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AEM v QBE Insurance [2019] NSWDRS CA 116

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – mostly at fault – intersection – pedestrian – peak hour – police report – median strip – contributory negligence – failed to use controlled pedestrian crossing
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 7.36(4) & (5), Schedule 2(3)(b)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

N/A

Text citedN/A
Parties AEM - Claimant
QBE Insurance - 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

ClaimantAEM
InsurerQBE Insurance
Date of Accident1 February 2018
DRS Reference10087518
Date of Internal Review14 November 2018
DRS Claims AssessorMargaret Holz
Date of Decision18 June 2018
Conference date and time30 May 2019
Conference venue and locationLevel 21, 1 Oxford Street Darlinghurst
Attendances for ClaimantUnrepresented
Attendances for InsurerAndrew Gorman of McCabe Curwood

The findings of the assessment of this dispute are as follows

  • For the purposes of sections 3.11 and 3.28 the motor accident was caused mostly by the fault of the injured person

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

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services

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) and (e) of the Motor Accident Injuries Act 2017, about whether for the purposes of sections 3.11 and 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons mostly at fault or to injured persons with minor injuries) the motor accident was caused mostly by the fault of the injured person.

1.  There is a dispute between AEM (the claimant) and QBE Insurance (the insurer) as to whether the claimant was mostly at fault for the injuries suffered in the motor accident.

2.  At about 8.00 am on 1 February 2018, the claimant was crossing Victoria Road, North Parramatta, when she was struck by the insured vehicle. She suffered injury and claimed statutory benefits from the insurer.

3.  The insurer accepted the claim, but later advised the claimant that payment of weekly benefits and treatment expenses would cease from 3 August 2018, on the basis that she was mostly at fault for the accident.

4.  The claimant sought an internal review of this decision. On 14 November 2018, Shannon Martin, Internal Review Specialist, affirmed the insurer’s earlier decision.

5.  The claimant subsequently lodged this Application for a determination of whether she was the party most at fault for the accident.  The application was referred to me on 9 May 2019.

6.  On 17 May 2019, I conducted a teleconference at which the claimant, who is unrepresented, attended by phone. Mr Andrew Gorman, Solicitor of McCabe Curwood, represented the insurer. I made directions for the further preparation of the matter including the provision of written submissions by Mr Gorman. I also appointed a face to face conference to be held on 30 May 2019.

7.  The claimant was unrepresented at the assessment conference. Mr Gorman attended on behalf of the insurer. ;I heard arguments from both the claimant and Mr Gorman and at the end of the conference, I reserved my decision.

The location of the accident

8.  Victoria Road North Parramatta, where the accident occurred, runs east/west.  The speed limit is 60km/h.  The accident occurred near the intersection with Macarthur Street where there are traffic lights.  There are controlled pedestrian crossings on all four sides of the intersection.

9.  The claimant was crossing the road from north to south some little distance west of the intersection at the time that she was struck.  Victoria Road at that point has four lanes of traffic eastbound, the fourth lane nearest the median strip being a dedicated turning lane.

10.  On the other side of the median strip are a number of westbound lanes.

11.  The accident occurred during the morning peak hour on a Thursday when traffic heading to the city was heavy.

12.  On the day in question, traffic in the first three eastbound lanes was stationary at the lights. In the third eastbound lane was a stationary garbage truck. Two to three metres behind the garbage truck was a car driven by a witness, BW.

Undisputed facts

13.  The claimant usually crossed Victoria Road at the traffic lights. On the day in question, she elected not to do so, having stood at the lights for some time. Instead, she proceeded about ten metres to the west of the intersection and there, made her way through the first three lanes of stationary traffic. In crossing the third lane, she passed between the rear of the garbage truck and the front of BW’s vehicle.

14.  As she entered or attempted to cross the fourth turning lane, she was struck by the insured vehicle. The insured vehicle was the only vehicle proceeding along the turning lane at that time.

