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ADB v Allianz Insurance Ltd [2019] NSWDRS CA 080

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
Catchwordsmotor accident was caused wholly by the fault of the injured person – breach of duty – negligence of the claimant – legal costs
Legislation citedMotor Accident Injuries Act 2017: Section 3.28;  Schedule 2(3)(e)
Civil Liability Act 2002: Section 5B
Cases citedDerrick v Cheung [2001] HCA 48;
Mobbs v Kain [2009] NSWCA 301
Text citedN/A
PartiesADB – Claimant
Allianz Australia Insurance Limited - Insurer
DisclaimerThis 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 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
ClaimantADB
InsurerAllianz Insurance
ApplicantADB
Date of Accident10 May 2018
DRS Reference10063555
DRS Claims AssessorAssessor Margaret Holz
Attendance for ClaimantBelinda Cassidy of Stacks Goudkamp
Attendance for InsurerFrances Allen of Moray & Agnew
Date of Decision6 June 2019

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person.

Legal Costs: The Claimant is entitled to the payment of legal costs and disbursements in the sum of $1,320 inclusive of GST.

Margaret Holz
DRS Claims Assessor
Dispute Resolution Service

REASONS FOR DECISION

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

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (cessation of statutory benefits after 26 weeks to adult injured persons most at fault) the motor accident was caused mostly by the fault of the injured person.

1. There is a dispute between ADB (the claimant) and Allianz Insurance (Allianz) in respect to whether the claimant was the person most at fault for the accident under Schedule 2(3)(e) of the Motor Accidents Injuries Act 2017 ("the Act"). Indeed, Allianz alleges that the claimant was wholly at fault.

2. On 10 May 2018 the claimant was struck by the insured vehicle as she crossed Merrylands Road near Ridge Street, Merrylands. She suffered injuries, which are non-minor.

3. The claimant sought and received statutory benefits from Allianz, the insurer of the vehicle with which she collided.

4.  On 29 August 2018 Allianz issued a Liability Notice advising the claimant that she was not entitled to statutory benefits beyond 26 weeks from the date of the accident because:

a.  You were mostly at fault in the accident. This means that we deny that the person driving the vehicle we insure was at fault;
b.  As a result, contributory negligence does not apply.

5. The claimant sought an internal review of this decision. On 26 October 2018, Alllianz's Internal Dispute Resolution Officer, Christina Boyadjian, affirmed the decision that the claimant was mostly at fault.

6. On 8 November 2018, Ms Boyadjian sent an email to Stacks Goudkamp, the claimant's solicitors, conceding that the insured driver was at fault and alleging contributory negligence of 80%.

7. On 30 November 2018, the claimant lodged the DRS Application Form seeking a determination of her contributory negligence, in which she asserted that she had not been guilty of contributory negligence and that, if she were, her contribution was very small indeed.

8. In its Reply to the Application, Ms Boyadjian on behalf of Allianz, confirmed its position on liability, that is, that the claimant was 80% at fault for the accident.

9.  The matter was allocated to me for assessment on 17 January 2019.

10.  Allianz subsequently retained Ms Frances Allen of Moray & Agnew to act on its behalf.

11.  On 5 February 2019, I received an email from the claimant's solicitors advising that the claimant conceded that there should be a finding of some contributory negligence made against her but she disputed the amount and maintained that she was not wholly at fault for causing the accident. I was informed that I need only determine whether the claimant was or was not mostly at fault for causing the accident.

12.  On 11 February 2019 1 received an email from Ms Allen enclosing a Liability Notice in which Allianz resiled from its stated position regarding liability and advised that it now denied liability and, in the alternative, alleged that the accident was caused by the negligence of the driver of an unidentified vehicle who allegedly waved the claimant across the roadway.

13.  In response, I received detailed submissions on 12 February 2019 from Ms Cassidy on behalf of the Claimant dealing with a number of matters pertaining to the alternative allegation raised by Allianz concerning the driver of the unidentified vehicle.

