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ADD v Allianz Insurance [2019] NSWDRS CA 082

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsMostly at fault – cessation of weekly payments – school bus – severe injuries – contributory negligence – intoxication – high blood alcohol – pedestrian – failure to keep a proper lookout
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 3.36, 7.36(4), 7.36(5), Schedule 2(3)(d)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.441
Civil Liability Act 2002
Cases citedPodbrebersek v Australian Iron & Steel [1985] HCA 34
Text cited N/A
Parties ADD – Claimant
Allianz Insurance – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

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 for the purposes of section 3.28 (cessation of weekly payments 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 ADD and the Insurer in respect to whether the claimant was the person most at fault for the accident under Schedule 2(3)(d) of the Motor Accidents Injuries Act 2017 ("the Act").

2.   At about 4 PM on 7 May 2018, the claimant was crossing New South Head Road Double Bay when she was struck by the insured vehicle, a school bus, and suffered very severe injuries.

3.   The claimant sought and received statutory benefits including weekly payments from the insurer. Such was the severity of her injuries that she has been admitted as an interim participant of the Lifetime Care and Support Scheme from June 2018. Her treatment expenses are being met through that Scheme and will continue to be met, at least until June 2020 while she remains an interim participant.

4.   On 29 August 2018, the insurer informed the claimant that it had determined that she was most at fault for the accident and that accordingly her weekly payments would cease after 26 weeks. The insurer assessed the claimant's contributory negligence at 80%.

5.   The claimant sought an internal review of that decision. The insurer conducted an internal review on 26 September 2018. The insurer's Internal Dispute Resolution Officer affirmed the decision.

6.   The claimant subsequently lodged this application on 3 December 2018.

7.   My task in determining whether the claimant was most at fault for the accident involves a weighing up of the respective acts of negligence of the claimant and the insured driver and determining an appropriate apportionment as between them, as envisaged in Podbrebersek v Austra lian Iron & Steel [1985] HCA 34. As was said in that case,

The making of an apportionment as between a plaintiff and a defendant of  their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. 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 damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.

8.   Sections 3.11 and 3.28 of the Act provide that 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 was greater than 61%".

The evidence of the driver

9.   The insured driver had just turned left from Victoria Street at a traffic light. He says that he was travelling very slowly turning the corner and proceeded to drive about 30 to 40 metres in the left lane of New South Head Road as he checked his driver's side mirror in preparation to merge into the second lane. When he saw the claimant 'at the last second', he braked and was able to stop dead. The driver says she hit the front of the bus, bounced about 1 metre forward and landed on the roadway.

10.   I infer that, in order to be able to "stop dead", the bus driver was proceeding fairly slowly as he prepared to merge. He has given various estimates of his speed, between 30 and 45 km/h. There is no suggestion that he was exceeding the speed limit.

11.   The driver says that he looked into his side mirror to check that there was nothing coming from behind as he merged and as he looked back ahead, he first saw the claimant move from his right-hand side. He says that she just ran straight into the path of his bus. He is certain that she crossed from the western side of New South Head Road to the east where his bus was in the first of three city-bound lanes.

12.   It is extraordinary that no witnesses for this accident have been located, given that it occurred on a busy road at 4.00 pm on a weekday. The only witness to the incident, so far as the evidence discloses, is the insured driver. There were a number of school students on the bus, but no-one apparently saw the claimant as she crossed the  road.

The evidence and submissions of the claimant

13.   As I understand it, the claimant has no recollection of the accident.

14.   I have received a recent statement from the claimant's mother, XXX, of 6 March 2019, stating that her daughter was "attempting to walk  from the north side of New South Head Road to the south side, at the intersection where the lights are."

15.   With all due respect to XXX, I do not accept that this incident occurred at the intersection where the lights are. Her recent statement is the first time that such a suggestion has been raised. It is out of keeping with all of  the  evidence, including that of the investigating police officers who placed the accident as having occurred near Gladswood Gardens where the claimant had spent the day working. The submissions and marked photos lodged by XXX in relation to the internal review clearly accept that the incident occurred some distance from the pedestrian crossing. Her solicitor's recent submissions also demonstrate an acceptance that that was the case. I am not persuaded that the accident occurred on the pedestrian crossing or anywhere near it.

16.   The earlier submissions lodged by XXX argue that the claimant could not have been running across the road, given her obesity, her arthritic foot and knee and her inebriation. In my view, it is largely irrelevant whether the claimant was running or walking. If she was walking, then it merely adds to the mystery of how she managed to navigate five of six lanes of traffic before being struck, despite her mobility difficulties.

17.   I note that the claimant was recorded in the police report to have had a blood alcohol reading of 0.303%, which is extraordinarily high. Her solicitor has provided submissions contesting the blood alcohol reading but not challenging that she was intoxicated.

Is the blood alcohol reading accurate?

