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AGL v AAMI Insurance [2019] NSWDRS CA 169

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction Miscellaneous Claims Assessment
Catchwords Statutory benefits – wholly or mostly at fault – bicycle rider – give way sign – reasonable foreseeability – significant head injury – legal costs
Legislation cited

Motor Accident Injuries Act 2017 (NSW) ss 3.28, 7.36(4), Schedule 2 clause 2(3)
Motor Accident Injuries Amendment Regulation 2017
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.445
Road Rules 2014 (NSW) rule 11(1), 14, 15, 17(1)
Evidence Act 1995 (NSW) s 144
Civil Liability Act 2002 (NSW) s 5B(1)(c)

Cases cited

Gard v Allianz Australia Insurance Ltd [2019] NSWDC 254
Shoalhaven City Council v Pender [2013] NSWCA 210
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268

Text cited

Publication of Transport NSW – Centre for Road Safety titled “Safer Stopping”

Parties AFB – Claimant
QBE Insurance (Australia) 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)(g) of the Motor Accident Injuries Act 2017 (the “Act”), about the insurer’s decision to cease the claimant’s entitlement to further statutory benefits by determining that the claimant was wholly or mostly at fault for the motor accident.

1.   The insurer asserts that the claimant, the rider of a bicycle failed to heed the direction of a “Give Way” sign and thereby collided with the vehicle driven by the insured person, such collision occurring because the claimant was either wholly or mostly at fault for the motor vehicle accident.

2.   It is submitted on behalf of the claimant that the insured driver had ample opportunity to sight the claimant before the collision and that a reasonably alert driver should have been able to perceive the bicycle in sufficient time for the driver to bring his vehicle to a stop prior to the point of impact, or otherwise take evasive action. .

3.   An internal review was conducted on 4 April 2019 and it is against that decision that this application is brought

Documents considered

4.   I have considered the documents provided in the application and the reply and any further information provided by the parties.as follows:

a.   Statement of the insured’s driver dated 12 July 2019 served 16 July 2019.

b.   Claimant’s further submissions dated and served 9 August 2019 with attached photographs of scene together with first and only statement of the claimant dated 6 August 2019.

c.   MJM Factual Investigation Report dated 15 July 2019 served 16 August 2019 including police interview and a series of further photographs.

Submissions

5.   The claimant submissions in summary are as detailed in [2] above.

6.   The insured driver submits as in [1] above.

Legislation

7.   In making my decision/conducting my review I have considered the following legislation, guidelines and other publicly available evidentiary material.

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017
  • Road Rules 2014 (NSW)
  • Evidence Act 1995 (NSW)
  • Publication of Transport NSW – Centre for Road Safety titled “Safer Stopping”

Reasons

8.   The relevant motor accident occurred on Sunday 14 October 2018 at about 12 noon. The weather was fine, the road dry when the claimant’s bicycle collided with the driver’s sedan at the intersection of Mitchell Road and Phillip Street, Glebe NSW.

9.   It is important to place the parties into the geographic context of the collision.

10.  The claimant a male person aged 77 at the time of the accident, resided in Phillip Street at Glebe, an estimated 70-80 metres north of the intersection, the site of the accident. Phillip Street runs downhill to Mitchell Road. The claimant was riding his bicycle in a general southerly direction so as to go to the Broadway Shopping Centre. In his statement the claimant said that he frequently rode to this shopping venue about six times per week

11.  The driver resided on Wentworth Park Road, near to the intersection with Mitchell Road. In his statement he said he and his wife had left their home and were driving in a generally westerly direction in Mitchell Road heading to a birthday celebration in Bankstown. The driver was familiar with the road and the road surrounds ( see [32]-[37] of his statement. The claimant described the roadway as having “two lanes, one each side, with enough space for parking on each side.” The driver was driving a Toyota Corolla hatchback registered number XX XX XX.

12.  It is not disputed that there are two “Give Way” signs on each side of the intersection governing traffic heading either north or south on Phillip Street. At [2] the claimant said that he did “not remember the accident on 14 October 2018.” At [7] of his statement the claimant says “I always slow down at give way signs when riding my bicycle and make sure that it is safe to cross before continuing.”

13.  The driver described the accident to the police who arrived at the scene of the accident as follows, “We were driving on Mitchell Street and then my wife started screaming. She seemed shocked. The next thing I heard was a bang, and I saw the man against my window. The man came out of nowhere.” A similar version is described at [62]- [67] of the driver’s statement of 12 July 2019. In this statement he did not mention his wife screaming but at [62] says “At this time, in the corner of my eye, I saw a look of shock on my wife’s face towards my direction.” And at [63] – “I immediately looked towards my right I heard a bang and saw an older man’s face on the driver side window.” For reasons set out below I do not place much significance in the variances in the driver’s statements.

14.  The police attended at the scene of the accident about 5 minutes after notice was broadcasted. In her statement Constable Vaccaro identified that the cyclist as coming “Down Phillip Street” In answer to Q47 the constable said that when she arrived the driver’s vehicle was on the “left side of the road.” This accords with photo “B” bottom right described in the claimant’s submissions of 9.8.2019 at [4]. I infer that at the time of the collision the driver’s vehicle was on its half of the roadway, noting that there were no line markings. The claimant told the police and confirmed in his statement that he was driving at 40km per hour.

15.  The police records do not specifically identify a point of impact between the bicycle and the car. It is clear however that the bicycle came into an initial collision near to  the driver’s door side mirror and then damage was observed extending across the front door onto the rear door. Photo “B” upper right depicts were the vehicle came to  a stop and also where the claimant was laying, and being treated by attending ambulance officers. Given the forward motion of the car I infer that the bicycle initially collided with the car approximately in the middle of the intersection that is near to the centre point of the extension of Phillip Street. The claimant’s bicycle had traversed across half of Mitchell Road before colliding with the car.