14.  A teleconference was conducted on 12 February 2019 at which Ms Cassidy represented the claimant with Ms Allen for Allianz. At that teleconference, Ms Allen advised that the purpose of making the allegation concerning the driver of the unidentified vehicle was to have the claimant seek statutory benefits against the insurer of the unidentified vehicle. That was a matter which fell outside the ambit of the dispute I was to determine.

15.  Ms Cassidy requested that she be allowed to address the issue of the primary negligence of the Allianz insured vehicle, this not having been an issue until the day before when Allianz withdrew its earlier concession.

16.  I set a timetable for each party to make written submissions in relation to the primary negligence of Allianz's insured driver, any negligence of the driver of the unidentified vehicle being irrelevant to the matters that I was asked to determine.

17.  I duly received submissions from Ms Allen on 15 February 2019. Before time for the claimant's compliance with my timetable had expired, I was requested to defer my decision while she sought to involve the Nominal Defendant (representing the driver of the unidentified vehicle) and obtain some clarity as to whether the Nominal Defendant or Allianz would be the "relevant insurer" for the purposes of the claim.

18.  I was advised on 15 April 2019 that NRMA Insurance had been appointed by the Nominal defendant to represent the interests of the unidentified vehicle and I was again asked to defer my decision, pending confirmation from NRMA as to whether it agreed that it was the relevant insurer.

19.  On 14 May 2019, I was advised that the two insurers had agreed that Allianz was the relevant insurer for the purposes of the claim for statutory benefits. An agreed proposed timetable was provided to me for both parties to make further submissions.

20.  Submissions have now been received from both parties, with their latest submissions replacing those that had been provided earlier. Ms Allen provided submissions on behalf of both the Allianz insured driver and the driver of the unidentified vehicle.

The Accident Location

21.  Merrylands Road Is a four-lane street running east-west. There are two lanes in each direction with a painted dividing line. The accident occurred when the claimant attempted to cross from the south side of Merrylands Road to the north.

22. To the west of the accident site are traffic lights and a marked pedestrian crossing at the corner of Centenary Drive. On the south side of Merrylands Road, about 50 metres to the east of Centenary Drive is a bus stop. About 60 metres further east of the bus stop is the Tintersection of Ridge Street, with Ridge Street running north. There are no traffic lights or pedestrian crossings at the Ridge Street intersection.

The Actions of the Claimant - Evidence

23. The evidence of the claimant's actions in the period immediately prior to the accident are contained in the Application for Personal Injury Benefits completed by the claimant's husband because of her inability to write or understand English, in a statement of eye witness LT of 25 July 2018, in a statement of the Allianz insured driver CA of 17 July 2018, in an Accident Report completed by CA on 13 June 2018, and in the claimant's unsigned statement to police of 28 May 2018.

24.  Although the claimant's statement to police is unsigned, the claimant has not produced any other statement that might contradict, amend or amplify the contents of that statement, although she has had ample opportunity to do so. I infer that the statement is accepted by her as being factually correct.

25.  In her Application for Personal Injury Benefits completed by her husband, the claimant stated:
"After getting off the bus at the bus stop on Merrylands Road and opposite Ridge Street I was crossing the road and got hit by a passing vehicle."

26.  In her unsigned statement to police, she is recorded as having said that she was a 64 year old woman who had lived in Australia permanently since 2015. She said that she caught a bus from Merrylands train station, along Merrylands Road, alighting near Ridge Street. She said she had been taking the bus route for a couple of years and was travelling on her own. She said that normally, when she got off the bus, she would cross the road by a pedestrian crossing less than 100 metres away from where the bus drops her off, but on that day, she came home a little bit late and knew that her husband was going to finish work soon. It is recorded:

"So instead of crossing the road by the crossing, I crossed the road behind the bus which was near the traffic light at the time. There were no vehicles travelling on the same direction.
I walked across the street from behind the bus and when I got to the middle of the street I saw two vehicles, both vehicles were tall and lined up behind each other in the lane in front of me. Both cars which were in front of me came to a complete stop as the light at the intersection close to them was red. The driver of the tall van gave me a gesture indicating me (sic) to cross the road. Because the two vehicles were both tall, I could see no vehicles coming from the lane closest to the gutter.
I ran across the road and during this, a car hit me as I was running across lane."

