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AEA v NRMA Insurance Ltd [2019] NSWDRS CA 104

Overview

Jurisdiction: Miscellaneous Claims Review

Catchwords: Statutory benefits – contributory negligence – pedestrian – not wholly nor mostly at fault – reversing vehicle – collision – weekly payments of statutory benefits – police report – pedestrian footpath – car park

Legislation cited:

  • Civil Liability Act 2002 (NSW) s 5R
  • Motor Accident Injuries Act 2017 (NSW) ss 3.38, 7.36, Schedule 2
  • Motor Accident Injuries Regulation 2017 sch 1, Part 1(2)
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • AEA – claimant
  • NRMA Insurance– insurer

Disclaimer: This decision has been edited to remove all unique personal identification including the name of the claimant.

Miscellaneous claims assessment certificate

View here

Issued in accordance with cl 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)(g) and (n) of the Act to be a miscellaneous claims assessment matter.

  • Claimant: AEA
  • Insurer: NRMA Insurance
  • Date of Accident: 12 July 2018
  • DRS Reference: 10079058
  • DRS Claims Assessor: Philip Watson
  • Date of Decision: 4 April 2019

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

  1. For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident.
  2. For the purposes of Schedule 2, Section 3(n) the Claimant was not guilty of contributory negligence in respect of the motor accident.
  3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

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

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(g) and (n) of the Motor Accident Injuries Act 2017, about the extent, if any, of the Claimant’s contributory negligence.

1. There is a dispute between AEA, the Claimant, and NRMA Insurance, the Insurer, about the extent of the fault, if any, of the injured person, the Claimant, such as to affect the Claimant’s entitlements for statutory benefits.

2. The Claimant brought this application as a miscellaneous claims assessment matter pursuant to Schedule 2, section 3(n) of the Motor Accident Injuries Act (“the Act”) as being “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule”.  It is apparent it is now also a miscellaneous claims assessment matter pursuant to Schedule 2, Section 3(g).

3. On 12 July 2018 at approximately 1.30 pm, the Claimant was a pedestrian walking through the Rosemeadow Shopping Centre at Rosemeadow when a vehicle being driven by the Insurer’s insured driver, reversed from a parking space and collided with the Claimant causing, what the Insurer has accepted, are more than minor injuries.

4. The Insurer issued a liability decision on 17 December 2018 advising that whilst it accepted the Claimant was not wholly nor mostly at fault, that the Claimant was assessed as being contributorily negligent to an extent of 15%.

5. The Claimant sought an internal review of that decision on 14 January 2019 however the Insurer failed to complete the internal review as required within the Motor Accident Guidelines.  It did not oppose the filing of this application.

Document considered

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

Submissions

7. The Claimant says that in all of the circumstances she is not at fault to any extent.  She says she had just entered the carpark area of the shopping centre when the vehicle reversed and hit her.  The Claimant disputes that she failed to keep a proper lookout for her own safety, failed to take reasonable care or failed to take appropriate evasive action.  She says the path that she was walking was the logical route for her to take, that she was keeping a lookout as she walked and that there was in effect no opportunity for her to take any evasive action.

8. The Insurer submits that it is clear that neither the Claimant nor the driver saw each other before impact.  It says that there was a footpath available to the Claimant which would have avoided her walking in the area where the car was reversing.  It says that the Claimant should have exercised greater care by using the footpath and that she should have become aware of the vehicle reversing before it collided with her and that therefore she failed to keep a proper lookout.

9. I raised with the Claimant’s solicitor whether the Claimant wished to proceed with this application, noting that she had not sought nor received weekly payments of statutory benefits and the Insurer’s decision as to contributory negligence would not affect her continuing entitlements to payments of statutory benefits by way of treatment, as the Insurer had conceded.

10. The Claimant’s solicitor advised that the Claimant intends to make a claim for weekly payments of statutory benefits on the basis that she has lost the opportunity to carry out babysitting work that would have been available to her.  This claim is yet to be formulated and advised to the Insurer.  The Claimant therefore submits that this application should proceed and a determination be made as otherwise the Claimant’s weekly payments, if entitled, would be reduced by 15% pursuant to section 3.38 of the Act.

11. The parties informed me that the matter could be determined on the papers and in the circumstances sought that I make an assessment of the Claimant’s contributory negligence, if any, acknowledging that this may be a figure above or below the Insurer’s assessment.

12. I indicated to the parties that I would provide my Certificate and Reasons on or before 9 April 2019.  Both parties indicated that they did not wish to provide any further documents nor submissions.

Legislation

13. 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

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

15. I have already set out a summary of how the accident occurred.  There can be no doubt that the insured driver was at fault and the only question for me to determine is whether the Claimant was partly at fault also, as submitted by the Insurer.

