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AGX v Allianz Australia Insurance Limited [2019] NSWDRS CA 182

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsContributory negligence – motor scooter – parked cars – open door – failure to wear adequate clothing – failure to keep safe distance from parked cars – buffer zone – legal costs – contribution by claimant 20%
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.38, 7.36(4), Schedule 2(3)(g)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 7.438
Cases citedTrentleman v Roberts & Anor [2004] ACTSC 39
Text cited“Motorcycle Riders Handbook” Roads & Maritime Department
Parties AGX – 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)(g)of the Motor Accident Injuries Act 2017, about reduction of benefits for contributory negligence.

1.   There is a dispute between AGX (the Claimant) and the Insurer in respect of allegation made by the Insurer that the Claimant contributed to his injuries as a result of contributory negligence in accordance with section 3.38 of the Motor Accidents Injuries Act 2017 (“the Act”).

2.   On the 8th of February 2019 the Claimant was riding his motor scooter along Old South Head Road, Rose Bay when the Insured driver who was parked by the side of the road opened her car door causing the Claimant’s scooter to strike the door, lose control and crash causing injury.

3.   The Insurer admitted primary liability but alleged contributory negligence of 20% on 16 May 2019.

4.   The Internal Review conducted on 13 June 2019 affirmed the original decision and added additional reasons for the Insurer’s decision.

Documents considered

5.   I have considered the documents provided in the application and the reply and any further information provided by the parties. I have also considered additional caselaw as referred to in these reasons and the RMS handbook for motorcyclists.

Legislation

1.   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

Submissions

6.   Apart from the issue of failure to wear adequate clothing, which I will deal with later, the primary basis for the Insurer’s decision is the allegation that the Claimant failed to keep a safe distance from parked cars to avoid the potential for an accident such as this to occur. It is said by the Insurer that the undisputed evidence is that at the point of the road where the accident occurred the width of the lane for southwest bound traffic was 6.1m. It is said that the Insured vehicle is 1.82m wide and the handlebars of the Claimant’s scooter are .745 wide thus leading to the inference that there was an additional 2.465m available for passing the vehicle safely and even taking into account the space between the passenger’s side wheels of the parked vehicle and the gutter and also an additional allowance for the opening of the door by the Insured driver there would have been ample room to pass safely.

7.   The Claimant submits that the driver had her door fully open and this is consistent with the damage to the door in that the door hinges were bent, and that the sudden nature of the driver’s action in opening her door gave little chance to the Claimant to take evasive action.

8.   The Claimant’s primary injury was that of a left knee injury affecting the internal mechanism of that knee and says that the fact that the Claimant was wearing shorts did not affect this injury which would have occurred even if he were wearing trousers or long pants.

The evidence

9.   There is no dispute as to the date, time and place of the motor accident. There is also no dispute that the accident occurred in circumstances whereby the Claimant was riding his motorscooter in a generally southwesterly direction along Old South Head Road 20m north of the intersection with Strickland Street when the handlebars of his scooter struck a car door which had been opened moments before the Claimant had reached the Insured driver’s car. The Insured driver in her statement to an investigator given on 17 March 2019 says that she had, shortly before the accident, parked her vehicle in Old South Head Road facing the same direction as the Claimant was travelling and had opened her driver’s door only some 6 inches when the handlebars of the motorscooter struck the open door. The Insured driver says it is her usual practice to look to see if the road was clear before opening her door, but is not sure if she did so on this occasion. I pause here to observe that there appears to be no reason as to why the driver could not have seen the moving motorcycle, the roadway being generally in a straightline in the immediate vicinity of where the accident occurred.

10.   The Claimant says that the roadway where the accident occurred is wide enough for parked cars and 1 lane of traffic in each direction and this accords with measurements taken by an investigator who records that at the point where the accident occurred the distance between the gutter and the centreline of the roadway is 6.1m.

11.   As indicated above the width of the motor car is 1.82 and the width of the scooter’s handlebars is .745m giving an additional 3.535m of space to allow for distance between the kerb and the car as parked, although the driver says she parked close to the kerb; and for the scooter to pass the parked cars. I note the Claimant says the Insured driver had parked her car apparently at the front of a line of other parked cars. The Claimant had not seen the car before it was parked and assumed it was just one of a number of parked cars on his side of the road.

12.   The Claimant says he was no more than 2-3m from the car when the door suddenly opened and the handlebars of the scooter struck the opened door. Although he attempted to swerve he was too close to the door as it was opened and struck it. He says his body went over the bike and he landed in the middle of the road.