27.  In relation to the claimant's actions, LT says that he was walking along Merrylands Road on the southern side, away from Ridge Street where he had parked his car. He saw a female person of Asian appearance on the same side of the road as him and he saw her step onto the roadway to cross lane 1 of the 2 westbound lanes in Merrylands Road. He said:

"l noticed she was walking like she didn't seem to care about any traffic on the road. There was enough of a gap in traffic for her to cross the two westbound lanes. There was no traffic banked back in the westbound lanes, but she was able to get across safely. I saw the traffic in lane 2 of 2 eastbound stop. They stopped for the Asian female. I could not see any traffic in lane 1 of 2 eastbound, but then my view of that lane was obscured by the stopped cars. I was still watching (the) Asian female. It was like she was playing the game
'frogger'. I saw her walk into lane 2 of 2 eastbound. Her walk was
a bit faster than a normal. She did not look for any traffic in lane 1, she just kept walking and I saw her take one step into lane 1 of 2 eastbound on Merrylands Road and I saw a blue Ford Ranger come into view travel/ing east on lane 1 of 2. The female pedestrian walked into the front right-hand guard near the front right tyre and she was knocked onto the road. She ended up with her head in lane 2 of 2 and her feet in lane 1 of 2.

28.  He later added:

"l believe the pedestrian was at fault for not crossing the road safely. It is a busy road and there are pedestrian crossings in the vicinity she could have used.
The Asian lady was by herself. There were no other pedestrians around at the time"

29.  The Allianz insured driver, CA, completed an Accident Report for Allianz in which he described his progress along the left-hand lane of Merrylands Road and seeing two vehicles stopped in the right-hand lane. He said:

"...as I got closer, ADB had walked straight in front of me"

30.  In his statement to the insurer's investigator, CA expanded on this description and said:

"...l saw an Asian female walk into my lane from in front of the four wheel drive, she just stepped out into the front right side bumper of my car... The pedestrian had stepped into my lane by about 500 millimetres. She had taken one step I could see into my lane.

The female pedestrian was walking I think. She was wearing dark clothes. She had a backpack, but I can't say if she was holding it or carrying it on her back.

The pedestrian basically fell down where she was impacted which was about 500 millimetres into my lane."

The Actions of the Allianz Insured Driver - Evidence

31.  The only descriptions of the insured driver's actions leading up to the collision are contained in his Accident Report to Allianz and in his statement to Allianz's investigator. The claimant did not see the driver prior to the collision and gave no description of his actions. LT's view of the insured vehicle was obscured by the stationary vehicles in lane 2 eastbound, until immediately prior to impact. While he says late in his statement that the insured vehicle was travelling at 40 to 45 kph, I am not satisfied that he was in a position to make that observation in the very brief time available

32.  In his Accident Report, CA described turning the corner onto Merrylands Road heading towards Merrylands. He then says:
"There had been two vehicles stopped in the right-hand lane. I was in the left. As I got closer, ADB had walked straight in front of me. I had turned my vehicle left to try to avoid her, mounting the footpath. "

33.  In his statement to the investigator, the insured driver described having turned from Drive Drive into Merrylands Road to trouble East. He said he turned into the left lane as was his normal procedure. He stated:

"There were no cars in front of me in my lane which was lane 1 of 2 eastbound. There was a lot of traffic in the westbound lanes on Merrylands Road. I accelerated to about 40 or 45 kph. It is a 60 kph speed limit, the Ranger is automatic, diesel and I was accelerating at a normal speed.

