|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Mostly at fault – exceptional circumstances – legal costs – contributory negligence – statutory benefits – intoxicated – duty of care|
|Legislation cited||Civil Liability Act 2002 (NSW), section 5R|
Motor Accident Injuries Act 2017 (NSW) ss 3.28, 8.10(4)(b)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017
Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; 59 ALJR 492|
T & X Company Pty Limited v Chivas  NSWCA 235
Vale v Eggins  NSWCA 248
AHR – Claimant
NRMA – 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
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether the motor accident was caused mostly by the fault of the injured person.
1. There is a dispute between the Claimant and the Insurer regarding whether his contributory negligence is to such a degree that the insurer is entitled to cease payment of his statutory benefits.
2. On 15 August 2019 the Insurer issued a Liability Notice determining that the Claimant was ‘mostly at fault’ for the accident, alleging contributory negligence of 75%.
3. The Claimant lodged an internal review application. On 15 September 2019 the Insurer reaffirmed its liability decision.
4. The Claimant quite appropriately concedes he was partially at fault for the accident. He submits, however, that the appropriate apportionment of liability as between the two parties is 50/50.
5. I held a teleconference on 9 December 2019.
6. At the teleconference the parties confirmed the issues in dispute were as follows:
b. If he is not mostly at fault (ie, his contributory negligence is less than 62%), what is the appropriate degree of contributory negligence his statutory benefits should be reduced by?
c. Should I make an order under section 8.10(4)(b) of the Act to permit the claimant to recover legal costs of this dispute in excess of the regulated fee on the basis that the circumstances make the claim exceptional?
7. As the claimant wished to question the driver, and the insurer wished to question the claimant, it was necessary for an assessment conference to be convened.
8. On 17 December 2019 I conducted an assessment conference. Mr Andrew Stone SC, instructed by Mr Phillip Ferraro, solicitor, for Turner Freeman Lawyers appeared for the claimant. The insurer was represented by Mr Anthony Crowe of Hall & Wilcox.
9. The insured driver was questioned. The claimant was not cross-examined in light of the concessions made by Mr Stone SC in relation to the influence of alcohol on the claimant’s decision making.. I requested the parties provide certain information to myself in relation to an award of costs and reserved my decision.
The location of the accident
10. Midson Road, Epping, where the accident occurred, runs in a generally north/south direction. There is one lane of traffic in either direction. Parking is allowed on both sides of the roadway. There is a white solid line indicating the parking area. The limit is 50kph.
11. The accident occurred at 5:30pm on Easter Monday, 22 April 2019. The claimant commenced crossing Midson Road approximately 20 metres south of Chesterfield Road moving from the western to the eastern kerb.
12. The claimant concedes he was intoxicated.
13. The point of impact was in the middle of the northbound lane of Midson Road.
14. The claimant noticed the insured vehicle before the collision.
15. The insured driver commenced braking when he saw the claimant.
16. I asked the Claimant at the assessment conference whether he maintained the view in his signed statement dated 14 October 2019 that “I remember the events of the day of the accident well”. He said that was correct.
17. Paragraph 17 of his signed statement dated 27 May 2019 states:
18. In his statement dated 14 October 2019 the Claimant says::
19. In the Application for Personal Injury Benefits, the claimant declares:
Evidence of Insured Driver
20. The driver has provided a statement to the insurer’s investigators, M&A Investigations. He also provided a statement to NSW Police, however, that Notebook Entry is not in front of me. I place minimal weight on the transcript of interview of Senior Constable Gosby contained in the M&A Investigation report.
21. When questioned by Mr Crowe, the insured driver maintained he had been travelling 40-45kph along Midson Road and he first saw the claimant 50 metres away. As soon as he saw him he then braked and decreased his speed to an estimated speed of 30-35kph. He said he looked at the speedometer at the time of impact and noted it was 30kph.
22. In answer to questions posed to him by Senior Counsel for the claimant, the insured driver could not remember how his statement obtained by the investigators came to be printed or how his signature came to be on the statement.
23. He advised he had never been involved in a motor vehicle accident before.
24. He is 20 years of age. At the time of the accident he only had 18 months driving experience.
25. He was test driving a Subaru Impreza (the insured vehicle). He has never owned a manual car and had only driven this particular vehicle four times before the accident.
26. After the collision he failed to apply the clutch and stalled the car.
27. The insured agreed with the proposition put to him by Mr Stone SC that, in hindsight, there were other safety measures he could have taken. There was no traffic travelling on the other side of the road and he could have moved closer to the centre of the roadway or breached the white lines in the middle of the road to avoid a collision.
28. The insured stated he believed the claimant was going to wait for him to drive past before crossing the road.
29. The insured driver also agreed with Senior Counsel’s proposition that pedestrians do irrational things and that he knew that to be that case.
30. I have considered the documents provided in the application and the reply and any further information provided by the parties.
31. The insurer has provided detailed submissions. Unfortunately, those submissions do not address what the allegations of fault are on the part of the insured driver.
32. Senior Counsel for the claimant helpfully clarified in oral submissions that, so far as the claimant was concerned, the particulars of fault against the driver were as follows:
(b) Failure to apply brakes more heavily; and
(c) Failure to position the vehicle further to the centre of the roadway to avoid a collision.
