot be correct given that the Insurer has provided what it accepts as the garment the Claimant was wearing at the time which is bright red.

19. Both parties have provided Submissions attached to the application in reply and I have received further Submissions from the Claimant by correspondence dated 8 February 2019 and the Insurer provided further Submissions in reply provided to me in an email dated 12 February 2019.

20. The Claimant’s Submissions essentially are as follows:

“1. The Claimant does not concede that the pedestrian lights were red when she crossed. Alternatively even if I were to find that the pedestrian lights were red that the Claimant would still not have been mostly at fault in the accident.”

21. The Claimant submits that the evidence is that she checked for cars and did not see any cars in the immediate vicinity; the Claimant was walking at a normal if not slow pace and was more than halfway across the two lane road when she was struck by the insured vehicle.

22. The Claimant further submits that given the speed of the insured vehicle that the driver would have had a reasonable distance away from the intersection and it would have been reasonable for the driver to observe the Claimant. The Claimant submits that the driver had sufficient time to observe the Claimant and to take evasive action. The Claimant further submits that given that York Street is a one way road, there was no other traffic to distract the driver and his vision of the Claimant would have been sufficient to take evasive action – Manly v Alexander [2005] HCA 79.

23. The Claimant further submitted that based on the evidence of the driver to the police that he had not seen the Claimant prior to the collision despite alleging he had a clear line of sight for many meters prior to the collision, he should have avoided her.

24. The Claimant submits that Courts have only found pedestrians to have been contributorily negligent to the degree asserted by the Insurer where their conduct is blatantly perilous such as running across a busy four lane road in the city in front of fast moving traffic – T and X Company Pty Limited v Shivas [2014] NSWCA 235.

25. The Claimant also relies on the Court of Appeal Decision in Truong v Gordon [2014] NSWCA 97 where it states:

“In terms of possible responses, the culpability of the driver was probably greater. If he had seen the Plaintiff in reasonable time, he could either have slowed down or changed lanes so as to leave ample room to avoid the Plaintiff. The options open to a pedestrian may be more limited.”

26. The Claimant also relies on the Decision of Nominal Defendant v Ross [2014] NSWCA 212 where it held:

“… a failure by a pedestrian to keep a proper lookout might result in injury to himself. A failure by a driver of a large vehicle such as a minibus might result in not only injuries to himself but serious injuries or death to an innocent party. In that regard, more culpability weighs more heavily against a driver as against a pedestrian even though they are actions made to a similar degree, have contributed to the accident. That has been the approach traditionally adopted by the Court.”

27. The Insurer has provided further Submissions in reply.

28. In its Certificate of Determination - Internal Review, the Insurer refers to various sections of the Motor Accidents Injuries Act and quotes the facts in the subject case as follows:

Paragraph 8:

“In determining fault in a motor vehicle accident, it is necessary to consider the evidence on the part of those involved in the accident. A driver is required to take reasonable care for the safety of other drivers and users of the roadway. In particular, there are obligations on a driver to keep a proper lookout and to maintain proper control of a vehicle. There is a corresponding obligation on pedestrians to take responsibility for their own safety and conform to the applicable laws when using roadways…however, I also accept that the insured driver has failed to keep a proper lookout for pedestrians in the intersection noting that, while it was dark which affected your visibility, the Sydney CBD has some street lighting. There is also no suggestion that you were moving at a heightened speed into the intersection.”

29. The Insurer referred to the Decision of Turkmani v Visvalingan [2009] NSWCA 211 where a pedestrian was assessed as being 80% contributorily negligent after crossing against a red light prior to impacting with a motor vehicle.

30. In further Submissions in reply, the Insurer noted the evidence of the independent witness (referred to by me earlier) stated that as she got into the intersection, she just did not stop and just kept walking on a red man. That caught his attention more. The Insurer submits that if the Claimant was to have checked the intersection properly, so as to note any vehicles turning from the lane of the insured driver, it would have required her to stop and, to look, prior to walking out. The Respondent submits that on the evidence of this lay witness, she did not take either of these actions.

31. The Insurer also refers me to the Court Decisions of Boral Bricks Pty Limited v Cosmidis (2) [2014] NSWCA 139 and to the matter of Shivas referred to above. The Insurer submitted that in both matters it was accepted that the application of s5R of the Civil Liability Act 2002 was such that equal weight should be placed on the actions of both parties regardless if one party is a pedestrian. For example:

“…that is, no distinction is made between the fact that from one perspective, the driver is in control of a vehicle that 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.”

32. In its Submissions the Insurer noted as follows:

“1. The key point note is the insured driver had right of way of turning into the intersection given the Claimant entered the intersection on a red pedestrian light. Consequently the causative factor in the motor vehicle accident was the Claimant’s failure to adhere to the road rules.

2. Moreover, her culpability is heightened by failure to properly check the intersection prior to entering by stopping to check for vehicles.