When I was about 50 metres from the collision scene I could see a sedan and a 4WD in lane 2 of 2 near Ridge Street I did not know why they were stopped. / thought the 4WD, which was in front of the sedan, may have been turning right into a driveway as its indicators were blocked by the sedan.

When I was about 25 metres from the collision scene I was still travelling in lane 1 of 2 travelling at about 40 to 45 kph.

When I got to be alongside the 4WD which was still stationary, the front of my Ranger was about 2 metres from the front of the 4WD. It was at this time I was still travelling at about 40 to 45 kph and I saw an Asian female walk into my lane from in front of the 4WD, she just stepped out into the front right side bumper of my car. As the impact occurred I swerved to my left and mounted the kerb in Ridge Street. / felt no impact with the pedestrian. I braked and swerved at the same time. If I had not of swerved I would say the pedestrian would have impacted me on the front right headlight."

The Actions of the Driver of the Unidentified Vehicle

34.  It is evident from the statements of all parties that immediately prior to the claimant being struck by the Allianz insured vehicle, the unidentified vehicle, which is described by CA as a four-wheel-drive and by the claimant as a "tall van", was stationary. LT says he saw traffic in lane 2 of 2 eastbound stop for the claimant.

35.  The only evidence that the driver of the unidentified vehicle gestured to the claimant indicating for her to cross the road is contained in the claimant's unsigned police statement.

Other Evidence

36.  The claimant's husband AH has produced an undated and unsigned statement on which the claimant seeks to rely. The document appears to have been prepared by the claimant's solicitor, yet it remains unsigned. AH says that the bus stop at which the claimant alighted immediately before the accident was erected only three or four years ago to replace a bus stop previously at the intersection of Merrylands Road and Centenary Drive. He says that since the erection of that bus stop some distance from the intersection, he had seen a lot more pedestrians crossing the road at or near the place where the claimant tried to cross. He had spent some time since her accident observing pedestrian traffic in the area to confirm that view. He says:

"Merrylands Road is a busy road and there is a lot of traffic on the roads but there are a lot of pedestrians in the area too. "

Documents Considered

37.  I have considered the documents provided in the application and the reply and any further information provided by the parties. I have also considered the very comprehensive written submissions provided by each party.

Submissions

The claimant's submissions

38.  The claimant submits that she is entitled to statutory benefits pursuant to section 3.1 (1) until such time as Part 3 prevents the payment of those statutory benefits. One of the disentitling provisions in Part 3 is section 3.28 which provides:

(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person's only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as  referred to in section 3.38) was greater than 61%.

39.  Is submitted that, in considering whether the claimant was wholly at fault in causing the accident, I should consider the conduct of all of the drivers, that is, Allianz's insured driver and the driver of the stationary 4WD.

40. In relation to the driver of the stationary 4WD, it is submitted that he must bear some responsibility for causing the accident. "If he had not stopped and given the gesture he did the claimant would not have walked across the final two lanes of Merrylands Road at the time she walked".

41.  It is submitted that the Allianz driver has breached his duty of care to the claimant by failing to take any steps upon seeing the stationary vehicles in the right-hand lane while driving on a road at a time and in a place where there was heightened pedestrian activity.

42.  The claimant relies on the unsigned statement of her husband as to the area being a place of heightened pedestrian activity and the propensity of pedestrians to cross the road in front of the bus stop, not using the crossings at the traffic lights further away.

43.  It is submitted that the risk of harm to the claimant was foreseeable given the time of day when the accident occurred and that it was foreseeable that the stationary vehicles were not waiting to turn right but rather stopped for a pedestrian. It is further submitted that, "a reasonable person in the insured's position would have taken extra care or kept a keener lookout on the basis that the assumption as to the vehicles turning right proved incorrect and would have taken his foot off the accelerator and slowed down to enable him to stop in time if confronted with someone trying to cross the road. "

44.  The claimant concedes that some finding of contributory negligence should be made against her and submits that a finding of 30% would be reasonable.