18.   In light of the extremely high blood alcohol  reading and the  fact that the claimant  had spent the preceding several hours at work, I did ask the parties whether there was independent evidence of the blood alcohol reading, lest this be a typographical error. While the claimant's solicitor points to the absence of information  regarding  the time that the blood sample was taken and the evidentiary chain that preceded its testing, I am not satisfied, for the purposes of this dispute, that such evidence is required. There is other evidence of alcohol involvement, as set out below:

a.   The investigating police officer, Constable Badiyan, when interviewed on 31 January 2019 confirmed that the claimant's blood alcohol reading was 0.303 and quoted the blood vial number.

b.   Her medical file reportedly records that she was struck by a bus while under the influence of alcohol.

c.   A CT scan taken on the morning after the accident contains a history that  the accident was "MVA bus vs pedestrian in context of ETOH", that is, in the context of alcohol.

d.   In submissions in support of  the  internal review, XXX  said, while  arguing that the claimant could not have been running across the  road, that  "her  blood  alcohol level was such that her motor skills would have been greatly impaired and she would have been moving slower rather than faster and certainly not able to run". This denotes an early acceptance by the claimant's mother (who is acting on her behalf in pursuing this claim) that the claimant was in fact, inebriated.

e.   XXX has stated that the claimant had been admitted to hospital a number of times for alcohol related issues.

f.   The claimant (who I note to have suffered a very serious brain injury) is recorded as having informed a neuropsychologist that, prior to her injury, she would drink up to 8 schooners of beer and would become intoxicated three to four times a week. There had been past attempts to abstain, including the attendance at weekly AA meetings some years previously.

g.   Finally, from my experience of motor vehicle claims over several decades, it is unusual to see blood alcohol testing carried out for injured pedestrians.  Here,  a blood test was administered very soon after the accident for the purposes of ascertaining the claimant's blood alcohol level. I infer that there was some indication, perhaps the smell of alcohol, to indicate that she was intoxicated.

19.  On the balance of probabilities, I find that the blood/alcohol reading of 0.303% is correct and that the claimant was very heavily intoxicated at the time that she attempted to cross the road and was struck.

My findings in relation to the actions of the insured driver

20.   I have received extensive submissions from the claimant's solicitor concerning the negligent actions of the insured driver and the  extent to  which those contributed to  the accident. The insurer, in alleging that the claimant was 80% at fault for her injuries, is impliedly accepting that its insured driver was negligent and contributed to the accident to the extent of 20%.

21.   I am satisfied that the bus driver has been negligent, in that he has failed to  observe the claimant's passage across five of six lanes of traffic until the very last moment. I accept that he was travelling well within the speed limit of 50km/h and that he was in the process of merging from the left lane which was about to end into the adjacent middle lane immediately before the accident occurred. The driver's attention was focused on his side mirror as he checked for traffic in preparation for merging. However, that does not absolve him of the obligation to exercise care and skill in the operation of his bus by maintaining a careful watch for other hazards on the roadway and not merely those in the lanes behind him. The claimant must have been visible on the roadway for some seconds before she was struck and yet the driver did not see her until the very last moment.

22.   I find that the driver has contributed to the accident through failing to keep a proper lookout. There is no other evidence of any want of care on his part.

My findings in relation to the Claimant's actions

23.   I find that the claimant has contributed to her injuries by crossing a busy six-lane roadway at a point where it was unsafe to do so and by moving into the path of a moving bus.

24.   The evidence establishes that there was a pedestrian crossing that the claimant might have used to cross New South Head Road had she walked another 15 or 20 metres to the corner of Victoria Street. I note from the statement of the claimant's mother, XXX, that the claimant was intending to catch a bus to Edgecliff Station where she was to meet her mother. The bus stop is some metres further along from the point of impact. I infer that the claimant was taking a short-cut across New South Head Road in order to get to the bus stop, rather than walking the extra distance to the traffic lights and crossing safely there.

25.   I also find that the claimant was heavily intoxicated at the time that she attempted to cross the roadway and that her level of intoxication was sufficiently high to have contributed to her accident.

Balancing the respective acts of negligence

26.   I am satisfied having considered all the evidence and detailed submissions relating to this accident that the claimant's negligent acts well outweigh those of the insured driver and that those negligent acts contributed to her suffering the injuries that she did.

27.   I am further satisfied, having regard to the circumstances of the accident and decided case law in comparable matters, that the claimant's proportion of responsibility for her injuries exceeds 61%. In short, she is the person most at fault for her injuries and the insurer is not required to resume payments of statutory benefits.

Legislation

28.  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

Costs and disbursements

29.  I am not satisfied that the Claimant is entitled to the payment of legal costs as she has been unsuccessful in her application.

Conclusion

My determination of the Miscellaneous Claim is as follows

  • For the purposes of section 3.28 or 3.36, the motor accident was caused mostly by the fault of the injured person

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services