CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Denny v Allianz Australia Insurance Limited [2023] NSWPIC 228	
		
Claimant:	Michael Denny	
		
insurer:	Allianz Australia Insurance Limited	
		
Member:	David Ford	
		
DATE OF DECISION:	15 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether for the purposes of section 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident; the claimant was a pedestrian and was attempting to cross Phillip St Newtown; as he was crossing the street he was struck by the insured vehicle which was attempting to reverse back down Phillip St; both parties failed to keep a proper lookout the insurer alleged 50% contributory negligence with regard to the claimant; Held – for the purposes of section 3.38, the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%; the claimant entitled to payment of legal costs assessed at the maximum regulated fee. 	
determinations made:	Certificate
Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and cl 7.497 of the Motor Accident Guidelines
The findings of the assessment of this dispute are as follows:
1.	For the purposes of s 3.38 of the Motor Accident Injuries Act 2017 NSW, the insurer  is entitled to reduce statutory benefits payable  in respect of the motor accident by 10%.
2.	Effective Date: This determination takes effect on 15 May 2023. 
3.	Legal Costs: the amount of the claimant’s costs in accordance with the Motor Accident Injuries Regulation 2017 is $1,800.48 plus GST.	

Reasons for Decision
Issued under s 7.36(5) 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)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of s 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
1.	This is a dispute between Michael Denny, the claimant, and the insurer with respect to the payment of statutory benefits pursuant to s. 3.38 of the Motor Accident Injuries Act 2017.
2.	The insurer undertook an internal review, and a statement of reasons is attached to the application and is dated 9 January 2023. The decision of the internal reviewer is that the claimant’s contributory negligence is affirmed at 50%.
3.	The claimant seeks to challenge the determination.
4.	On 28 April 2022, the claimant was a pedestrian and was attempting to cross Phillip Street Newtown to enter Thurnby Lane. Before committing to cross Phillip Street, the claimant states he looked both to his right and left and had noticed the motor vehicle being driven by the insured driver had stopped in a line of traffic, at the intersection Phillip Street and Enmore Road. The intersection is controlled by traffic light signals. At the assessment conference, he stated the insured motor vehicle had stopped approximately 20 metres away from where he was standing on Phillip Street. He also stated, there were three motor vehicles which were stationary in front of the insured motor vehicle at the intersection.
5.	As he commenced to cross Phillip Street, after looking both ways, without warning, he was struck by the insured motor vehicle which was attempting to reverse back down Phillip Street towards Thurnby Lane. A photograph was tendered at the assessment conference which depicted the point of impact, approximately in the middle of Phillip Street adjacent to Thurnby Lane. The claimant did not observe the insured motor vehicle reversing until it was only one metre away from him when he was struck. He could not estimate the reversing speed of the insured vehicle. He said he was walking at normal walking pace. After being struck by the insured vehicle, he did not fall, but put his left arm and foot out to brace he himself against the reversing vehicle. It was at this time; he saw two surfboards placed inside the insured vehicle.