The insurer's submissions

45.  Allianz, in its further submissions, indicates that it has amended its position in relation to liability and now contends as follows:
"The claimant was wholly or mostly at fault in the accident; in relation to the unidentified vehicle, it is submitted that the gesture by the unidentified driver was nothing more than an indication that the claimant could pass in front of his vehicle and that it did not entitle her to run across the road without first checking it was safe to do so. It did not entitle her to enter the Allianz insured's laneway without first checking it was safe to do so. '

46.  In relation to the Allianz insured, it is submitted that there was no perceivable risk which the driver should have taken into account, but did not. He was driving appropriately in the circumstances, travelling well under the speed limit. There was no traffic immediately ahead of him and he was travelling at a speed which would be expected of traffic traveling along a busy roadway in peak-hour conditions. It is submitted that the Allianz insured driver observed the presence of the stationary vehicles, but not having seen or expected pedestrians to be crossing in the area, continued to travel at a modest speed, while still maintaining a proper lookout. Immediately, the claimant could be observed, the driver took evasive action by braking and swerving to his left.

47.  It is submitted that the actions of the claimant were such that the accident was inevitable, as there was no opportunity available to the Allianz insured driver to avoid the collision.

48.  The insurer submits that it was not foreseeable that the claimant would step from in front of a vehicle which was obscuring her presence into the path of the Allianz insured vehicle without looking. There is no evidence that the claimant looked before stepping out and it is submitted that it is not reasonably foreseeable that an adult woman crossing a busy roadway would step into the path of an oncoming vehicle without looking when her presence on the roadway was obscured. The insurer relies on the provisions of Section 5B of the Civil Liability Act 2002 which sets out the principles upon which to approach the question of whether there has been a breach of duty. The insurer says:

"Notably, the question is not to be considered retrospectively but rather, by reference to what a reasonable driver in the Allianz insured's circumstances would have done by way of response to a foreseeable risk of injury or danger to other road users."

49.  The insurer relies on the case of Derrick v Cheung [2001] HCA 48 in submitting that "whether reasonable care has been exercised is not determined by asking if a different conduct could have produced a different outcome to avoid a collision or accident."

50.  The insurer also relies on the judgment of Her Honour McColl JA in Mobbs v Kain [2009]
NSWCA 301 at [103] where she said:

"It is not reasonable in my view to require [the driver] to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. "

51.  Finally, it is submitted that the insured driver "is not required to drive in such a way as to anticipate everything that the plaintiff or other road users might do or to travel at a speed such that he could stop to avoid collision. "

Legislation

52. In making my decision 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

53.  The negligence of the claimant is manifest. She has failed to utilise an available pedestrian crossing, as was her usual practice, to safely cross a busy suburban street at a busy time of day. Having chosen to cross the road other than at traffic lights, she did not wait until all four lanes of the roadway were clear of traffic before starting to cross, as is obvious by the fact that by the time she reached the painted centre line, there were at least two vehicles approaching from her left. The driver of the lead vehicle stopped to allow her to continue to cross the road and, in all probability, to move away from the painted centre line where she was at risk of being struck by vehicles coming from both directions.

54.  Most importantly, the claimant, having "run" across (on her own evidence) in front of the stationary vehicle, then failed to check for traffic in the next lane before proceeding further. In my view, that omission was the primary, if not the sole cause, of her injuries. Had she paused as she reached the near side of the unidentified vehicle and checked for traffic in the next lane, she would have seen the approach of the Allianz insured vehicle and she would not have stepped out.

