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AED v AAMI Insurance [2019] NSWDRS CA 107

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: At fault – contributory negligence – not wholly or mostly at fault – pedestrian – police report – police – legal costs – alcohol

Legislation cited:

  • Civil Liability Act 2002 (NSW) s 5R
  • Motor Accident Injuries Act 2017 (NSW) ss 3.28, 3.36, 4.17, 7.36, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.445

Cases cited:

  • T and X Company Pty Ltd v Shivas [2014] NSW CA 235
  • Truong v Gordon [2014] NSWCA 97

Parties:

  • AED – Claimant
  • AAMI Insurance – Insurer

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

Miscellaneous claims assessment certificate

AED Certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

  • Claimant: AED
  • Insurer: AAMI Insurance
  • Date of Accident: 13 February 2018
  • DRS Reference10080578
  • Insurer Claim NumberY05389200
  • Date of Internal Review13 July 2018
  • DRS Decision MakerClaims Assessor Richard Buckley
  • Date of Decision30 April 2019
  • Conference date and timeNot applicable- decided on the papers
  • Participating at the Preliminary conference on behalf of the Claimant: David Weng, Solicitor – Benefit Legal
  • Participating at Preliminary conference on behalf of the Insurer: Mar-Lize Crawford of Suncorp Legal  Services

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

  1. For the purposes of section 3.28 of the Act, the motor accident was not caused wholly or mostly by the fault of the Claimant.
  2. Legal costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Regulation 2017 is $1,633.00 plus GST totalling $1,796.30.

Richard F. Buckley
DRS Claims Assessor
Dated: 30 April 2019

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)(e) of the Motor Accident Injuries Act 2017, about a claim lodged by the injured Claimant arising from a motor accident which occurred on 13 February 2018. The Claimant’s late application, was after receiving submissions from both parties accepted by the Dispute Resolution Service in the exercise of its discretionary power.

Documents considered

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

Submissions

2. In short the Claimant submits that he was neither wholly nor mostly at fault in the motor accident of 13 February 2018 in which he suffered injury and that if found guilty of contributory negligence the degree of his culpability was no higher than 10%.

3. In short the Insurer maintains the position that the Claimant was wholly at fault for the accident occurring and that if contributory negligence was to be determined against the Claimant a finding should be made of more than 61% and therefore the Claimant should be found to be mostly at fault. A percentage of 80% was submitted as being appropriate.

Legislation


4. 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 Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

5. I have considered the documents provided in the application and the reply and any further information provided by the parties. I shall firstly set out below my findings of fact with background reasons.

a. The Claimant states that on 13 February 2018 from about 1.00pm to 9..30 pm the Claimant was a guest at a friend’s home at Castlereagh Street Penrith. He consumed alcohol during this visit. The insurer does not deny this factual background,

b. “About 9.30pm I left my mate’s home and started to walk home.” The Claimant at the time was living at a residence at Thurston Street Penrith. The Claimant’s statement is not objected to by the insurer.

c. To get to his home the Claimant had to generally walk in a Northerly Direction and cross Henry Street Penrith. Henry Street generally runs in an East/West alignment.

d. Evans St runs in a generally North/South alignment and crosses Henry Street just east of the Penrith Court house.

e. It is agreed that the Claimant commenced to cross Henry Street from the South Western corner at the site of a pedestrian crossing that spans Henry Street to the North Western corner of the intersection. The geography of the site of the place where the accident is agreed.

f. The insured’s driver (referred to as the “driver”) was driving in a southerly direction on Evans Street proceeding downhill from an overpass (A63 in the Quantum interview of Constable Brett Marks, the principal investigating police officer).

g. The accident occurred at about 10.00pm. It was dark Constable Marks at A140 stated that ( …I don’t believe there’s a lot of street lights there so it’s not a very lit up area.” And at A144 in answer to a question as to the standard of lighting stated as follows: I would say her headlights- her headlights would be the main light in the area. And there was probably a few street lights…”. As to the driver’s view of the intersection as she approached it the constable said, ”There was nothing that  would have obstructed her view.”

