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ACX v Allianz Australia Insurance Ltd [2019] NSWDRS CA 076

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault –  61% at fault- witness -  legal costs
Legislation citedMotor Accident Injuries Act 2017, Sections 3.1 1 (2), 3.28(2)
Civil Liability Act 2002
Cases citedBoral Bricks Pty Ltd -v- Cosmidis [2014] NSWCA 139
Text cited 
PartiesACX – Claimant
Allianz Australia Insurance Limited - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claim Assessment Certificate

View the certificate

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter
ClaimantACX
InsurerAllianz Australia Insurance Limited
Date of Accident14 April 2018
DRS Reference10063149
Date of Internal Review1 November 2018
DRS Claims AssessorColin Stoten
Date of Decision17 January 2019
Conference date and time15 January 2019 at 11:00 am
Conference venue and locationBy Telephone
Attendances for ClaimantACX (Unrepresented)
Susan Halliday (Interpreter)
Attendances for InsurerChristina Boyadjian (Allianz representative)

The findings of the assessment of this dispute are as follows

1.For the purposes of Section 3.11 and 3.28 the motor accident was caused mostly by the fault of the injured person.

2.Legal Costs: The amount of legal costs assessed is NIL.

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

Colin Stoten

DRS Claims Assessor

Reasons for decision

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

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) of the Motor Accident Injuries Act 2017, about whether the Injured person was mostly at fault.

1. The Claimant was injured as a pedestrian whilst crossing Roberts Avenue at Mortdale at about 5:25 p.m. on 14 April 2018. At the time the Claimant was pushing a pram which was occupied by her son. The Claimant was struck by a motor vehicle driven by Mr B.

2. There are different versions of how the accident occurred provided by the injured Claimant, and that provided by Mr B, who I will refer to as the Insured driver, and an independent witness Ms P.

3. The Insurer alleges that the injured Claimant was mostly at fault in the accident and that statutory benefits are therefore not payable beyond the first 26 weeks. The Claimant challenges that decision.

4. The original decision by the Insurer to decline payment of benefits beyond 26 weeks was made on 19 September 2018. An internal review was requested and took place on 1 November 2018. The internal review confirmed the original decision made by the Insurer.

5. The Claimant has also sought review of the Insurer's decision in relation to an allegation of minor benefit and treatment expenses. These are not matters which I am required to determine, and the sole issue for determination by me is whether or not the Claimant was mostly at fault in relation to the accident which occurred.

Documents considered

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

7. I note I also held a telephone conference on 15 January 2019 with the Claimant, with the assistance of an interpreter, and with the Insurer's representative. I obtained some clarification of the documentary evidence to which I will refer as necessary in the course of these reasons.

Submissions

8. The Claimant submits that she was not at fault at all in relation to the accident, and that she had crossed to a pedestrian refuge in the middle of Roberts Avenue and had been stationary for a period of time, waiting for traffic travelling in an easterly direction along Roberts Avenue to pass, before intending to cross to the other side of Roberts Avenue.

9. The Claimant says that both she and the pram were safely within the pedestrian refuge, which is clearly marked on the roadway and is visible for some distance, noting that Roberts Avenue is a straight stretch of roadway with a slight crest to the point where the accident occurred. The Claimant essentially submits that the Insured driver ought to have seen her and should have driven his vehicle in such a way as to pass safely behind her as she was waiting in the centre of the roadway in the pedestrian refuge.

10. The Insurer says that the Claimant's version should not be accepted. The Insurer relies upon not only the evidence of its Insured driver, but also the evidence of an independent witness who was interviewed by the police, and by an investigator. The Insurer says that the thrust of the evidence of its insured and the independent witness, Ms P, is that the Claimant was struck as she attempted to cross the west bound lane of Roberts Avenue and that she walked directly in front of the Insured driver's vehicle, which was driving normally and within the speed limit for that road.

11. It is submitted the Claimant was at fault for attempting to cross the west bound lane of Roberts Avenue when it was unsafe to do so.

Legislation

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

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

Reasons

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

14. Ultimately I find that the Claimant is mostly at fault, that is, that she is more than 61% at fault for the accident for the following reasons:

(i) The Claimant's version is inconsistent, not only with the version given by the Insured driver and also the independent witness, but is inconsistent with what in fact occurred.

(ii) If the Claimant's version is to be accepted, then she was struck whilst she was standing in the centre of the roadway within the bounds of a pedestrian refuge. I observe that there was no evidence of any damage to the structures surrounding the pedestrian refuge and this would indicate that the place of impact occurred in the west bound lane of Roberts Avenue and not at the point of the pedestrian refuge.

(iii) There is no doubt that the Claimant and was struck by the vehicle. Fortunately, the Claimant's young son was not injured as a result of the accident.

