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AFP v GIO General Limited [2019] NSWDRS CA 142

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
CatchwordsStatutory benefits – wholly or mostly at fault – collision – pedestrian – struck by bus – falling road sign – State Transit Authority – CCTV footage – negligence – legal costs
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss  3.11, 3.28, 3.36, 7.36(4), 7.36(5), Schedule 1 part 1 section 3, Schedule 2(3)(d) & (e)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 7.441
Cases cited N/A
Text cited N/A
Parties AAT – Claimant
Allianz Australia 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

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 the Claimant was wholly or mostly at fault for the accident.

1.   There is a dispute between AFP, the Claimant, and GIO General Limited, the Insurer, as to whether the Claimant was wholly or mostly at fault for the subject accident.

2.   The Claimant was walking along Carrington Street in Sydney, near bus stops, when he walked around a road sign and then was struck by a bus which was being driven close to the kerb. The Claimant was knocked to the pavement and sustained injuries.

3.   The Insurer initially also disputed whether the Claimant's injuries  were more than minor, however I have been advised that when it conducted its internal review, the Insurer conceded the Claimant's injuries are more than minor.

4.   The Insurer disputed liability by a notice dated 2 January 2019 and the Claimant then made a Review Application on 1 February 2019. That was considered by the Insurer and an internal review decision issued on 27 February 2019 maintaining the original decision, that the Applicant was considered to be wholly or mostly at fault for the accident.

5.   This application was then filed with the Dispute Resolution Service on 25 March 2019. The Insurer lodged is reply on 18 April 2019 and then, for reasons which the parties could not advise me, the matter was not allocated to me until 11  June 2019 for determination.

6.   I held a first teleconference with the parties' representatives on 25 June 2019. The Claimant indicated that he was ready to proceed and sought that the matter be determined, particularly given the time since his statutory benefits had ceased, then some five months.

7.   The Insurer, however, sought the opportunity to put on a statement from the bus driver involved in the accident. I indicated that I would allow the Insurer that opportunity given that it was indicated that could be obtained within three weeks.

8.   I made a direction for that statement to be provided to the Claimant and to me by 16 July 2019 and deferred the matter to a further teleconference on 31 July 2019, to allow the Claimant an opportunity to consider the statement.

9.   When I telephoned the Insurer's office for the teleconference on 31 July 2019, I was unable to contact the Insurer's representative who had previously conducted the teleconference and also the Claims Advisor. Another officer from the Insurer conducted the teleconference and indicated that a factual report and statement of the driver had just been obtained and sought a deferment of the matter so that these could be provided.

10.   The Claimant's solicitor objected to that course noting that it was then over six months since statutory benefits had ceased and the Claimant was anxious that the matter be determined.

11.  I noted that the Insurer had not sought any extension of time for the supply of the driver's statement, nor had it previously  sought a direction for the supply of a factual report. Given the Claimant's objection and the length of time since the internal review decision, I felt it appropriate that the matter proceed to determination. I note the Insurer has had the opportunity to obtain a statement from the bus driver since the Claimant's claim was first made in June 2018, now over twelve months. It has also had the opportunity to obtain that statement since this application was filed on 25 March 2019. To further delay the determination of this matter would not be appropriate in those circumstances.

Documents considered

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

13.   I have also considered the CCTV footage taken from the cameras fitted to the bus involved in the accident.

Submissions

14.   The Claimant submits that he was neither wholly nor mostly at fault for the accident. He says it is clear from the CCTV film that the bus driver was not looking at him and had enough notice to brake or otherwise avoid hitting him. He says the bus was travelling very close to the kerb and that he was struck near the front of the bus rather than at the middle of the bus as had been indicated in the incident report.

15.   The Insurer says that the accident was wholly or mostly the fault of the Claimant. It says that it is clear from the CCTV film that the Claimant stepped onto the roadway in front of the bus without looking and that accordingly the bus driver had no time to avoid the collision nor take evasive action.

Legislation

16.   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

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

18.   The Claimant provided a written statement as to the circumstances of the accident, which he attached to his application, and which is dated 25 March 2019.

19.   In that statement, he says that he was walking along the footpath on Carrington Street near Wynward Park to catch a bus to the Northern Beaches. He says there was a lot of noise with screaming in the park and the footpath was  blocked by people watching what was  happening.  He said it was a busy time for bus passengers

20.   He says that whilst walking on the footpath between bus stops C and D, there was a work road sign and he stepped off the footpath momentarily into the gutter of the roadway in order to avoid the sign. He says he took only two steps within six inches of the footpath and whilst in the process of stepping back onto the footpath he was struck on the right arm and leg by a bus, causing him to fall over onto the footpath.

21.   He says the bus driver did not initially stop but said he kept driving, pulling away from the kerb and then parked further away.

22.   The Claimant says the bus driver should have seen him and braked or blown  his horn. He said that not only was he injured by the force of the collision but also by falling and the road sign falling onto him.

23.  He said the bus driver did not seem concerned about him but started telling him off for being on the road. He says he waited for an ambulance which had apparently been called, but as the ambulance did not arrive he left and later  saw his GP.

24.   The Claimant also relied on a statement from a witness, Ms L who was apparently visiting Sydney from Western Australia.

25.   Ms L says she was standing at the bus stop and noticed the Claimant walking along the edge of the footpath heading towards bus stop 8. She said she saw him hit on the right shoulder and arm by a bus approaching  from behind and he then fell over the work sign and saw him land on the  ground.  She said she assisted him to get up and to sit on the bench. She says that the bus did not stop immediately but travelled a small distance before  stopping.  She says she remembers another lady from the State Transit Authority taking information of the accident and the details of both the Claimant and the bus driver.