16. The driver of the car submitted to a record of interview with the Insurer’s investigator on 5 October 2018 and I have been provided with a copy thereof.

17. The insured driver says that he had parked in the last parking space in the south eastern corner of the shopping centre carpark.  Adjacent is a lawn area, a large sign and a footpath for pedestrians.  This is shown in the plans and photographs attached to the investigator’s report.

18. The insured driver told the investigator that he reversed his car straight back from the space looking in his mirrors before he did so.  He said he did not initially realise that he had hit the Claimant, in fact he thought he had struck the gutter.  He said the collision was at the rear passenger side quarter of his vehicle.  He fully conceded that he did not see the Claimant at all before hitting her with his car.  He conceded that he had run over the Claimant and that his car “rose a little bit” with the rear left tyre.  He had kept going because he had thought he had hit the gutter only.  He agreed that he knew the carpark well as he had lived in Campbelltown for 24 years.  He ought to have been aware of the pedestrian footpath leading to the carpark immediately behind the car.

19. The accident was reported to the police and one of the investigating police officers, Probationary Constable Luke Westall, provided an interview to the Insurer’s investigator on 3 August 2018.  He says that a statement was taken from the insured driver at the scene, which confirms what he told the investigator.  The insured driver told the police that when he thought he had hit the gutter he stopped to check and got out of the car and could hear an old lady moaning and saw that she was on the ground behind his car.  The Constable issued the insured driver with an infringement notice for not reversing his vehicle safely.

20. The Constable also obtained a version of the accident from the Claimant which, in part, read

“As I walked through the carpark near Woolworths, a man driving a car was reversing out of a car space.  The driver did not see me and hit me on my left side, causing me to fall onto my right side.  The driver continued to reverse and the car’s tyre rolled over my left foot.  The driver then moved the car forward and stopped the vehicle”.

21. Constable Westall said that the Claimant told him that as she walked past the car “it came back on her”.  In the Constable’s opinion, the driver should have been able to see the Claimant.

22. The Claimant agreed to answer questions put by the Insurer’s investigator and the questions and answers are attached at A4 and A5 to the application.  The Claimant said that the first she saw the vehicle was when it hit her from behind.  She said she was aiming to step onto the first of three islands which are in the carpark when she was hit on her left side.  The photographs show concrete islands separating the parking spaces from the trafficable areas in the carpark and leading from where the accident happened to the shopping centre.  She said the collision caused her to fall to the ground and she saw the car moving towards her and tried to pull herself away but couldn’t.  She said she did not hear the car before the impact.  She said she was walking from the bottom of the carpark towards the shops.

23. The photographs and diagram of the shopping centre carpark clearly show that the Claimant entered onto the carpark from a formed concrete pedestrian footpath which leads directly to the area behind where the insured driver’s vehicle was parked.  The photographs also show the concrete islands that the Claimant referred to which would take her in the most direct route to the shopping centre.

24. The Insurer submits that the diagrams and photographs show that there was a footpath available to the Claimant as an alternative route.  It submits that a reasonable person in the position of the Claimant would have exercised greater care for her safety by electing to use that footpath.

25. There is no doubt that there is a footpath which proceeds on the outer southern side of the carpark and which is in front of where the insured driver’s vehicle would have been parked.  It proceeds along the southern part of the carpark towards the main entry to the shopping centre.  However the diagram attached to the investigator’s report shows the footpath ending at the trafficable area of the entry and not continuing into the shopping centre.  There are no photographs which clearly show the course of the footpath.

26. Therefore on the information available to me if the Claimant had taken that route she would then have been walking on the trafficable area when vehicles were entering and exiting the centre and likely at a speed greater than would be expected of vehicles in the carpark area itself.  I do not regard that therefore as being an alternative or safer route that a reasonable person would have used at the time.

27. The Insurer further submits that the Claimant should have noticed the insured driver’s vehicle and heard the sound of the engine and seen the reversing lights.  It submits that the Claimant must have walked into the path of the reversing vehicle when the impact occurred otherwise the reversing sensors on the insured driver’s vehicle would have activated.  It submits therefore that the Claimant failed to keep a proper lookout.

28. The insured driver does not know where the Claimant was when he commenced to reverse because he did not see her at any time prior to the collision.  He did however mark on a photograph where the Claimant was after the accident and this was some distance from the footpath and to the left rear of his vehicle.  I do not have any photographs of the insured driver’s vehicle to show the position of the rear sensors and whether, the Claimant being in that position, would have activated them.  Therefore there is no evidence that the Claimant walked into the path of the reversing vehicle.  Her description of the accident to the Police is clearly a reconstruction in hindsight.

29. I note that the Claimant is a 76 year old woman.  She told the investigator that she was not hurrying.  It is unlikely she would have been walking at a fast pace.