55.  I am not satisfied that the driver of the unidentified vehicle has breached his duty of care to the claimant. I agree with the insurer that his gesture (accepting that he made one) was limited to inviting the claimant to cross in front of his vehicle. The highest that the claimant puts it is that the unidentified driver should bear some responsibility for causing the accident because if he had not stopped or given the gesture he did, the claimant would not have walked across the final two lanes of the roadway at the time she walked.

56.  It is not asserted that the driver misled the claimant or warranted that it was safe for her to proceed into lane 1. It is not asserted that the driver should have checked for oncoming traffic behind him in lane 1 before waving her across. In short, the claimant has not complained of any deficiency in the actions of the driver of the unidentified vehicle other than that he stopped for her and allowed her to cross. On the basis of the information I have, I am not persuaded that the driver of the unidentified vehicle should bear any responsibility for this accident.

57.  In relation to the Allianz insured vehicle, I find that the driver CA was proceeding well within the speed limit and indeed, at or just above the speed limit applicable to school zones. I further accept that he was keeping a proper lookout at all relevant times and that his driving was appropriate in the circumstances. He says that he thought that the stationary 4WD vehicle was about to turn into a driveway. I find that assumption to be reasonable. I do not accept that he should have foreseen that the vehicles were stopped for a pedestrian. Such an assertion can be made in retrospect but it is impractical for drivers on Sydney streets to take their foot off the accelerator and slow down every time they see a stationary vehicle in the right hand lane, lest there be a pedestrian about to emerge.

58.  I am not satisfied that the possibility of an adult pedestrian emerging suddenly from in front of a tall stationary vehicle and entering the fourth of four busy lanes of traffic was foreseeable to the extent that it required the driver to take action. I am not satisfied that it was foreseeable that a pedestrian would do so without first checking for oncoming traffic.

59.  It is relevant that the claimant was the only person crossing the road at the time, according to LT. This was not a situation where there were several other pedestrians crossing the road that might have signalled to CA that he should slow his vehicle to below the modest speed he was travelling. It is also relevant that the claimant ran into the side of the insured vehicle. The unsigned statement of AH on which the claimant places so much reliance does not persuade me that the insured driver should have acted differently. It is well known that pedestrians do jaywalk from time to time but that does not mean that the insured driver should have taken more precautions than he did on this street and on this day. In my view, the claimant's actions in emerging suddenly into CA's lane without looking and running into the side of his vehicle rendered this accident unavoidable.

60.  The facts of this case are similar to those in Derrick v Cheung, except that that case involved a toddler. Just as the High Court found no negligence on the part of the driver Ms Derrick, I find that CA has not been negligent in his actions leading up to this accident.

61.  It follows that I find that the claimant is wholly at fault for the accident.

Costs and Disbursements

62.  The Claimant submits that she should recover the costs of this application whether or not she is successful. It is submitted that, whereas an unsuccessful party would not recover costs in a court matter, this claimant is not in court and there is nothing in the Regulations that limits the recovery of costs to only successful claimants. The claimant points to the insurer's late change of position in relation to liability, which necessitated a change in the claimant's approach to the dispute, as justifying an award for costs.

63.  The claimant further seeks disbursements in the nature of translator and interpreters fees which, she submits, are claimable for under Clause 20 of the Regulations as unregulated costs. The interpreter and translation fees total $364.65.

64.  The insurer submits that the claimant should not be awarded costs if she is found to be wholly or mostly at fault. Alternatively, it is submitted that maximum costs ought not be allowed.

65.  In the exercise of my discretion, I allow costs and disbursements in this matter in the sum of $1,200 plus GST, or $1,320 inclusive of GST. In my view, the claimant is entitled to some costs, given the insurer's change of position in relation to liability, notwithstanding that she has been unsuccessful in her application. I am not satisfied however that she should recover the entirety of the maximum amount recoverable under the Regulations.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  • For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person
  • Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,320.00 inclusive of GST.

Margaret Holz
DRS Claims Assessor Dispute Resolution Services
6 June 2019