(iv) The initial versions, given to the Police by each of the parties involved and the independent witness, is recorded in the following terms:

Insured driver:
"I was travelling on the Roberts Avenue... heading towards my home, and I was travelling in a south westerly direction. As I came close to the intersection of Roberts and Kendall Avenue, a lady with a pram came in front of my vehicle suddenly and I saw them in the last minute. I swerved to avoid them but I hit them anyway. The lady - I couldn't avoid the lady. "
The injured Claimant is recorded as having said:
"I was crossing the road with my son he was in the pram when I arrived in the middle of the road and we stood in the refuge island and I was on the road - I was about to cross the road. I was waiting as I couldn't find any gap to cross the road as the other side was not clear. And all of a sudden I felt something hit me and I landed on the road. I can't remember anything else."

(v) During the course of the teleconference held on 15 January 2019, with the assistance of an interpreter, Ms Susan Halliday, the Claimant informed me that when she was asked questions about the accident by the attending Police, her husband assisted with interpreting the questions and answers, both asked and given by her. The Claimant said that her husband was reasonably proficient with the English language.

(vi) The independent witness Ms P also provided a statement at the scene of the accident to Police. Her statement reads as follows:

"About 5:30 p.m. on Saturday 14 April 2018 I was driving my vehicle on Roberts Avenue heading towards Boundary Road Motel (this I interpret as meaning in a generally easterly direction, that is, in the direction opposite to which the Insured driver was travelling). As I was travelling up the hill heading towards Kendall Street, I saw a lady with a pram walking off the side of the road on my right hand side onto the road. I noticed a ute was travelling in the opposite direction (to me). The ute was about in line with Kendall Street when the lady was (sic) walked onto the road from the kerb. I applied my brakes and have seen the ute hit the lady and the pram with the front of his vehicle. The lady and the pram have then came off the road going about two metres in the air, and I saw the other lady landed on the lady landed on the flat of her back on the road. I did not see where the pram landed. The driver of the ute has stopped immediately, ran up to the lady and has pulled out his mobile phone. I turned left onto Kendall Street and parked my car... There is no pedestrian crossing at this location."

(vii) In addition to the above statements, I have statements provided subsequently as a result of a factual investigation conducted by the Insurer. Those statements essentially confirm what was said to the attending Police Officers, but also provide further detail. The additional detail provided is relevantly as follows:

The Claimant:
Para 15: Before crossing Roberts Avenue, I stood on the southern footpath and I looked to my right to see if there was any traffic and I saw a van or utility that was a long way away from where I was, it was coming up the slope towards me. The vehicle was white and I could only see the front of the vehicle.
Para 16: "l think that the van was at least 100 metres from me, and when I saw it I considered that I had plenty of time to cross the westbound lane of traffic because of where the utility or van was."

(viii) The Claimant confirmed in the following paragraphs that she had safely reached the pedestrian island without any problems and that she was struck whilst she was within the confines of the pedestrian island. The Claimant said she had stopped within the pedestrian island for about five seconds before the impact. She said she did not hear any noise of a vehicle braking before she was struck.

(ix) The independent witness, Ms P, records that she saw a lady step from the footpath on the southern side of Roberts Avenue, opposite a bus shelter which was located on the northern side. She said the lady was pushing a pram with a young child in it. She said further that there were parked cars on the southern side of the street to the right of the lady as she stepped onto the road, which would have obstructed her view to the right. Ms P observed the utility travelling in a westerly direction along the road in front of her and coming towards her. She said the driver did not appear to be travelling fast and the lady just stepped out in front of the utility and walked to the middle of the west bound lane before she was struck. Ms P said she did not hear any brakes until after the impact.

(x) Ms P confirmed that when the lady was struck she was not within the pedestrian island, but was just about in the middle of the west bound lane and was not past the middle of the west bound lane. She said when the impact occurred she was about 40 to 50 metres away from the point of impact. She said that there were other vehicles travelling behind the Insured driver's vehicle, and travelling in the same direction as that vehicle.

(xi) During the course of the teleconference held on 15 January 2019, I asked the Claimant whether she had looked to her right again after noticing the Insured driver's vehicle, and whilst she was crossing the roadway. The Claimant indicated she did not look to her right again after leaving the kerb. She considered she had sufficient time to cross and did in fact cross the roadway of the-point-of the traffic Island in the middle of the road before she was hit.

(xii) The difficulty with accepting the Claimant's version of events is that it is not supported by the apparent physical evidence, nor is it supported by the version of the independent witness. It would appear clear, based on the evidence of the independent witness, that the Claimant had perhaps reached the midpoint of the lane for vehicles travelling in a generally westerly direction along Roberts Avenue when she was struck. It would also seem apparent that the pram that she was pushing was either struck by the vehicle, or struck some other object after the collision, because this is also supported by the evidence of the independent witness, Ms P. I have a photograph of the pram involved in the accident and there would not appear to be extensive damage consistent with it actually being struck by the vehicle, however the handle used for pushing it does appear to be broken and twisted, consistent with some sort of impact, whether it is with the vehicle or with the metal frame surrounding the traffic island in the middle of the road is unclear.

(xiii) I enquired of the Insurer whether there was any further statement from the Insured driver and was informed there was not as the Insured driver was not willing to cooperate by providing a further statement.