13.   There is no dispute that the driver caused the accident by failing to observe the presence of the Claimant on the road before attempting to open her door and the issue is whether the Claimant contributed to the accident as a result of his own negligence and if so the extent of any such contributory negligence. The allegations of contributory negligence are:

i.   That he drove too close to the parked cars even though he had ample room to allow for drivers or passengers of the parked cars to open their doors.

ii.   That he failed to take appropriate care for his safety by not wearing protective clothing and in particular wearing shorts.

Determination

14.   Dealing with the second allegation of contributory negligence I consider I have insufficient evidence expert or otherwise to find the Claimant’s clothing contributed to his injuries.

Furthermore the Claimant says he was wearing protective clothing and was wearing pants not shorts as alleged by the Insurer. As neither party wished to embark on a face to face assessment of this dispute I am not in a position to make any credit findings as to the evidence of the two witnesses and conclude I cannot be satisfied that the Insurer has made out this allegation.

15.   As to the Insurer’s allegation of failure to leave an appropriate distance between his scooter and the parked car there appears to be some merit in the allegation having regard to the measurements of the width of the roadway which is unchallenged.

16.   The driver says she had only opened her door about 6 inches whereas the Claimant says it was opened much wider than this. Although there is a dispute as to this evidence it really is not of any great significance because the available width of the roadway would allow for the scooter to pass the car and remain comfortably on the correct side of the road on either scenario.

17.   I have been referred to a number of decisions of various courts where contributory negligence has been applied to motorcyclists involving opened doors. I have also read a decision of the ACT Supreme Court in Trentleman v Roberts & Anor [2004] ACTSC 39 concerning the actions of a bicycle rider. Ultimately however each case must be decided on their unique factual circumstances.

18.   The issue is whether it was negligent of the Claimant to travel in close proximity to the Insured vehicle when he ought to have known there was the potential for an occupant to open their door into the path of the Claimant’s scooter. I have ultimately determined the Claimant did contribute to his injuries for the following reasons:

i.   The width of the roadway available for travel by the Claimant permitted the Claimant to maintain a buffer zone between his scooter and the parked cars such that he could have avoided the accident by adopting a more cautious path of travel.

ii.   The Roads and Maritime department for NSW issued a publication referred to as the “Motorcycle Riders Handbook” for all prospective motorcyclists who wish to become licenced in NSW. One of the sections of that handbook refers to safe riding and the importance of vehicle positioning which at p42 sets out diagrams indicating the allowance of buffers between cyclists and parked vehicles.

iii.   The Claimant himself in his statement to the Investigator indicates he has been riding motorcycles for over 4 years, was familiar with the area and road, that there was one lane for travelling vehicles and a parking lane,was travelling at about 30-35kmh,and said;

I always keep my distance from parked cars as I know many people open doors without looking.

Accordingly he was aware of the possibility and had room on the roadway to allow for it.

19.   Having found that the Claimant did contribute to his injuries I am now required to assess the extent of that contribution.

20.   Clearly the contribution of the Insured driver to the accident is of a high order. Put simply the primary cause of the accident was the driver’s action in opening her door when it was unsafe to do so had she kept a proper look out for the presence of the Claimant’s scooter which was there to be seen. This is reflected in the Insurer’s approach to the assessment of the Claimant’s contribution.

21.   But is the Claimant’s contribution to the extent of 20%? I think it is for the following reasons:

i.   Motorists, including this Claimant are aware that occupants of vehicles do occasionally suddenly open doors of recently parked vehicles without regard to the proximity of passing vehicles and indeed cyclists. This maybe due to inadvertence but every motorist and road users generally are alive to the prospect of it occurring. The Claimant was clearly aware of the possibility as he says so in his statement.

ii.   Having been aware of the possible occurrence of a car door suddenly opening without warning the Claimant ought to have allowed a suitable buffer between his scooter and the parked vehicle as recommended in the RMS handbook earlier referred to. Clearly he had room to do so but it appears he did not.

iii.   I am accordingly satisfied the Claimant’s contribution was significant and agree with the Insurer’s assessment of it.

Costs and disbursements

22.  Although the Claimant has been unsuccessful in respect of this application it was one which was not an easy decision and I consider the Claimant was entitled to ventilate the issues raised noting the apparent significant injuries suffered by the Claimant as a result of the accident.

23.  I am satisfied that the Claimant is entitled to the payment of legal costs and I allow costs in the sum of $1,660.00 plus GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

24.  For the purposes of section 3.38 the Claimant contributed to his injuries as a result of his contributory negligence assessed at 20%.

25.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,660.00 plus GST.

Colin Stoten
DRS Claims Assessor
Dispute Resolution Services