Documents considered.
6.	I have considered the documents provided in the Application and in the Reply.
Claimant’s submissions
7.	The solicitor for the claimant rejects the allegations of contributory negligence driver and submits the insured driver is wholly at fault for causing the collision for the following reasons:
a.	failing to reverse at a safe speed.
b.	driving against the flow of traffic.
c.	failing to keep a proper lookout.
d.	reversing his vehicle when it was unsafe to do so.
e.	failing to appropriately cheque the path was clear before reversing his vehicle.
f.	reversing through an intersection at speed.
g.	failing to ensure his rear vision was obstructed from hazards, and
h.	failing to take evasive action to avoid the collision.
8.	The above submission contained a typographical error, the insured driver is a female.
9.	I refer to the claimant's version of events as set out in the submissions, and I note the contents of paragraphs 2.1-2.8 inclusive. The information contained therein is consistent with his version of the circumstances leading up to the accident, which was recounted by him at the assessment conference. In particular I note paragraph 2.9 of the submissions which is as follows:
“Upon speaking with the insured driver, the insured informed the claimant that he could not see him as he had surfboards in the back that obstructed his view”. 
I note the presence of the surfboards was also reported by the claimant to the police. It is recorded in a report dated 6th of July 2022.
10.	At paragraph 2.11 of these submissions, the solicitor for the claimant sets out in detail the statement of the insured driver dated 7 July 2022. The insured driver provides an explanation as to why she was reversing her vehicle backwards along Phillip Street. She intended to park her vehicle in Thurnby Lane, as she was looking for a parking space nearby. There is no mention of the presence of two surfboards in her vehicle. I note the following in sub- paragraph 24.
“This male then said that I had just hit him. I said I did not see you at all it's very dark and you are wearing all black”.
11.	The solicitor for the claimant then makes further submissions regarding contributory negligence and refers to relevant legislation together with relevant case law. It is also submitted, but contrary to the assertion by the insured driver, the area in question at the time of the accident was well lit with streetlights.
12.	In conclusion, it is submitted the insured driver ought to be found to be wholly at fault for the subject accident. There is a further submission, in the event the claimant is successful in this application, then legal costs should be awarded on the basis there are exceptional circumstances in this case.
13.	I also note the statement of the claimant dated 6 November 2022, and apart from the description of the accident commencing a paragraph 8, the remainder of the statement contains information which is not relevant to the determination of this miscellaneous claim, but rather is relevant in the eventual damages assessment claim to be lodged on behalf of the claimant. 
Insurer’s submissions
14.	There was no appearance of the insured driver at the conference. 
15.	In the Application lodged by the solicitor for the claimant, there is a statement of the insured driver dated 7 July 2022. I note the following paragraphs”.
 “(16) As I got to the intersection at Thurnby Lane, which is directly behind Alfalfa House Community Food Co-Op,I looked left and saw a parking space in Thurnby Lane not far away.
(17) 	There were no cars in front of me or behind me, so I stopped adjacent to the intersection. I then started reversing very slowly, 5 kilometres per hour, with the intention of then turning left into Thurnby Lane.
(18) 	At this time, I can confirm it was very dark in the whole area and the area is not very well lit with streetlights. I had my headlights on
…
(20)	I looked behind when I started reversing and it was clear. Then as soon as I had started reversing, I heard a noise and at the rear and it felt like I had collided with a rubbish bin or something similar. it was a very small bump at most, and I was only travelling 5kph.
(21) 	I can confirm I had been reversing straight backwards along Phillip St, backwards away from Enmore Road and I was adjacent to the intersection at Thurnby Lane to my left
(22) 	After I had heard and then felt the small bump at the rear, the next second, I saw a male dressed in black clothing walk up to the front passenger side of my car
(23) 	I then put the window down and asked him what had happened.
(24) 	The male then said that I had just hit him. I said I did not see you at all it's very dark and you are wearing all black.
(25) 	he said yeah, I was directly walking behind your car
...”
16.	I refer to the internal review finding of the insurer dated 9 January 2023 at paragraph 4 inter alia, it is recorded the following.
“POI Had reversed VEH1 into the VIC and claimed not to have seen the VIC crossing as they had two surfboards in the back and was unable to see properly behind them.” 
17.	I also refer to paragraph 12 of the internal review in which the author has assumed the claimant smoked marijuana on several occasions during the day, the last occasion had been 18.45pm. The author further considers the claimant’s ability to observe and judge his surroundings was impaired by marijuana whilst walking across the road. I further note the following.
“I accept you saw the insured’s vehicle and walked directly behind the insured’s vehicle whilst crossing the road, as such I consider your action of walking directly behind a reversing vehicle under the influence of marijuana has contributed to the collision”.
18.	In summary, the author started the following at paragraph 15.
“In light of the above I consider your actions of walking directly behind the reversing vehicle under the influence of marijuana has materially contributed to the collision. The decision that your contributory negligence is assessed at 50% is affirmed”.
