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AEO v NRMA Insurance Limited [2019] NSWDRS CA 118

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – negligence – contributory negligence – collision – failed to keep a proper and adequate lookout – fault of the injured person – pedestrian – failure to use a pedestrian crossing – legal costs
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 3.36, 7.36(5), Schedule 1, Schedule 2(3)
Motor Accident Injuries Regulation 2017 Schedule 1 cl 2
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases citedN/A
Text citedN/A
Parties AEO- Claimant
NRMA Insurance Limited - 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 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) of the Act to be a miscellaneous claims assessment matter

Claimant AEO
Insurer NRMA Insurance Limited
Date of Accident 15 June 2018
DRS Reference 10087901
Date of Internal Review  
DRS Claims Assessor Hugh Macken
Date of Decision  
Conference date and time Thursday 6 June 2019 at 2 pm
Conference venue and location Level 21, 1 Oxford Street
Darlinghurst NSW 2010
Attendances for the Claimant Mr Deal-Lloyd Del Monte instructed by
Ms Georgia Potgieter
Attendances for the Insurer Ms Olivia Dinkha instructed by
Ms Amy Corrigan and Ms Vitalina Pleskach

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

For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.

Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST = $1,796.30.

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

Hugh Macken
DRS Claims Assessor
Dispute Resolution Services

Reasons for decision

Issued in accordance with cl 7.36(4) of the Motor Accident Injuries Act 2017

Background

1.  This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) of the Motor Accident Injuries Act 2017, about a dispute between NRMA Insurance and the Claimant, AEO. The dispute is whether, for the purposes of section 3.11, the motor accident concerned was caused by the fault of another person or whether, for the purposes of section 3.28 or 3.36, the motor accident was caused mostly by the fault of the injured person.  Put simply the Insurer has denied any negligence on the part of their insured and, should negligence be found on the part of their insurer, that there ought be  a finding of contributory negligence of more than 61% on the part of the injured Claimant. Such a finding would ensure that the section 3.11 is satisfied in so far as the motor accident was caused mostly by the fault of a person as contributory negligence of the person in relation to the motor accident was greater than 61%.

Documents considered

2.  I have considered the documents provided in the application and the reply.

Submissions

3. The primary submission of the Claimant is that the argument of the Insurer that their Insured Driver had no opportunity to avoid the collision with the Claimant is incorrect.  Put simply, the Claimant was taking reasonable and sufficient care for her safety and that the determination of the Insurer that the driver made no contribution to the accident is wrong. That is the correct construction of the material, and also the relevant case law, supports a finding of negligence on the part of the insured driver.

4. The Insurer submitted the determination made in respect to liability is correct.  That is that the evidence available indicates the accident was caused wholly by the fault of AEO.  The Insurer further submits should a finding of negligence be made against their insured driver AEO is mostly at fault for the subject accident and a finding of contributory negligence ought to be made against her.

Legislation

5. In making my decision I have conducted an Assessment Conference and  I have considered the following legislation and guidelines:

Motor Accident Injuries Act 2017 (“the Act”)

and case law which was referred to by both parties

6.  As noted by both parties, the determination which I make must identify whether or not, should some negligence be found on the part of the driver, the accident was caused mostly by the fault of the Claimant.  At the request of both parties, and noting some possible impact in respect to the assessment of loss of wages which the Claimant may have suffered, I will identify any finding of contributory negligence as a specific percentage.

Reasons

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

8.  The Claimant was on her way to work, a little after 6.00am in the morning, when in attempting to cross Hilltop Road at Merrylands in New South Wales, she was  struck on the front left portion of the insured driver’s utility.

9.  It was common ground that the insured had turned left onto a “slip lane” at Burnett Street and had just entered Hilltop Road when the collision occurred. The insured driver, who was not available to attend the Assessment Conference,  provided a statement to an investigator. The driver stated in answer to a question as to whether or not he had seen her prior to the collision with the vehicle stated “no”. In that statement he confirmed that he did not see the Claimant at all prior to what he described as the Claimant walking into the vehicle towards the front side of the vehicle.

10. That said there was nothing to suggest that the insured driver ever saw the Claimant prior to the accident.

11. It was hypothesized by the Counsel for the Claimant, at the Assessment Conference, that on turning left into Hilltop Street, and noting that he was to merge with a right hand lane from his slip lane, that the insured driver may well have been looking to his right to ensure that the lane in which that he was to enter was clear. This would explain why he would not have seen the Claimant, whom it was conceded would have been in front of him without any vehicle or other object between him and the Claimant commencing to cross the road, prior to the collision.

12. Numerous versions were put to the Claimant to explain how it was that she came to be struck by the car. It was suggested to her, as the insured driver had stated, that she was wearing dark clothing. She denied this. The insured driver said she was wearing dark clothing with a fur trimmed hood. The Claimant denied that the blue coat she was wearing had a fur trim. In fact the Claimant confirmed that the coat she was wearing was “almost sky coloured”. She pointed to grey panelling and said that the colour of the coat was similar to that perhaps a bit darker. She also noted that it had a yellow stripe.

13.  In respect to the conduct of the insured driver what is clear and common ground is that he was turning left and merging with a lane to his right hand side. The Claimant was in front of him and, had he been watching to his front, he would have seen the Claimant commence to enter the street as the area was illuminated by street light and the insured had his headlights on. The insured gives a stated speed of between 10 and 15kms per hour. His capacity to stop his vehicle once he became aware of the Claimant in front of him, was unimpeded. In these circumstances I can find no other alternative other than that the Claimant was not watching to his front as had he been so he would have seen the Claimant. A suggestion that the Claimant waited til the vehicle was in front of her before stepping into the path of its mirror is contradictory to the statement of the Claimant that she did not see the vehicle prior to its being struck. It may be that the Claimant was looking to her left to ensure that Hilltop Road was clear as she was crossing it but there is no material to suggest that the Claimant would have seen the vehicle in front of her and continued to walk into the side of it whilst it was moving. That is that the Claimant intentionally walked into the insured’s vehicle.