The Claimant's evidence

15.  In her statement to police given on 13 February 2018 (twelve days after the accident) the claimant stated:

“I walked across the road and passed all the three lanes and stopped in the middle lane on the median strip.  I looked towards the traffic lights on the eastern side and observed it was a green arrow.  Observing this, I commenced to cross the road and then I do not remember what happened.  Next thing I remember I was in hospital.”

16.  The claimant has provided a copy of a document she wrote to the investigating police officer concerning the police report.  She says that attempting to cross the road, ten metres from the traffic lights, she:

“…walked past the traffic that was stationary in lanes 1, 2 and 3, approaching lane 4, looked towards west, checked for vehicles and continued to walk to the middle of the lane 4 and then hit by an Audi A3.

From witness statement, I understand that I got hit by the car going at 50-60km/hr.  After the impact, I hit the windshield of another car.”

She adds:

“I was very careful and checked every lane westerly before crossing each lane, instead of just blindly running across.

…When I checked westerly direction there was no car on the fourth lane coming towards the traffic light.”

17.  Attached to her request for this matter to be assessed is a document in which she says:

  • “The police report based on the witness at the scene, says, that after crossing lanes 1, 2 & 3, I stopped and looked in a westerly direction to ensure no vehicle in lane 4, before entering lane 4.  The driver’s statement says that the car hit me was parallel to a car that was behind a truck and I was crossing just at the front end of the truck.  If that was the case I would have definitely seen the car and not crossed the road.  The car was definitely not at that near distance when I crossed.  This was a right turning lane of about 60 metres length from the traffic light and I did not see any car in that lane when I checked in the westerly direction.”
  • “The police report based on the witness at the scene, says the car was driving at about 50 to 60km/h at the time the accident happened, whereas the driver’s statement says the car was travelling at 20 to 30 km/h.”

18.  The claimant points out that, “The facts that were considered to determine I was more than 61% at fault are not matching the witness statement in the police report.”

Evidence of the insured driver

19.  The insured driver has provided a statement to police and also to the insurer’s investigator, Quantumcorp.

20.  In her statement to police she said she was in the lane about to make a right-hand turn “when suddenly someone hit my car because I felt a jerk and my windscreen broke.   I braked.  I still did not know what happened at this stage, but then I saw a truck driver attending to someone on the ground saying don’t move, don’t move.  This is when I contacted triple 0.”

21.  When asked by police why she could not see the woman crossing the road she stated:

“I could not see the woman crossing the road as I was looking at the car stopped in the middle lane and as I passed the car on the right I briefly looked at the truck that had broken down and that’s (when) I felt the bang.   I was also slowing down at this stage as I believed the truck driver may open his door suddenly.”

22.  When asked whether she had seen the woman crossing the road at all from the other side of the road she answered “no”.  When asked was there anything else that may have distracted her from seeing the woman, she stated “no”.

23.  The insured driver provided a statement to QBE’s investigator on 28 May 2018.  Throughout her statement she has misstated the directions by 180°. In extracting parts of her statement, I have highlighted the directions which are incorrect. For example, "east " should read “west” and vice versa.

24.   She stated that she was travelling along Victoria Road in a westerly direction at about 40km/h and intending to turn right onto Macarthur Street.  She said:

“I had just safely entered lane 4 of 4 and I was approaching the intersection when I saw a stationary truck in lane 3 of 4 in front of me to the west.  The truck was about 3 to 4 metres east of the intersection stop line. The truck had hazard lights flashing.  I don’t know why the truck was stationary in the middle of the road.

I saw the traffic lights facing me display a red right-turn arrow and a solid green circle.

There were two cars stationary behind the truck and they had the left indicators flashing.  It looked like they wanted to enter lane 2 of 4 and drive around the truck.  They may have gotten stuck behind the truck. There were no other vehicles in front of me in the lanes.  I was about  50 metres east of the stationary truck when I first saw it.  The cars were a few metres behind the truck and they were slowly crawling towards the truck before they initiated the merge.