19.	I refer to the submissions lodged by the solicitor for the insurer dated 27 February 2023. The submissions also refer to the ambulance report dated 28 April 2022 which records the claimant as having smoked four marijuana cones on the day of the accident, the last being at 18.45pm. The clinical notes of the Royal Prince Alfred Hospital dated 28 April 2022 also record he admitted to smoking marijuana cones. The submissions also provide calculations as to the distance travelled by the insured vehicle whilst reversing down Phillip Street and has provided calculations of speeds at 5kph and 10kph. These calculations are made on the presumption the insured driver brought her vehicle to halt at the intersection Phillip Street and Enmore Road and there were no other vehicles in front of her vehicle at the intersection. It is assumed in these calculations driver the insured driver reversed her vehicle 43 metres from the intersection back to the point of collision with the claimant. 
20.	It is therefore submitted, based upon these calculations, the claimant took an excessive amount of time to cross the roadway which increased his risk of injury.
21.	I further note the submission at paragraph 17 as follows:
“Additionally, the insurer notes that within 40 metres of where the accident occurred the claimant had the benefit of a traffic-controlled crossing which he could have used to safely cross the roadway. The claimant 's failure to do so was clearly contributory to his injuries.”
REASONS
22.	The onus of proving contributory negligence rests upon the insurer. The driver of a motor vehicle is to take reasonable care for the safety of other road users,including pedestrians. In assessing contributory negligence, it is necessary to weigh the respective acts of the claimant and the insured driver to determine the degree of causal potency of each.
23.	In Manley v Alexander (2005) HCA 79 2005 80 ALJ R413 at [11] the majority of the High Court emphasised the duty of a driver to give “reasonable attention to all that is happening on and near the roadway that might present a source of danger” also see Jarzebski and anor v Jiminez 2006 ( NSW) CA 104 at [23].
24.	A claimant who asserts a motorist is negligent in failing to keep a proper lookout must establish the motorist had the opportunity to see the claimant and failed to do so. This is consistent with the principle in Manley v Alexander that is the duty of a motorist to be observant of all possible sources of danger on the road.
25.	Section 5R (1) the Civil Liability Act NSW 2002 provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time see s 5R (2) (a) and (b)
26.	Section 5B of the Civil Liability Act 2002 provides in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)	the probability that the harm would occur if care were not taken;
(b)	the likely seriousness of the harm;
(c)	the burden of taking precautions to avoid the risk of harm;
(d)	the social utility of the activity that creates the risk of harm, and
(e)	the determination of whether a claimant has been contributory negligent is to be decided objectively on the basis of the facts and circumstances of the case, see Serrao (by his tutor) Serrao v Cornelius (2) 2016 NSW CA 231 (at [61]) and 
T and X Company Ltd v Chivas 2014 NSW CA 235 at [51].
27.	I again state the insured driver was not present at the conference. Furthermore, it is clear from her statement she bought her vehice to a halt near the intersection of Thurnby Lane, and not the intersection with Enmore Road, see paragraph 15 above. Therefore, I reject the submission the insured driver reversed her vehicle 43 metres down Phillip Street to the point of collision with the claimant.
28.	At the conference, the claimant produced a photograph of the insured vehicle taken at 6.47pm. This photograph was taken within minutes of the collision. I accept this photograph to be accurate evidence of the time of the collision. The claimant further denied he smoked marijuana at 6.45pm. He did admit to smoking marijuana during the day, however there was no evidence submitted by the solicitor for the insurer seeking to prove the claimant was under the influence of marijuana at the time of the collision.
29.	I also accept his statement there were two surfboards positioned inside the insured vehicle at the time of the collision. I also consider it to have been reasonable for him to cross Phillip Street at this point. As I stated to the parties at the conference, it is not a major road and ordinarily, it would be safe to cross the road at this point and it would not be necessary for a pedestrian to walk a distance of approximately 50 metres to the traffic lights at the intersection with Enmore Road. Also, the photographs of the collision site, taken at night and tendered at the conference, in my view, depict the area as being well lit.
30.	I find the insured driver was not keeping a proper lookout when reversing her vehicle down Phillip Street towards the intersection with Thurnby Lane and if she had been keeping a proper lookout, she would have seen the claiamnt attempting to cross the road, regardless of the fact he was wearing dark clothing.
31.	However, I further find the claimant, although having taken the proper precautions before attempting to cross the road, should still have continued to ensure there were no vehicles approaching from either his left or right, and if he had done so, he would have observed the insured driver reversing her vehicle.
32.	I note with regard to contributory negligence, the insurer has submitted 50%. However, having regard to the fact, in my view, the claiamnt should have continued to observe any vehicles approaching from his left or right as he crossed the road, I find he is guilty of contributory negligence and as such, a fair apportionment of blame between the claimant and the insured driver is 90% for the insured driver and 10% for the claimant. Therefore, the claimant has contributed to his injuries to the extent of 10%.
FINDINGS
33.	My determination of the Miscellaneous Claim is as follows.
34.	For the purposes of s 3.38 of the MAI Act, the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%.
COSTS AND DISBURSEMENTS
35.	The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 is $1,800.48 plus GST
CONCLUSION
36.	My determination of the Miscellaneous Claim is as follows: 
(a)	For the purposes of s 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%.
(b)	Effective date: this determination takes effect on 15 May 2022.
(c)	Legal costs: the claimant’s costs are $1,800.48 plus GST. 
LEGISLATION
37.	In making my decision I have considered the following legislation and guidelines:
(a)	the Motor Accident Injuries Act 2017.
(b)	Motor Accident Injuries Act Regulation 2017.
(c)	Motor Accident Guidelines 2020, and
(d)	Civil Liability Act 2002.