26.   The State Transit Authority completed an Incident Report which the Claimant has attached to his application. It confirms that the bus driver was Mr R and it describes the accident as occurring as follows:

Left bus stop E driving to bus stop. Heard loud bang. Stopped bus. Pedestrian hit, got out of bus. Pedestrian sitting on seat. Refused ambulance. Claimed I was driving on the footpath".

27.   That was apparently the version provided by Mr R and he indicated that the impact was to the side of the bus between the doors.

28.   The Insurer provided a copy of the Claimant's claim form for personal injury benefits which contained this description of the accident by the Claimant:

"... While I was walking between the bus stop C and D, there was a workman's road sign and I was required to walk along the edge of the footpath. While I was walking along the edge of the footpath, a 8 line bus came very close to the footpath and hit me on my right shoulder and arm causing me to fall down completely on the footpath".

29.   The Insurer issued a liability notice on 2 January 2019. It said that it had considered the CCTV footage of the accident and the Incident Report  that I have referred to. That letter stated, inter alia:

"We believe that you contributed to the accident and/or your  injury because you have stepped from the curb (sic) directly into the path of our insured driver's vehicle, leaving no opportunity for our insured driver to avoid the incident. We also consider that there was ample room for you to take a safer walking route to avoid the worker's sign obstructing your path, which would have prevented the accident from occurring.

As such, we have determined that you were "wholly or mostly at fault" for the accident".

30.   Accordingly, the Insurer indicated that it was denying liability to make statutory benefit payments beyond 30 January 2019.

31.   The Claimant sought a review of that decision, providing the statement from Ms L and the Insurer conducted an internal review. It issued its Certificate of Determination of that internal review on 27 February 2019 and confirmed its previous decision.

32.   In that decision, the Insurer indicated that the CCTV footage showed that the Claimant was walking on the edge of the footpath on Carrington Street with his back towards oncoming buses. It said that the Claimant stepped to his right off the footpath and onto the road without checking for oncoming buses and that there was an impact to the bus at the front passenger door and that the Claimant had stepped onto the road just as the bus passed him.

33.   The Insurer submitted that the bus driver had no time to avoid the collision or take any evasive action, as the Claimant stepped off the footpath as the bus passed him. It submitted that the bus driver had no opportunity to avoid the accident in those circumstances.

34.   I have watched the CCTV footage myself. This is clearly taken from the front area of the bus and the film shows the movements of both the Claimant and Mr R, the driver.

35.   This commences with the bus being stationary in Carrington Street and then shows it commencing to move forward. As it does so, the Claimant  is seen to be walking along the footpath approaching the road work sign. The film then clearly shows the Claimant stepping from the footpath into the gutter just near the kerb and just before the bus passes him. The film clearly shows the several bus stops and a number of passengers waiting at them and pedestrians on the footpath in the area the bus is travelling.

36.   The camera that shows the bus driver, shows that as the bus driver approached the Claimant he was clearly looking to his right rather than ahead or to his left and appeared startled when the collision with the Claimant occurred. He clearly did not see the Claimant. There is no traffic ahead of the bus obscuring the driver's vision and the Claimant is walking alone just prior to the collision and clearly visible to a driver paying proper attention.

37.   It is clear from the film that the bus was travelling very close to the kerb and there was no other traffic which would have precluded the bus driver from travelling further away from the kerb to avoid any potential pedestrians. According to the film, at the time of collision the bus was travelling at approximately 12 to 22 km/h. That is a not insignificant speed given it is a high pedestrian area.

38.   It is clear that the bus driver did not see the Claimant before the collision and indeed was not looking in that direction as he was driving the bus along the street and close to the kerb. It was clearly negligent for the bus driver to do this knowing that there were pedestrians in the vicinity of the bus stops who might be walking close to or enter on the road. The bus driver failed to keep a proper lookout and failed to drive the bus a safe distance from the kerb to avoid any potential collision.

39.   owever I also accept that the Claimant stepped from the kerb without looking to walk around the road sign and that accordingly he was also negligent for failing to keep a proper lookout. Indeed the Clamant concedes that he was contributorily negligent for stepping onto the roadway but that this would not amount to him being wholly nor mostly at fault.

40.   As I have indicated, it is clear the bus driver was travelling close to the kerb, in a high pedestrian area and was not looking ahead or to his left for pedestrians.  He failed to see the Claimant at a time when he might have braked or swerved to avoid a collision. I have noted the Claimant had stepped onto the road very close to the kerb. The driver was driving a very large vehicle with potential to cause serious injury to pedestrians. When considering, as I must, the relative culpabilities of each of the bus driver and the Claimant, the bus driver must take most of the responsibility for causing the accident. He had a clear road without other traffic that he could have travelled down at a safe distance from the kerb to avoid pedestrians near the kerb. He failed to do so.

41.   It follows that the accident was not wholly caused by the Claimant's fault. Section 3.28(2) provides "A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%".  For  the reasons that I have set out above, I find that the contributory negligence of the Claimant was not greater than 61%, so that the motor accident was also not caused mostly by the fault of the Claimant.

Costs and disbursements

42.   Neither party has made any submissions regarding costs. The Claimant is entitled to legal costs for the dispute, pursuant to Schedule 1, Part 1, Section 3 in respect of this miscellaneous claims assessment in an amount of $1,633.00 (as indexed) plus GST.

43.   I am satisfied that the Claimant is entitled to the payment of legal costs. I allow costs in the sum of $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

44.   For the purposes of section 3.11 the motor accident was not caused wholly nor mostly by the fault of the Claimant.

45.   For the purposes of section 3.28 or 3.36 the motor accident was not caused wholly nor mostly by the fault of the Claimant.

46.   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.

Philip Watson
DRS Claims Assessor
Dispute Resolution Service