I approached the truck and I was cautious in case the truck driver exited the vehicle.  I slowed down to 20 to 30km/h and approached the intersection as my light was red and I knew I had to stop.  I was watching the truck and the stationary cars also to be safe.

I was about to overtake the cars and truck slowly when the collision occurred.  I was parallel to the car directly behind the truck and I first saw the pedestrian step out from between the truck and car behind it. She stepped out into my lane.  I was travelling around 20 to 30km/h and in the centre of my lane.

The pedestrian appeared to be crossing the road whilst she was running. She was not using any pedestrian crossing. The closest pedestrian crossing was about 15 to 20 metres west of where she crossed the road and the collision happened.

I never saw the pedestrian at all before she stepped out into my lane. The pedestrian crossed the road from the shops to the south and she was travelling north.

The gap between the truck and the car behind it was only about 1 to 2 metres. It all happened in a split second.

I had no time to take any evasive action.

As soon as the pedestrian came running out from between the vehicles to my left she ran into my path.  Luckily, she did not run directly in front of me.

The impact then occurred.  The pedestrian collided with my passenger side mirror and front passenger side panel around the front wheel.

My speed at the point of impact was 20 to 30km/h and the pedestrian was running across the road. The point of impact on the road was in lane 4 of 4 about 15 to 20 metres east of the intersection of Macarthur Street.

After the pedestrian hit my car, she bounced off and her body hit the rear of the stationary truck.  She then fell back onto my vehicle’s windscreen again and then fell down onto the road behind the truck in lane 3 of 4.

My vehicle was only about 1 metre from the truck when the impact first occurred and I was driving west so the pedestrian did not get propelled further than 1 metre.

The force of the impact with the pedestrian and my vehicle was fairly significant.  Her body cracked my front glass windshield when she hit it. No airbags deployed in my car.

Immediately after the pedestrian first touched my car, I applied the brakes very hard and came to a complete stop within 1 to 2 metres of the impact location.  I stopped just next to the truck towards the back of it.

The damage to my vehicle was a smashed windscreen and a few dents on the passenger side mirror and front side panel.

At the time of the collision there was nothing blocking my vision to the front or left and right sides of my vehicle.”

Evidence of the independent witness – BW

25.  The police notebook does not have a statement of BW, but contains details of what he told Police.  This appears to read as follows:

“Witness in lane 3 of 4 behind truck.  Lights were red.  All traffic was stopped.  Observed pedestrian in-between truck and in front of his vehicle. She looked right and then started to walk on across road when other vehicle collided with her.”

26.  The typed police report contains a version of what BW said which does not accord with the sparse details attributed to him in the notebook.  It is recorded in the narrative in the police report as follows:

“The pedestrian walked through lanes 1, 2 & 3 and stopped at the edge of lane 3 in front of the witness vehicle.  She was observed to look in a westerly direction towards the traffic travelling westbound (sic) and soon after attempted to cross lane 4 of 4 when she misjudged the speed of vehicle 2 which resulted in vehicle 2 colliding with the pedestrian.”

27.  BW gave a detailed statement to Quantumcorp’s investigator on 28 June 2018.  He described being stopped behind a large garbage truck in lane 3, two to three metres behind it.  He said:

“Vehicles had stopped in lanes 1 and 2, but lane 4 to my right was clear until the collision.”

“I waited at the red light for about 30 to 40 seconds before I saw the pedestrian.  I first saw her when she walked in front of my vehicle. She walked across the road from the north in a southern direction towards the 7 Eleven service station.

She was not running. She did not use the designated crossing.  She walked out on the road about 10 to 15 metres from the crossing.  She walked about 1 metre in front of my car and about 1 metre behind the truck.