16.  Annexure 5 to the MJM report is a measured diagram of the intersection. For the purposes of these reasons I have adopted the northern cardinal direction shown in this diagram. Phillip Street is 8 metres wide and Mitchell Road is 9 metres wide. I therefore place the point of initial impact at 4 metres from the easterly extension of Phillip Street and 4.5 metres from the northern extension of Mitchell Road.

17.  As previously alluded to, it was submitted on behalf of the claimant that the driver had “ample opportunity to sight the claimant crossing Mitchell Street..”

18.  At this point it is of utility to have regard to the prevailing rules of the road. Certain sections of the Road Rules 2014 NSW are apposite. Rule 14 includes a “rider” as a road user. Rule 15 states that a vehicle includes “a bicycle.” Rule 11(1) notes that “These Rules apply to vehicles and road users in road related areas.” Rule 17(1) notes that a “rider is a person who is riding….a bicycle…” Finally in the Dictionary to the Road Rules “Give Way” is defined as…”give way for a driver or pedestrian means:…(b) in any other case-slow down and, if necessary, stop to avoid a collision.” It is to be noted that this is what the claimant said was his practise.

19.  The compulsion to erect “Give Way” signs on Phillip Street are evidenced by photos “D” and the final photo appearing after D depicting the arrowed path of travel of the claimant’s vehicle(referred to as E). A correlation of this photo E with the Google Earth aerial of the scene at page 4 of the MJM report, would place the position where the final photo E was taken as being adjacent to house no. 40 on the southern side of Mitchell Street. Again estimating the width of the houses on both southern sides of Mitchell Street from photo “D” it could be concluded that each house is about 4.5 metres wide. It should also be noted that photo D shows on the north eastern corner  a high but descending wall is a barrier to both the claimant and the driver seeing each other

20.  As the driver approaches the intersection his driver’s side view is from near to the middle of the road. Any view of Phillip Street is impeded by both the wall as noted in [19] above and the very large tree shown on the north eastern corner in photo E. Given that the bicycle would not be observable until it emerged from both behind the large wall and the tree referred to in photo E if the driver was three houses back from the commencement of the intersection, say 13 metres, then add 4 metres until he is in the middle of the intersection at the putative point of impact the driver has traversed that 17 metres at 40kmh in 1.5 seconds.

21.  From the photo of the claimant’s damaged bike attached to the claimant’s recent submission it can be noted that the front wheel is not damaged. From that I infer that the claimant has had time to turn his wheel o try and avoid collision. If the claimant had slowed to walking pace of 7kmh he covers the 4.5 metres to the point of collision in 2.3 seconds – to swerve away or even stop. At 10kmh the claimant would have had 1.6 seconds to respond.

22.  If a car travels at 40km per hour simple maths brings that down to just over 1l metres per second. As a matter of general community knowledge in accordance with s144 of the Evidence Act 1995 a person walking briskly walks at about 7 km per hour.

23.  What about the driver. Transport NSW- Centre for Road Safety has published studies on stopping time. A vehicle travelling at 40km per hour and applying immediate breaking takes 26 metres to come to a stop.

24.  I conclude that once the bicycle passed the wall and large tree on the north eastern corner of the intersection, first coming into the vision of the claimant doing more than 10kmh the collision was inevitable. There was certainly not ample time for the driver to respond. There was none or very little time for him to respond.

25.  The words of Weber J in Gard v Allianz Australia Insurance Ltd [2019] NSWDC 254 are apposite.

Whether a reasonable person would have taken precautions

116.   Section 5B(1)(c) invokes the notion of foreseeability as relevant to breach of duty of care. However, as discussed, reasonable foreseeability of the class of injury that the plaintiff suffered is also an essential condition to the existence of the duty to take care for the benefit of another.

117.   The nature of the foreseeability inquiry differs depending upon the stage at which it is being considered: Shoalhaven City Council v Pender [2013] NSWCA 210, at [58] per McColl JA (Barrett JA agreeing).

118.   The inquiry at the duty of care stage, addresses the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered "quite generally" (Shirt v Wyong Shire Council [1978] 1 NSWLR 631, at 639 – 640, per Glass JA).

119.   The inquiry as to foreseeability at the breach stage, "involves identifying, with some precision, what a reasonable person in the position of the Defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540, at [192] per Gummow and Hayne JJ; see also Vairy, at [70] - [73] per Gummow J; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268, at 295 per Glass JA.

26.  The accident, in my view occurred wholly by reason of the fault of the claimant.

Costs and disbursements

27.  The Claimant submits that costs should be awarded even in the event of the claimant being unsuccessful. In my view the level of the insurer’s investigation, relying only on a second hand abbreviated telephone conversation to cease statutory benefits was inappropriate. Also in the context of the claimant suffering a significant head injury impairing his memory the claimant had little choice but to challenge the insurer’s determination of 3 April 2019.

28.  The Insurer’s covering submission of 16 August 2019 did not make any costs submission.

29.  In the exercise of my discretion I am satisfied that the Claimant is entitled to the payment of legal costs and accordingly I allow costs in the sum of $1,826.00 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

30.  For the purposes of section 3.28 the insurer was entitled to cease payment of statutory benefits of payable in respect of the motor accident.

31.  Effective Date:9 April 2019.

32.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826.00 inclusive of GST.

Richard F Buckley
DRS Claims Assessor
Dispute Resolution Service
Dated: 27 August 2019