(xiv) I consider that the statement provided by Ms P, the independent witness, supports generally the version given by the Insured Driver to the Police, and is consistent with the following facts:

a. The Insured Driver was travelling in a generally westerly direction along Roberts Avenue with other vehicles travelling behind his vehicle.  
b. That when the Insured driver has reached a point near or adjacent to the intersection of Roberts Avenue and Kendall Street, the Claimant has entered onto the roadway on the southern side of Roberts Avenue with the intention of crossing that road.
c. At the time the Claimant had attempted to cross Roberts Avenue, there were parked cars parked along the southern kerb of Roberts Avenue to the right of the Claimant and in the lane along which the Insured driver was travelling.
d. That the Claimant was pushing her pram, and that the Claimant had perhaps reached the middle of the westbound lane of Roberts Avenue when she was struck by the Insured driver's vehicle.
e. That the Insured driver was travelling at or below the allowable speed for vehicles travelling along that road at that time, and was probably travelling at a speed of about 40 kilometres per hour as recorded by the Police Officer, and consistent with the version given by the witness who said he did not appear to be travelling fast.
f. That the Insured driver did not brake or sound his horn immediately prior to impact, but that he took evasive action by attempting to swerve to avoid hitting the Claimant however was unsuccessful and struck the Claimant, causing her to be catapulted into the air before landing on her back on the roadway.

15. There is another issue, and that is that the attending Police Officer has recorded in the crash summary details that the Insured Driver was blinded by the evening sun. It is unclear to me where this piece of evidence comes from because it is not referred to in the record of interview conducted by the attending Police Constable, Constable H, and there is no reference to the driver having been blinded by the sun in the driver's statement to police.

16. It would seem that it was indeed possible for the sun to be low on the western horizon and could well have affected the Insured driver's vision, but I have no evidence before
me from the Insured driver that this is in fact what occurred. It is not referred to at all in his statement and I am unable to place any reliance upon the reference to it in the Police Report on the evidence that I have available to me.

17. I note that the Civil Liability Act 2002 also has application, as 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 that 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.

18. 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.

19. Having referred to the relevant evidence in respect of this claim in the preceding paragraphs, I am required to assess the relative contribution of the Claimant and the Insured driver to the accident which occurred.

20. It is clear from the evidence that I have reviewed and accepted that the Claimant entered onto the roadway when it was unsafe to do so, and misjudged the time within which she had to safely cross the roadway. I do not accept her evidence that she had already travelled the width of the lane for westbound traffic on Roberts Avenue for the reasons I have indicated, but particularly because I accept the evidence of the independent witness, because that person is independent of the parties involved.

21. On the other hand, the Insured driver had in my view ample vision to firstly see the presence of the pedestrian island in the middle of the roadway and ought to have been alert to the possibility that there may be pedestrian traffic wanting to cross the road to that pedestrian island. He should, in my view, have lessened the speed of his vehicle and been alert to the possible presence of the Claimant on the roadway and be in a position, in my view, to have reacted and at least applied his brakes before impact. However I note that the whole scenario from the time the Claimant left the roadway to being struck probably took no more than a few seconds to occur, leaving the Insured driver with little choice but to take some action to avoid a collision with the pedestrian. In my view, he ought to have been more alert and applied his brakes before colliding with the pedestrian, noting the circumstances that I have referred to in these reasons.

22. Nevertheless, in my view, and having regard to the requirements of the Civil Liability Act 2002 that I have referred to, it seems to me that the primary contribution to this accident occurred because the Claimant attempted to cross the roadway when it was unsafe to do so. If the Claimant had properly looked and judged the presence of the insurer driver's vehicle in proximity to her position then the accident might well have been avoided.

23. Based on the material that I have reviewed and my findings in relation to the issue of contributory negligence, I consider that the respective contributions of each to the accident are that the Claimant is responsible to the extent of 70% and the Insured Driver to the extent of 30%.

24. Although I have made a finding that is different to that made by the Insurer, which concluded that the Claimant was 75% at fault in respect of the accident, the Claimant nonetheless is more than 61% at fault, and this means that I have found the Claimant to be mostly at fault as set out in Sections 3.1 1 (2) and 3.28(2) of the Motor Accident Injuries Act 2017.

25. Whilst my decision as to the Claimant being mostly at fault in respect to the subject accident prevents the Claimant from recovering weekly payments of statutory benefits beyond the first 26 weeks after the accident, it is not binding if the Claimant is otherwise entitled to bring a claim for damages under the Act.

Costs and disbursements

26. I note that the Claimant proceeded in respect of this application on an unrepresented basis and the Claimant has been unsuccessful in relation to the claim for statutory benefits beyond the first 26 weeks. In those circumstances I allow no costs of the application.

Conclusion

My determination of the Miscellaneous Claim is as follows:

27. For the purposes of Section 3.11 and 3.28 the motor accident was caused mostly by the fault of the injured person.

28. Legal Costs: The amount of legal costs assessed is NIL.

Colin Stoten
DRS Claims Assessor
Dispute Resolution Services