While the pedestrian was walking directly in front of my car, I saw her look to the west behind my vehicle.  I was driving a large ute with a cabin on the back so it would have been hard for her to see past it down lane 4.

The pedestrian then stopped in front of my ute.  She looked to the east for oncoming traffic.  She did not look back to the west again.  She just stepped out onto lane 4 while still facing the east.  The traffic lights facing me were red the entire time.

I never saw the white hatchback approach in my mirrors.  I saw the pedestrian take about 1 to 2 steps out into lane 4 and I first saw the white vehicle. The vehicle was travelling east on lane 4 and there was no other cars in front of it.  I am not sure if there was any right turn arrow on the traffic lights for vehicle in lane 4, but that lane is a right turn lane.

The white vehicle appeared from my right and was just about to overtake my car. The pedestrian stepped out directly into the path of the vehicle at the last second.  The vehicle was travelling between 40 to 50km/h. The front passenger side of the vehicle collided with the pedestrian.

The pedestrian was propelled off the car and into the windscreen of the car.  Her head hit the windscreen and cracked the glass.  The vehicle appeared to be driving in the centre of the lane.

The pedestrian was then propelled forward from the impact.  I think her legs hit the back of the garbage truck.  She landed on the road between my car and the garbage truck and she was on the lane dividing line between lane 3 and 4.”

28.  He added:

“I don’t think the vehicle driver had any chance to take evasive action.”

“The pedestrian looked like she hit the bonnet of the car and then got propelled into the windscreen.”

Documents considered

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

Submissions of the parties

30.  The insurer has provided detailed submissions in which it appears to accept some liability on the part of the insured driver.  Indeed, such can be inferred from the insurer’s internal review finding where the Internal Review Specialist states:  “While it is accepted that your conduct was not the sole conduct of the accident, I have determined that you are more than 61% contributory negligent in the accident and therefore, mostly at fault.”

31.  The insurer’s submissions address contributory negligence and point to the following as constituting negligence on the part of the claimant:

(a)   Failing to cross a busy arterial road at a nearby intersection in accordance with the traffic lights.

(b)   Attempting, on foot, to cross a busy arterial road in moderately heavy traffic.

(c)   Failing to look in the direction of approaching traffic before stepping into the path of the insured vehicle.

(d)   Failing to take care for her own safety.

32.  The insurer relies on a number of decisions of the NSW Court of Appeal, where pedestrians were struck while crossing roads, three of them contrary to pedestrian traffic lights and where the findings of contributory negligence were between 75% and 80%.  It is submitted:

“Weighing up the relative culpability of the parties, QBE submits that the scales must fall heavily on the side of the claimant who has exhibited a reckless disregard for her own safety in perilous conditions.  Her culpability is all the more for her election not to make use of a controlled pedestrian crossing, just metres away.”

33.  The insurer submits that the contributory negligence should be assessed at at least 70%.

34.  The claimant had the opportunity to make submissions at the assessment conference.  She is an intelligent lady who submits that the driver must have been speeding if she was driving at 50 to 60km/h so close to traffic lights. She submits that the turning lane was 70 metres long and that the driver had ample opportunity to stop after entering the lane and leading up to the position where she was crossing.

35.  The claimant was adamant at the assessment conference that she was past the halfway point in crossing lane 4 at the time that she was struck.  She maintained that she had a clear recollection of this, although I had earlier asked her what he last recollection was before the impact and she stated that it was looking to her right at the end of lane 3.  She could not explain to me why she did not see the insured vehicle and stated that she had been walking very slowly across the road.

36.  The claimant relies heavily on the narrative in the police report about her having looked to the right before crossing lane 4.  She submits that the insured driver was speeding and not looking out for all the things that might happen. She submits that it would be fair to apportion liability 50-50.