14. I have no difficulty in accepting that the insured driver did not keep an appropriate lookout. Had he seen the Claimant he would have been in a position to sound the horn, flash his lights, slow or take evasive action. That he did not do any of these things is reflective of the fact that he was unaware of the presence of the Claimant notwithstanding that had he been attentative to the environs around him, and particularly in front of his motor vehicle, he would have seen her.

15. I have no difficulty in finding negligence on the part of the insured driver. That is he failed to keep a proper or adequate lookout whilst driving.

Contributory negligence

16.  The allegations of contributory negligence, once negligence is found on the part of the driver, include negligence consequent on the Claimant’s attempt to cross a road other than at a zebra crossing or a crossing controlled by traffic control signals as well as failure to keep a proper lookout and thereby taking reasonable steps to ensure her own safety.

17.  Dealing firstly with the failure to use a pedestrian crossing I concur with the Claimant’s submissions in this regard. In addition to taking considerably longer  (a factor albeit not being a highly relevant one) the Claimant would still have had to cross another street to reach her bus stop which was not controlled by traffic control signals. That is, she would have needed to cross Chester Street, for which there is no pedestrian crossing or traffic control signal, to reach her bus stop. I don’t consider her attempt to cross Hilltop Road, particularly noting the early hour and light traffic, to be a relevant factor in making any finding of contributory negligence on the part of the Claimant. If one is attentative and awaits for the roadway to be clear there is no particular danger in crossing Hilltop Street without the benefit of traffic control signals as compared to any danger posed by crossing Chester Street which similarly has no traffic control signals.

18.  That said what is clear, and was conceded by Counsel for the Claimant, is that the Claimant did not keep a proper and adequate lookout when she was attempting to cross Hilltop Street. Had she been looking to her right she would have seen the insured vehicle coming out of Burnett Street and driving toward her. Just as the driver had an unimpeded vision of her so to she would have had an unimpeded vision to the driver. Just as the driver did not see the Claimant prior to the accident the Claimant also did not see the driver prior to the accident. In the police notes the Claimant stated “I started to cross the road and suddenly I felt myself being hit by the car”.

19. The material confirms the Claimant was hit when she was starting to cross the road and fell to the left hand side of the car and struck the left hand wing mirror of the car and damaged it. This accords with the injuries being to the right hand side of the Claimant’s body. The Claimant states that she was struck by the front of the car but in any event if she was struck by the front of the car it was on the left front edge of the vehicle and not simply the mirror as the insurer hypothesizes.

20. Neither the Claimant nor the insured driver, who were the only two people present at the time of the collision, were able to throw much light on the point of impact other than for the Claimant to state that she recalls being struck by the front and for the insured driver to hypothesize that she must have struck only the left wing mirror.

21. In the overall scheme of things it does not particularly matter. The Claimant wasn’t watching where she was going whilst crossing the street, thereby not seeing the vehicle approaching her. The insured driver was not watching into the front of his car where the Claimant was commencing to cross the street thereby not being the Claimant prior to the point of impact.

22. The insured driver was not watching attentatively as he ought as what was in front of him. Accordingly, I have no difficulty in finding negligence on the part of the insured driver. The Claimant was not watching as attentatively as she ought when she was attempting to cross Hilltop Street. Accordingly, I find the allegation of contributory negligence made out.

23.  In circumstances where neither the Claimant nor the insured driver were watching where they were going I find that they were both equally responsible for the collision which subsequently occurred. In these circumstances I assess the contributory negligence at 50%.

Costs and disbursements

24.  The claimant submitted that costs ought to be allowed in respect to a claim for weekly entitlements (Regs. Sch 1, 2 (d)), Claimant entitlement for treatment expenses (Reg. Sch 1, 2 (e)) as well Cost penalty (Regs. Sch 1, 2 (g1)).

25.  This submission seeks to claim costs for matters which are in dispute but only as a consequence of a denial of liability. It is the denial of liability by the insurer that gives rise to the consequences of no further weekly payments or treatment expenses. This is not, in my view, the dispute but rather a consequence of the dispute.

26.  As the Insurer points out the Motor Accident Injuries Act 2017, Clause 3.1 of Schedule 1 provides “The maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim)”.

27.  I concur with the Insurer’s submission that the matter which was before me was a dispute in respect to liability. That is, a dispute as to whether or not the Claimant was mostly at fault for the injuries she sustained in the motor accident. Whilst the Claimant submitted that the decision may lead to a positive finding on both the entitlement of treatment and entitlement to weekly payments the situation is not one in which, given the finding that I have made, the Claimant’s specific entitlements will need any further material to compel the Insurer to make the payment. That is, by resolving the single dispute which was before me, the issues relating to treatment and weekly payment is also resolved.

28.  In respect to the claim for a cost penalty the Claimant seems to be submitting that the Insurer’s denial of liability was based on a misrepresentation. Given that the material produced from the police did indicate that the Claimant was crossing between two parked cars, thereby impeding the view the insured driver ought to have had before the collision, I am not satisfied that there ought to be an imposition of a cost penalty against the Insurer.

29.  Accordingly, I assess costs in accordance with the schedule in the sum of $1,633.00 plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

30.  For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.

31.  Legal Costs:  The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus GST.

Hugh Macken
DRS Claims Assessor
Dispute Resolution Services