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AEW v NRMA Insurance Limited [2019] NSWDRS CA 126

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsStatutory benefits – motor accident – contributory negligence – struck by unidentified vehicle – incorrect side of roadway – U-turn – pedestrian – police – CCTV footage – legal costs
Legislation citedCivil Liability Act 2002 (NSW) s 5R
Motor Accident Injuries Act 2017 (NSW) ss 3.38, 7.36, Schedule 2
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018
Cases cited Hargrave v Sing (2019) ACT SC 139
Text cited N/A
Parties AEW– Claimant
NRMA Insurance Limited – Insurer 
Disclaimer This 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

ClaimantAEW
InsurerNRMA Insurance Limited
ApplicantAEW
Date of Accident3 November 2018
DRS Reference10100406
Insurer Claim NumberNWRND180019901
DRS Claims AssessorDavid R Ford
Date of Decision9 July 2019
Conference date and timeAssessed on the papers

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

  1. For the purposes of section 3.38 the Insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by nil percent (0%).
  2. Effective date of this determination takes effect on 9 July 2019.
    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.

David R Ford
DRS Claims Assessor
Dispute Resolution Services

Reasons for the decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 201

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 claim for entitlements to statutory benefits comprising weekly benefits should be reduced after 26 weeks because of the Claimant’s contributory negligence.

1. The facts of this accident are that on 3 November 2018, an unidentified motor vehicle was driving down XXXX Avenue, Bomaderry, at a fast speed. The Claimant resides at XX XXXX Avenue, Bomaberry.

2. The said unidentified vehicle performed a U-turn and drove back along XXXX Avenue towards the Claimant who had stepped out onto the roadway (the Claimant states in his Application for Personal Injuries Benefits he stepped out “a bit”) to gesture to the driver of the unidentified vehicle to slow down.

3. It is further submitted the unidentified vehicle crossed over onto the incorrect side of the roadway and deliberately collided with the Claimant, causing him to sustain serious injuries.

4. The motor vehicle in question remains unidentified.

5. The Insurer has accepted liability, however, have alleged 50% reduction for contributory negligence.

6. The Insurer has alleged contributory negligence on the following grounds:-

a. Has failed to take reasonable precautions and/or responsibility for his own life and safety by failing to stay off the road despite flagging the unidentified driver to slow down when it was unsafe to do so.

b. Not keeping a proper lookout for the oncoming vehicle by placing himself in the path of the vehicle that performed a U-turn in low lighting.

7. The Claimant seeks to challenge the determination and submits contributory negligence on behalf of the Claimant is nil.

Documents considered

8. I have considered the documents provided in the Application and the Reply.

9. I also received further documentation from the parties as follows:-

a. The solicitor for the Claimant served a copy of a decision of Hargrave v Sing (2019) ACT SC 139.

b. The Insurer sent to me and the solicitor for the Claimant an email dated 27 June 2019, in which inter-alia, stated as follows:-

“As there is no evidence of the level of AEW’s intoxication, the Insurer will not pursue this allegation.”

c. The solicitors for the Claimant, sent to me and the Insurer, a letter dated 27 June 2019.

Insurer's submissions

10. The Insurer has served detailed submissions (document R1) dated 11 June 2019.

11. Essentially, the Insurer submits the Claimant was guilty of contributory negligence, submitted at 50%, for the following reasons:-

“20. It is noted that the Ambulance records dated 03 November 2018 confirmed that AEW was ‘laying in middle of road’. Additionally, after reviewing the CCTV footage taken from XX XXXX Avenue, Constable Killeen concluded that AEW was closer to the centre marking of the road. Based on the available information, the insurer submits that AEW was closer to the middle of the road when the vehicle at fault swerved to the right and hit him.

21. We note the AEW chose to step onto the road while he knew that the at fault vehicle was travelling along XXXX Avenue at an excessive speed. While AEW intended to flag the driver of the at fault vehicle to slow down, a reasonable person would have stayed on the footpath away from the speeding vehicle. It is submitted that AEW placed himself in a dangerous situation by choosing to step onto the middle of the road.

22. The insurer submits that AEW would avoid the collision and his injuries, if he did not step out onto the middle of the road. The insurer submits that AEW significantly contributed to the occurrence of the accident, in that, he failed to take reasonable precautions for his own safety by stepping out onto the road to flag the driver of the at fault vehicle to slow down when it was unsafe to do so.

23. It is submitted that AEW clearly saw the at fault vehicle and placed himself in a position which was hazardous where his safety depended on the driver keeping proper lookout and staying within his/her lane.”

12. The Insurer refers to the record of interview, between an investigator, Mr Frank Weir and Senior Constable Timothy Killeen. In paragraph 18 of the submissions, I note the following:-

“Q47. So, what do you think your circumstances of the accident – what do you think has happened there?

