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AEH v NRMA Insurance Limited [2019] NSWDRS CA 111

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – contributory negligence – motorcycle – t-intersection – collision – police report – police interview – failed to exercise reasonable care – legal costs
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 7.36(5), schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties AEH - Claimant
NRMA Insurance Limited - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Amended

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)[G] of the Motor Accident Injuries Act 2017, about whether the Claimant’s entitlements to Statutory Benefits comprising weekly benefits (but not treatment and care) should be reduced after 26 weeks  because of the Claimant’s contributory negligence.

1.  The facts of this accident are on 18 August 2018, the Claimant was riding his motorcycle along Greenwood Parkway at Gordon Springs.  As he approached the intersection of Greenwood Parkway and Flagship Ridge, the driver of the Insured motor vehicle exited Flagship Ridge Road, and failed to stop or give way to the Claimant’s oncoming motorcycle.

2.  The Claimant took evasive action and, in an effort to avoid colliding with the Insured motor vehicle, tried to swerve around the said vehicle by increasing speed.  Unfortunately, he was unable to avoid a collision, and as a consequence he sustained certain injuries.

3.  The Insurer has accepted liability, however, have alleged 20% reduction for contributory negligence.

4.  The Insurer has alleged contributory negligence on the following grounds.

a.  The Claimant was a learner driver.

b.  The Claimant failed to exercise a duty of care and attention to accelerate to avoid a collision.

c.  The Claimant failed to slow down or brake.

d.  The Claimant failed to keep a proper lookout.

e.  The Claimant was travelling at an excessive speed in the circumstances.

5.  The Claimant seeks to challenge that determination.

Documents considered

I have considered the documents provided in the Application and the Reply and any further information provided by the parties.

Insurer's submissions

7.  The Insurer has served detailed submissions (document R1) dated 9 April 2019.  The Insurer refers to the following documents:

a.  Police report (document R8).

b.  Ambulance report (document R9).

c.  Interview with Senior Constable Linda Thoms (document R10).

d.  Insured driver statement (document R11).

8.  Essentially, the Insurer submits the Claimant was guilty of contributory negligence for the following reasons in the submissions:-

“38.  The Insurer submits that a reasonable person in AEH’s circumstances would not have gone on the wrong side of the road and accelerated considering that the car was in fact making a right-hand turn.

39.  The insurer submits that a reasonable person would have applied their brakes and reduced the speed of the motorbike.  The Insurer is of the view that the evidence shows that AEH departed from the standard of care of the reasonable man (Pennington v Norris [1956] HCA 26).

40.  AEH’s legal representative has submitted that there is no evidence that suggests whether slowing down or braking within a period that AEH had would have avoided the accident at all.  As per Justice Meagher at [35] in Marien v Gardiner [2013] NSWCA 396, whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident.  The duty of the driver of a motor vehicle to users is to take reasonable care for their safety having regard to all the circumstances.  The exercise of reasonable care involves reasonable attention to all that is happening on and near the roadway that may represent a source of danger (Manley v Alexander [2005] HCA 79).”

9.  It is for this reason the Insurer submits the Claimant’s contribution to the collision should be assessed at no less than 20%.

10.  It is noted Senior Constable Linda Thoms questioned the Claimant in relation to how fast he was riding at the time of the accident (document R10).  The Claimant responded as follows:-

“A59.  At the time I was riding about 55 to 60 kilometres when I noticed he had turned across my lane.  I increased to about 65 kilometres to get around him.”

11.  However, the Claimant also stated the following at A59:-

“A59.  I was on Greenwood Parkway heading towards Tengala Drive where I intending to right turn.  Before I got to Tengala Drive I prepared myself to brake and gear down.  I saw a set of headlights poking out of a side street.  The side street was Flagship Ridge which was on the left side.  The car did not stop at all.  It looked like it was travelling at about five kilometres per hour.  I tried to veer on the right side of the road to avoid him, and he turned to the right.  When he turned I was on the opposite side of the road and we collided.  I collided with the front left side of his car.

The car hit the left side of the bike and engine, chucking the bike and myself into a 180 and forcing me the ground.”