Legislation

37.  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

Reasons

38.  I find that the claimant is a witness of truth but that she is mistaken in her recollection of some aspects of the events leading up to her accident. I do not accept that she was halfway across lane 4 before she was struck. I do not accept that she crossed at the front of the garbage truck rather than behind it. It is relevant that in her initial statement to police, just a few days after the accident, she did not state that she looked to her right immediately before commencing to cross lane 4. I accept that she did check for traffic to her right at an earlier point but did not do so again before stepping out. In my view, her subsequent recollection is mistaken.

39.  In many respects, I find the evidence of the insured driver to be unsatisfactory, and especially the version of events recorded by the investigator where the stated directions are the opposite of what they should be.  The driver stated to police that she did not know what had happened even after feeling a jerk and her windscreen breaking. I am not satisfied therefore that she saw the claimant at all before the collision. She did not see her enter the lane. She did not see her running. The driver seems to have been focusing on BW’s car and on the garbage truck, believing that it was broken down because its lights were flashing. Her evidence about vehicles pulling out to go around the garbage truck is not repeated in any other version of events and I have concerns about the reliability of her evidence generally and the particular her statement to the investigator.

40.  Having said that, I am not satisfied that the insured driver should have been paying particular attention to the possibility that a pedestrian might be in the vicinity and about to step into her path or that she should have altered her speed and direction to take into account that possibility. I am not satisfied that she was speeding or driving in a manner that might be considered reckless.

41.  Having regard to the evidence of the independent witness BW, whose version of events I accept, I find that the claimant was walking across a busy four-lane road at peak hour on a week day, about 10 to 15 metres from a controlled pedestrian crossing. As she walked across lane 3, she looked to her right to check that lane 4 was clear of traffic.  It is unclear to me to what degree she was in fact able to see down lane 4, given that BW’s vehicle may well have obstructed her view.

42.  I find that, as the claimant reached the dividing line between lanes 3 and 4, she turned her attention to her left and to the traffic that would be proceeding down the opposite side of the roadway. In doing so, she stopped looking to her right to check for traffic in lane 4 and instead, focused on what was happening in the westbound lanes, all of which she had yet to cross. She then took one or two steps into lane 4, colliding with front left-hand corner of the insured vehicle. I find that the insured vehicle did not swerve from being in the centre of lane 4 prior to impact.

43.  I find that the claimant has been negligent in electing to cross a 6 or 7 lane major arterial road in peak hour when there was an available pedestrian crossing just metres away. Having made that election, she then failed to exercise extreme caution in checking for oncoming traffic before stepping out onto what appeared to be an empty traffic lane. The claimant concedes that she has been negligent but disputes the insurer's characterisation of her actions as "extremely reckless”.

44.  I am also satisfied that the insured driver has been negligent in focusing her attention on the garbage truck which was not broken down at all, according to all of the evidence, but rather stationary waiting for the lights to change. She may have observed the claimant behind the garbage truck, looking in the other direction and about to move into her lane had she not been so focused on the truck itself, but it is equally possible that the claimant’s position before stepping out into lane 4 was obscured by BW’s large utility vehicle and that the insured driver’s opportunity to see the claimant was reduced.

45.  Balancing the actions of the claimant and the insured driver, as is required in accordance with Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, it is my view that the claimant has contributed to her accident by 70% and the insured driver by 30%.  While AEM submits that a 50/50 finding would be fair, it is my view that she must bear the larger proportion of blame for this accident given her choice to cross when and where she did and having regard to her failure to check properly for oncoming traffic.

46.  It follows that I find that the claimant has been “mostly at fault for the accident,” as defined in sections 3.11 (2) and 3.28 (2) as being "if the contributory negligence of the person in relation to the motor accident was greater than 61%”.

Costs and Disbursements

47.  The claimant is unrepresented and is not entitled to recover legal costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  • For the purposes of sections 3.11 and 3.28 the motor accident was caused mostly by the fault of the injured person

Margaret Holz
DRS Claims Assessor
Dispute Resolution Services
18 June 2019