30. According to the positions marked by the insured driver on the photographs, it would appear that both his vehicle and the Claimant had travelled about the same distance when the collision occurred.  I think it is a matter of common sense, that his vehicle is likely to have traversed that distance in shorter space of time than the Claimant was able to walk.  I would not accept, therefore, that the Claimant has walked into the path of the reversing vehicle.

31. Rather I think it is more probable in all the circumstances that the vehicle has commenced to move after the Claimant has left the footpath and was crossing the area where the insured driver was to reverse his vehicle.  This would mean that the Claimant was then walking away from his vehicle at the time of the collision and would then not have the opportunity to see any reversing lights.  In any event, the insured driver does not say whether the reversing lights on his vehicle were working and the Claimant says she was hit from behind.

32. The Insurer further submits that the Claimant should have heard the insured driver’s vehicle.  That may be the case if there were no other vehicles around.  I note, however, that this is a large carpark of what appears to be a fairly substantial shopping centre and it is likely, at the time of the accident, at about 1.30 pm, that there would have been multiple vehicles in the carpark and a number of them moving.  In addition, there is no information before me to indicate the level of sound that the insured driver’s vehicle would have been making at the time it reversed.  Many vehicles are very quiet and I note it would only have been travelling at a low speed given that he was reversing out of a parking space.  I am unable to find, therefore, as the Insurer submits that the Claimant should have been aware of the sound of the insured driver’s vehicle before the collision.

33. I note the Claimant says that she was using a walking route through the carpark that she had done on many occasions.  She says she goes to the shopping centre at least four times a week, always using the same path and, it would appear, had always done so safely.  The design of the pathway invited pedestrians to use the route that the Claimant was adopting.  There can be no criticism of the Claimant’s choice of route, in my view, and I am unable to find, as the Insurer submits, that she failed to keep a proper lookout.  She would have to be watching for vehicles ahead and to the sides of her, both parked vehicles and moving vehicles.  Her attention would not be solely on the insured driver’s vehicle which, as I have already found, must have started reversing after she had passed it when stationary and was proceeding towards the shopping centre.

34. The Insurer refers in its submission to the applicable law.  Section 5R of the Civil Liability Act, 2002, provides that 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.  The standard of care required is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time.

35. The Insurer also refers to the well known authority of Podrebersek -v- Australian Iron and Steel Pty Ltd [1985] HCA 34.  At paragraph 10 the Court said “The making of an apportionment as between a Plaintiff and a Defendant of their respective shares and the 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 damage ……”.

36. Having regard to the matters that I have set out above, I am satisfied that a reasonable person in the position of the Claimant would have exercised the same standard of care as she did.  She was entering a carpark by a designated route and one which she traversed regularly each week.  She had done so with safety in the past.  It was the most direct route to the shopping centre.  She would need to have been watching for vehicles that might approach from various directions and as I have already found, was already past the insured driver’s vehicle when it started to reverse.  To find otherwise would involve a finding that the Claimant kept walking whilst seeing the insured driver’s vehicle reversing towards her.  They were in very close proximity given where his vehicle was parked and the end of the pathway.  For the reasons that I have already stated, I find that is not the case as both the vehicle and the Claimant had covered about the same distance before the collision.  In those circumstances, it is more probable that the Claimant had started walking from the edge of the footpath and away from the insured driver’s vehicle before he started to reverse.  This would not enable her to see him reversing and I have already dealt with the question of the sound of the vehicle.

37. I am not satisfied that the Claimant has departed from the standard of care of a reasonable person and it is clear that the accident was caused wholly as a result of the fault of the insured driver for reversing his vehicle and not seeing the Claimant as he did so.  According to the police officer he should have seen her.  He should also have been aware that there was a pedestrian footpath entering the carpark at the rear of his vehicle which should have alerted him to the likely presence of pedestrians.

38. In the circumstances, I am not satisfied that the Claimant has been responsible for any contributory negligence.  The Insurer bears the onus of proof in this regard, given it makes the allegation and I am not satisfied on the material before me, and for the reasons that I have stated above, that it has discharged that onus.

Cost and disbursements

38. The Claimant has been successful in this application.  I note that this is a miscellaneous claims assessment matter for which costs may be awarded to a Claimant.  The Motor Accident Injuries Regulation 2017 at Schedule 1, Part 1, Section 3 provides that the maximum costs for such legal services is an amount of $1,633.00 (with indexation).

39. I am satisfied that the Claimant is entitled to the payment of legal costs which I allow in the sum of $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  • For the purposes of section 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident
  • For the purposes of Schedule 2, Section 3(n) the Claimant was not guilty of contributory negligence in respect of the motor accident.
  • Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

Philip Watson
DRS Claims Assessor
Dispute Resolution Service