A47. After viewing the footage and going through the statement provided by AEW, I believe he may’ve gone further than two steps onto the road. I feel that he may’ve been closer to the -the centre marking of the road. But, in saying that, I also believe that the vehicle may’ve possibly swerved towards him.”

13. Mr Weir viewed the CCTV footage at Shoalhaven Police Station on 13 February 2019 and it is submitted Mr Weir confirmed the following:-

“We can confirm it was impossible to identify the vehicle at fault. It was darkness at the time of the incident and all that was visible on the CCTV was the vehicle lights. There is no vision of the claimant being struck by the vehicle.”

Claimants's submissions

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

“i. It is submitted the statements made by Constable Killeen are no more than mere speculation. The fact AEW was laying in the middle of the road as referred to in the ambulance records is not evidence of the fact that where he was standing when he was struck by the vehicle. If anything, it provides evidence as to the position on the road where AEW ended up after being struck by the vehicle.

ii. AEW in his statutory declaration dated 22 March 2019 states the unidentified vehicle ‘swerved and crossed over onto the opposite/incorrect side of the road and hit me at full speed.’ It is submitted AEW has clearly stated the point of impact was well onto his side of the roadway. I note in the Application for Personal Injuries Benefits dated 7 November 2018, AEW states as follows:-

“I was out front a car came flying down road at a very fast speed it turned around and headed back up the road still at speed. I stepped out a bit on to road to tell them to slow down they have swerved and hit me and I don’t remember anything after that.”

15. It is further submitted by the solicitors for the Claimant:-

“As the car did not stop it would follow that upon being projected up onto the car, AEW would have been ‘carried’ for some unspecified relatively short distance before falling from the car and landing on the road somewhere close to the middle of the road.”

I find this submission by the solicitor for the Claimant has some merit.

16. I further agree with the submission that Constable Killeen when he states the Claimant may have gone further than two steps onto the roadway and he may have been closer to the centre marking of the road, is no more than pure speculation on his part.

17. Furthermore, it is clearly stated by the investigator, Mr Frank Weir, the CCTV footage shows “no vision of the claimant being struck by the vehicle.” Mr Weir did not put to the Constable, when questioning him, the fact the vehicle did not stop and may have propelled the Claimant some distance towards the middle of the road. It appears once Mr Weir had recorded the answer to question 47 by Constable Killeen, he chose not to ask any further questions which may have shed some light as to why Constable Killeen was speculating the Claimant was standing closer to the middle of the road when struck by the unidentified vehicle.

18. I accept the submission made by the solicitor for the Claimant that the Claimant was not crossing the road in front of the unidentified vehicle, and at all times remained on his side of the roadway.

Legislation

19. 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)

Reasons

20. The onus on proving contributory negligence rests upon the Insurer.

21. In deciding whether 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.

22. I note the submissions made by the solicitors for the Claimant at paragraphs 15 and 16 with regard to Section 5R of the Civil Liability Act.

23. As stated above, the investigator, Mr Frank Weir, once he had obtained the answer to question 47 from Constable Killeen, did not ask any further questions, which may have provided a better insight as to why Constable Killeen stated he believed the Claimant may have been closer to the centre marking of the roadway. In view of the fact the CCTV footage, as recorded by Mr Weir, does not provided vision of the Claimant being struck by the vehicle, it would have been prudent to ask Constable Killeen why he was speculating to the degree that he did ‘after viewing the CCTV footage’. Furthermore, Constable Killeen says that after reading the statement provided by the Claimant, this led him to speculate the Claimant may have been closer to the centre marking of the roadway. It would also have been prudent of Mr Weir to ask Constable Killeen what particular facts as stated by the Claimant in his statement led Constable Killeen to speculate the Claimant was standing closer to the centre marking of the road.

24. In my view, these propositions should have been put to Constable Killeen and accordingly, I agree with the submission made by the solicitor for the Claimant the statements made by Constable Killeen, in answer to question 47, remain as pure speculation, and I have no assistance to me in determining whether or not the Claimant was standing near the middle of the road at the time he was struck by the unidentified vehicle. In such circumstances, I accept the Claimant’s version that he had stepped onto the road ‘a bit’ as recorded in his Application for Personal Injuries Benefits dated 7 November 2018.

25. I therefore the percentage of contributory negligence on behalf of the Claimant is nil.

Findings

26. I find for the purposes of section 3.38 the Insurer is entitled to reduce the statutory benefits payable in respect of the motor vehicle accident by nil percent (0%).

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 sections 3.38 the Insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by nil percent (0%).

30. Effective Date: This determination takes effect on 9 July 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