h. The Claimant was intoxicated. It is agreed that subsequent to the time of the collision the Claimant’s blood alcohol level was recorded at 0.236. The Insurer submits relying upon a version allegedly given by Constable Marks that the Claimant was “heavily intoxicated” I accept the Claimant’s submission that at page 5 of the COPS report the Claimant’s level of intoxication was described as “moderately affected.” Notwithstanding a submission (A1) made by the Claimant’s solicitor that the “Claimant is also a regular consumer of alcohol and has tolerance to same”  the objective evidence of the blood alcohol reading persuades me to find that at the time of the accident the Claimant was significantly affected by alcohol.

i. I accept the evidence of Constable Marks that the Claimant was wearing dark clothing at the time of the accident. I also infer from his evidence that there were light traffic conditions.

j. The Claimant gave his version of the accident to Constable Marks. At A128 of the Quantum report the constable quoted the Claimant as saying as follows. “I walked towards Henry Street and Lemongrove Road Penrith. I’m pretty sure the man was green so I crossed the road. I then felt a thud and I fell to the ground…” As a consequence of the Claimant’s state of inebriation I cannot rely on his recollection of the state of the control light facing him.

k. The driver also at A124 in a question and answer passage was asked by the Constable “Did you see the man before you hit him?” She said, “No.”  She was then asked how fast she was going and answered, “Under 35 kilometres an hour. I was braking.”

l. As to the point of impact the constable said the Claimant was laying within ten metres of the crossing. The Constable formed the belief that the Claimant was probably just west of the crossing when hit. He was laying on the edge of lanes one and two, but more in lane two.

m. The diver’s vehicle when stopped was not straight in the lane. At a52 the constable said that the driver’s car “was still in the turning motion.” At A68 the constable opined as to the point of impact being between the passenger side headlight and the front quarter panel. Given that the evidence is that the Claimant was hit while the car was in motion he in all likelihood would have been carried or thrown forward with the momentum of the vehicle.

n. Attachment 6 to the Quantum report contains 4 diagrams with measurements of the intersection. The diagram titled “Scene – Photographs” contains a box marked P3 the site from where a photograph was taken. In the next plan under the heading of “Scene – Circumstances” there is in my view a seemingly accurate depiction of the path of the driver’s vehicle before it came into collision with the Claimant.

o. How far did the driver’s vehicle travel from P3 to the putative point of the collision?. The point at P3 can be validly assumed as to a where at the latest the driver would have had an unimpeded view of the crossing illuminated by her headlights. Using the scale on each of the diagrams on there is a straight line length of 50mm. Assuming a slight arc in the driver’s theoretical course she would have travelled in the order of approximately 28 metres.

p. At what speed was the diver travelling. By reference to [k] above it could be validly concluded that the driver had an average speed of 30kmh over the 28 metres to the point of collision with the Claimant.

q. I find that between reaching point P3 to the putative point of collision the driver had the Claimant within her direct and peripheral vision for between 3 to 4 seconds.

r. The Claimant had walked to the point of collision a distance of approximately 3.5 to 4 metres before being struck.

s.I conclude that the driver was not keeping a proper lookout and her negligence caused or contributed to the accident. She had sufficient time to see the Claimant and take steps to avoid striking him.

The applicable law

6. By virtue of the operation of s4.17 of the Act  s5R of the Civil Liability Act 2002n applies as interpreted by the Court of Appeal in T and X Company Pty Ltd v Shivas [2014] NSW CA 235.

7. Apposite in the present case are statements of Basten JA with whom MacFarlan JA was in agreement where at [21] in Truong v Gordon [2014] NSWCA 97 His Honour stated as follows.

“ In terms of possible responses, the culpability of the driver was probably greater. If he had seen the Plaintiff in a 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..”

8. In Truong the driver was determined to be 65% at fault with the pedestrian 35%.

Final determination

9. In order for the Claimant to be mostly at fault his contributory negligence had to be greater than 61%. By reference to my findings and the application of the dicta in Truong I am satisfied that any assessment of the Claimant’s contributory negligence fell below the statutory threshold.
10.I find that the motor accident was not caused wholly or mostly by the fault of the Claimant.

Costs and disbursements

11. 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 resulting in a total costs award of $1,796.30.

Richard F. Buckley
DRS Claims Assessor
Dispute Resolution Service