Claimant's submissions

12.  The solicitors for the Claimant submit the Insurer’s reasoning is flawed and incorrect based upon the following reasons:-

i.  “No evidence has been presented at this stage that suggests the actions taken by the Claimant to avoid the accident were not appropriate in the circumstances.

ii.  In accelerating to 65kph, the Claimant took evasive action to avoid a T-bone collision, which otherwise would have resulted in more serious injury.

iii.  There was no evidence to suggest whether slowing down or braking within the period of time that the Claimant had, would have avoided the accident at all.”

13.  Furthermore, the solicitor for the Claimant submits as follows:-

“The Claimant has advised that he took all the appropriate measures in the circumstances to avoid the incident, however, was simply unable to avoid the collision given the time he had to react.”

Reasons

14.  The onus of proving contributory negligence rests upon the Insurer.

15.  In deciding whether the Claimant was guilty of contributory negligence, or to what degree, I must have regard as to the standard of care set out in Section 5R of the Civil Liability Act (NSW) 2002.

16.  I note in the interview with the Insured’s driver (document R11), the Insured’s driver was not asked to express an opinion, whether or not, if the Claimant had applied the brakes of his motorcycle he would have been able to avoid the collision, or at least slowed the motorcycle down to a speed in which any collision would have been of a more minor nature.

17.  Furthermore, it has not been put to the Insured’s driver whether the action by the Claimant in accelerating his motorcycle and attempting to go around the Insured’s motor vehicle was reasonable in the circumstances.  In my view, these propositions should have been put to the Insured’s driver.

18.  The only relevant statement by the Insured’s driver regarding the action taken by the Claimant in an effort to avoid the collision is recorded at paragraph 27 as follows:-

“27.  I couldn’t say how fast the bike was travelling at as it all happened so quickly. Later on I did overhear the rider tell one of the ambulance guys that he estimated he was travelling at about 65 kms per hour.  XXXX heard him say that as well.”

19.  Furthermore, in the statement of interview between AEH and Senior Constable Linda Thoms, (document R10), it is recorded on page 6 the following:-“Before I got to Tengala Drive I prepared myself to brake and gear down.  I saw a set of headlights poking out of a side street.  The side street was Flagship Ridge which was on the left side.  The car did not stop at all.  It looked like it was travelling at about five kilometres per hour.  I tried to veer on the right side of the road to avoid him, and he turned to the right.  When he turned I was on the opposite side of the road and we collided.  I collided with the front left side of his car.  I was on the right side of the road when we hit.”

20.  In this record of interview, Senior Constable Thoms, failed to ask the Claimant why he believed it was necessary to accelerate and go around the Insured’s motor vehicle rather than apply the brakes of his motorcycle.

21.  It is apparent because the Insured’s driver continued to make the right-hand turn and not stop his vehicle, the Claimant has had no alternative but to try and go around the vehicle by moving over to the incorrect side of the roadway.

22.  I appreciate the Claimant would have limited reaction time, but there is no explanation as to why he did not try to apply the brakes of his motorcycle, or at least veer to the left side of the roadway, rather than to drive over onto the incorrect side of the roadway.  I note the Claimant is a learner driver and this may have played some part in causing him to take the evasive action he chose.

23.  There is clear negligence on the part of the Insured’s driver but I am not satisfied the Claimant has not contributed to his accident by not applying the brake of his motorcycle but rather choosing to accelerate around the Insured’s vehicle.  Furthermore, the photographs of the t-intersection in question indicate a fairly wide street and possibly the Claimant could have taken the alternative decision to move to the left-hand side of the roadway and endeavour to at least brake and/or drive past the Insured’s motor vehicle, which had moved over onto the right side of the roadway.

24.  In my view, a fair apportionment of contributory negligence on behalf of the Claimant is the amount of 10%.

Findings

25. I find for the purposes of Section 3.38, the Insurer is entitled to reduce statutory benefits payable in respect of the motor vehicle accident by 10%.

Legislation

26.  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 (NSW)

Costs and disbursements

27.  In the circumstances, the Claimant is entitled to payment of legal costs.

28.  I will allow costs in the sum $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

29.  For the purposes of section 3.38 the Insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 10%.

30.  Effective Date: This determination takes effect on 18 June 2019.

31.  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.


David R Ford
DRS Claims Assessor
Dispute Resolution Services