3. As such, the Respondent maintains that the Claimant is mostly at fault in the motor vehicle accident.”

Legislation

33. In determining the issue before me I have had regard to the following legislation:

  • Motor Accidents Injury Act 2017 (NSW) (“The Act”).
  • Motor Accident Injuries Regulation 2017.
  • Motor Accident Guidelines 2017.
  • Civil Liability Act 2002 NSW.

Reasons

34. My finding on the evidence before me:

1. I find that the driver approached the intersection at a low speed of somewhere between 5 and 10 kilometres per hour.

2. I find that the pedestrian crossed against a red light and I do not accept her evidence that it was a green light as I am more guided by the independent witness.

3. I do not accept the evidence of the independent witness that the Claimant did not look to her left or right before crossing. I make this finding on the basis that the witness was at least ten meters behind the Claimant and she was wearing a large jacket with large hood, so his vision of any movement of her neck was impaired. I accept the Claimant’s evidence that she did look left and right, but I do find that she walked against a red light.

Relevant Legislation

35. Section 5R of the Civil Liability Act 2002 provides as follows:

“(i). 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.

(ii). For that purpose (a) the standard of care required by 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 what that person knew or ought to have known at the time.”

36. The starting point for any analysis for contributory negligence is the well-known principle in Podrebresek v Australian Iron and Steel Pty Limited [1985] HCA 34:

“The making of an apportionment as between a Plaintiff and a Defendant of their respective shares in their responsibility for the damage involves a comparison both of culpability, ie: of the degree of departure from the standard of care of the reasonable man… and of the relative importance of the acts of the parties in causing the harm…it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination…”

37. Following the above appeal the Court of Appeal in NSW in Talbot-Butt v Holloway  (1990) MVR 70 adopted the principle in respect of a case involving a pedestrian, that:

“The Culpability of the Plaintiff and the Defendant must take proper account of the facts that…the Plaintiff’s conduct posed no danger to anyone but herself, while the Defendant who is driving (the vehicle) was in charge of a machine that was capable of doing great damage to any human being who got in its way.”

38. In the matter of Cosmidis (referred to above) Justice Basten in reference to section 5R of the Civil Liability Act noted as follows:

“The principles that are applicable in determining whether a person has been negligent also apply in determine whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.”

His Honour stated:

“Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differently with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that from one perspective, the driver is in control of the vehicle and could cause serious harm to the pedestrian, whilst from the perspective of the pedestrian, it was the likelihood of serious harm which was to be considered. If the Plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware of the likely presence of pedestrians and if each were equally careless liability should be shared equally.”

39. The Court found in the above case that the Plaintiff was liable by 30% for failing to keep a proper lookout on the basis that he knew that forklifts were operating in the area and he failed to take care when walking into that area when the forklifts were operating.

40. A decision following Cosmidis in the matter of T and X Company Pty Limited v Shivas dealt with a death claim in which the trial Judge found that the Deceased was 40% contributory negligent in attempting to cross the roadway against a red pedestrian light.

41. In the matter of Shivas, Justice Basten considered that although the taxi driver was driving a motor vehicle likely to cause greater harm to a pedestrian, he considered that the unpredictable step taken by the Deceased in crossing the road against a red pedestrian light and into the face of oncoming traffic warranted a far higher level of contributory negligence than 40% and he considered that the pedestrian was 75% contributorily negligent. Justice Beasley who dissented, would have not have interfered with the Trial Judge’s determination of 40%.

42. In the matter of Nominal Defendant v Ross [2014] NSWCA 212 Appeal: reconsidered the culpability of a pedestrian and a driver it appears to have returned to the pre Cosmidis approach taken by the Court of Appeal. In the matter of Ross Hoben JA stated that:

“A failure by a pedestrian to keep a proper lookout might result in injury to himself: however, a failure by a driver of a large vehicle such as a minibus, might result in not only injury to himself, or serious injury or death to an innocent party.”

43. To that end, it was held that moral culpability weighs more heavily against a driver than a pedestrian, even though there may, to a similar degree, have contributed to the accident. After giving consideration to cases in which the driver and pedestrian failed to keep a proper lookout [5] and the findings of fact available on the evidence, Hoben JA allowed this ground of appeal and increased contributory negligence from 20% to 35%.


44. I find as follows:

1. That the Claimant crossed against a red pedestrian light.

2. That the insured was driving at a low speed which should have allowed him sufficient time to see the pedestrian and take evasive action.

45. In order for the Claimant to be mostly at fault contributory negligence must be greater than 61%.

46. I find that the motor accident was not caused wholly or mostly by the fault of the Claimant.

Costs and disbursements

47. I am satisfied that the Claimant is entitled to the payment of legal costs. I allow the Claimant’s costs of $1,633.00 plus GST (under clause 35 of the Regulations) making the total award for costs at $1,796.30.

Conclusion

48. The findings of assessment of this dispute are as follows:

1. For the purposes of section 3.28 (1) (a) of the Act, the Motor Accident was not caused wholly or mostly by the fault of the injured adult person.

2. The Claimant’s costs be paid by the Insurer in the sum of $1,796.30.

Helen K. Wall
DRS Claims Assessor
Dispute Resolution Services