33. The insurer’s submissions address contributory negligence and point to the following as constituting negligence on the part of the claimant:
(b) Failure to keep a proper lookout; and
(c) Failing to check back to his right to ensure the insured driver had stopped the vehicle to allow him to pass.
34. The insurer relies on Vale v Eggins  NSWCA 248 and T & X Company Pty Limited v Chivas  NSWCA 235 in support of their allegation the claimant failed to take reasonable precautions for his own safety and contributed to the accident and his own injuries to the extent the contributory negligence should be assessed at 75%.
35. Senior Counsel for the claimant emphasised that, in terms of prudent driving practice, the insured driver was concerned but not sufficiently so in the circumstances.
36. He submitted that if I followed the view of Basten JA in T & X Company Pty Limited v Chivas  NSWCA 235 that did not absolve me of the need to look at the relative culpability of the parties. He emphasised that on any view the relative culpability of the parties fell short of one third/two-thirds vis a vis the insured/claimant.
37. 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; and
- Civil Liability Act 2002 (NSW).
38. I have considered the documents provided in the application and the reply, the further information provided by the parties and heard evidence from the insured driver and claimant.
39. The appropriate approach to apportionment of blame in the law of negligence requires the “balancing exercise” described in Podrebersek v Australian Iron & Steel Pty Ltd  HCA 34; 59 ALJR 492 (Podrebersek). I must also apply the relevant provisions of the Civil Liability Act 2002 (NSW) (CLA), including s 5R.
40. As Mr Stone SC pointed out in his written submissions, there appears to be a conflict in the authorities on whether, in conducting the balancing exercise required by Podrebersek after the introduction of the CLA, it remains relevant to consider that a driver has greater potential to cause damage to a pedestrian than vice versa.
41. However, neither party submitted I needed to venture a firm opinion on that debate in order to resolve this dispute. As my reasons will show, on my interpretation of the evidence it makes no difference to the outcome of my decision which answer to that question is adopted.
42. That being said, I do tentatively prefer Basten JA’s approach in Chivas. There is, in my view, great force in the proposition that both a driver and a pedestrian should be taken to be equally conscious of the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. Accordingly, the driver ought take greater care for the pedestrian and the pedestrian ought take greater care for his or her own safety.
43. While the claimant submits a finding of 50% contributory negligence would be appropriate on the evidence, it is my view that he must bear a larger proportion of blame for this accident. That is so on the basis of the following factors (which I note were accepted by Mr Stone SC as being against the claimant):
(b) the claimant saw the insured’s vehicle approaching him in sufficient time to cease his attempt at crossing the road and wait for the insured to travel past him; and
(c) having noted the impending path of the vehicle, the claimant then looked in the opposite direction (losing sight of the approaching vehicle in the process) and knowingly walked into the potential path of the vehicle without knowledge of where it then was in relation to him.
44. Weighing the evidence as a whole, the claimant exhibited a serious disregard for his own safety in the circumstances and must be attributed a significant share of the responsibility for the accident.
45. The insured driver did not take the care required by the reasonable person in his position. I accept Mr Stone SC’s submission that the insured driver had other driving manoeuvres available to him that may have reduced the chance of a collision or the magnitude of that collision. He therefore breached his duty of care owed to the claimant, such breach being (partly) causative of the accident.
46. However, his culpability relative to that of the claimant is materially lower. Even if it is accepted that he could have further reduced his speed or braked harder, the insured was still driving under the speed limit and did reduce his speed in response to seeing the claimant. I note Mr Stone SC expressly eschewed any allegation of failure to keep a proper lookout.
47. Accordingly, it is my view that contributory negligence should be assessed at 70%. Had I followed the view of Beazley P (as her Excellency then was) in Chivas that the greater potential for damage on the part of a driver vis a vis a pedestrian is relevant in assessing relative culpability, I would have assessed contributory negligence at 65%.
48. In other words, on either the approach of Beazley P or Basten JA in Chivas I would still find the claimant to be mostly at fault for the subject accident.
Costs and disbursements
49. I am satisfied that exceptional circumstances exist that justify payment of the legal costs incurred by the Claimant above the otherwise regulated maximum amount.
50. It was necessary to have a face to face conference and for the insured driver to give evidence and be questioned. This process greatly assisted me in making my decision. I consider that, in the circumstances, the claimant is entitled to payment of legal costs in accordance with s8.10(4)(b) of the Act.
51. The insurer neither consents nor opposes the application for the payment of the Claimant’s legal costs pursuant to s8.10(4)(b) of the Act.
52. I have reviewed invoices for the Claimant’s legal representatives and Senior Counsel. The total claimed is $9,538.75 plus GST ($10,492.63 inclusive of GST).
53. The Insurer submits, however, that of the solicitor’s fees, 4 hours rather than 5 would be more appropriate in relation to preparation and attending the DRS Assessment in circumstances where Senior Counsel was briefed. I do not agree with that submission. It is reasonable that preparation and attendance for a conference in a matter with a degree of legal and factual complexity be in the order of 5 hours.
54. I believe that the amounts claimed are fair and reasonable in all the circumstances of this matter and therefore allow costs in the sum of $10,492.63 inclusive of GST.
My determination of the Miscellaneous Claim is as follows:
55. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (NSW) the motor accident was caused mostly by the fault of the injured person.
56. Legal Costs: The amount of the Claimant’s costs to be paid by the insurer is $10,492.63 inclusive of GST.
DRS Claims Assessor
Dispute Resolution Services