CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Hidalgo v Allianz Australia Insurance Limited [2024] NSWPIC 356	
		
Claimant:	Nina Clementina Hidalgo	
		
insurer:	Allianz	
		
Member:	David Ford	
		
DATE OF DECISION:	2 July 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; contributory negligence; whether the insurer is entitled to reduce statutory benefits payable in respect of the motor accident for the purposes of section 3.38; the claimant was a passenger on a state transit bus; injured left shoulder and cervical spine when attempting to secure her trolley case in the luggage rack as the bus doors closed and the bus moved forward; bus driver sharply applied the brakes to stop at a red traffic light causing the claimant to fall forward and land heavily on the floor of the bus; the claimant was not holding on to an available handrail when attempting to secure her trolley case in the luggage rack; insurer alleged 25% contributory negligence with regard to the claimant; Held – the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%. 
	
determinations made:	CERTIFICATE
The findings of the assessment of this dispute are as follows:
1.	For the purposes of s 3.8 of the Motor Accident Injuries Act 2017, the insurer is entitled to reduce statutory benefits in respect of the motor accident by 10%. 
2.	Effective date: this determination takes effect on 2 July 2024. 
3.	Legal costs: the claimant is self represented and therefore is not entitled to legal costs.

STATEMENT OF REASONS
introduction
1.	This is a dispute between Nina Clementina Hidalgo, (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 24 January 2023. The decision of the internal reviewer is that the claimant’s contributory negligence is affirmed at 25%.
3.	The claimant seeks to challenge the determination. She is retired and in receipt of the age pension and is not entitled to receive statutory wage payments.
4.	On 1 March 2021, the claimant boarded a State Transit bus (route 437) on Marion St Leichardt. At the time she was carrying a trolley case with an extended handle. At the in person hearing on 18 June 2024, the CCTV footage of the entire incident was viewed by the parties and myself, several times. The claimant entered the bus, moved down the aisle and then picked up her trolley case and placed it in the luggage rack. She then attempted to retract the extended handle of the trolley case with both hands, however, it was jammed and would not release.
5.	As soon as she had placed the trolley case in the luggage rack, the insured driver closed the doors of the bus and commenced to drive the bus forward. It then transpired, in only a few seconds, the insured driver sharply applied the brakes of the bus to stop at a red traffic light. The action of applying the brakes was quite severe, and it caused the claimant to fall forward and land heavily on the floor of the bus, injuring her left shoulder and cervical spine.
6.	The insurer has alleged contributory negligence of 25% on the basis it is submitted, she should have been holding onto the handrail of the bus with her left hand, whilst attempting to retract the handle of her trolley case, as the insured driver had closed the doors of the bus and it would have been evident to her, the bus was immediately about to depart the bus stop and move in a forward motion.
7.	The claimant submits the contributory negligence as alleged by the insurer should be assessed at 0%.
Documents considered
8.	I have considered the documents provided in the Application for Miscellaneous Claim and in the Reply and considered other documents which were subsequently lodged on the portal by the claimant. I received further submissions from the claimant dated 20 June 2024 which were lodged on the portal after the in-person hearing.
Claimant’s submissions
9.	The CCTV footage clearly depicts the incident. The claimant rejects the allegations of contributory negligence and at the in-person hearing, she stated she tried to push down the handle of the trolley case at least on two occasions. It was the first time the handle did not retract. She did not want to leave the trolley case on the aisle of the bus and for this reason, she decided to place it in the luggage rack. She admitted she did not try to retract the handle when the trolley case was on the floor of the bus. She further stated, it was her usual practice to retract the handle after she had placed it in the luggage rack.
10.	She further submitted; the insured driver gave no warning he was commencing to depart the bus stop. She concedes, at all times, she was not facing the insured driver when attempting to place the trolley case in the luggage rack. She submits the insured driver should have known of the danger, as “he had then full control of the situation whereas I had no control over my situation”. It is submitted he abruptly put the brakes on, as the lights had changed.
11.	The claimant further submitted the following:
“The driver had the last clear chance to warn me as he was leaving. Either helped, warned or wait until the situation was fixed, I needed my two hands to store away the luggage and retract the handle. I could not hold on until I finished. He was concerned so he kept looking back. He saw me, I didn't see him leave. I am not fast mentally or physically at my age to react, but I realised there was a serious likelihood of harm to me and others if I didn't secure my luggage on wheels and a fully extended handle, I felt I had to take precautions. Unable to secure my luggage my last chance to regain control was to put it down and sit but couldn't do that as the driver moved of prematurely before I was able to be seated. The driver failed to quickly decide on a situation was foreseeable to him. Even if I had held onto the rail, that would have not stopped my accident as I am a senior person with disabilities and very little strength. So might not holding onto the rail would have made no difference. The abrupt stop the driver made in a short distance, would not allow me, nor other seniors, to hold safely onto the rail.”
12.	In her further submissions dated 20 June 2024 she states the following:
“NON-USE OF HANDRAIL
I never saw the bus departing, so I did not use a handrail I required both hands to secure the luggage and also to lift it I paused behind the luggage shelf so as not to block the transport fellow with my suitcase as he walked forcefully down the aisle, I then had a problematic situation to resolve in two seconds.
I have unusually little balance and strength due to a previous car accident and a previous shoulder operation. Had I hanged onto the rail it may have just been a different accident but also harmful. I can medically prove that I cannot carry weights, hence the little suitcase which I have used for at least 20 years with no problems I can lift something not heavy for a second, but I cannot carry it.”
Insurer’s submissions
13.	I refer to the following paragraphs not the insurance admissions dated 4 April 2024:
“15. 	The insurer submits the actions of the claimant, in failing to prepare her luggage to be placed in the luggage department as soon as she boarded the bus, and to hold onto the handrail when it was evident the bus would commence moving, contributed to her injuries.
16. 	It was foreseeable that the bus would depart the stop once all passengers had boarded and that a reasonable person would have taken a seat, or held onto any of the available hand railings, to stabilise themselves in anticipation of the departure
21. 	As is evident from the CCTV footage there was an available hand right within reaching distance, however the claimant did not utilise same.
22. 	Further despite the bus not moving for some 30 seconds after the claimant tapped on, the claimant failed to securely place her luggage and take a seat on the bus. The insurer submits there was adequate time provided to the claimant to retract the handle of her luggage and safely place it in the compartment before the bus moved from a stationary position.
23, 	On the basis of the above evidence, the insurer submits that the elements of s 5B are satisfied noting
(a)	It was (or ought to have been) foreseeable that when boarding the bus, it was going to depart and would be frequently stopping.
(b)	The risk presented by the situation was not insignificant.
(c)	A reasonable person in the claimant's position would have repaired their luggage to place in the compartment and taking a seat, or alternatively, utilised the available handrails in anticipation of the bus moving off.
(d)	The claimant could have avoided the risk of palm by simply holding onto the available handrails or sitting down.”
14.	I also refer to the following paragraphs of the internal review dated 24 January 2023:
“12.  While the bus driver did not ensure that all passengers were seated or holding on for safety before pulling away from the bus stop, however, I also do not consider him to be negligent when he was forced to stop at a red light. I also accept that each passenger is required to take precautionary actions to assist in their own safety, especially when the bus is moving and no longer in a stationary position. In the circumstances it is expected you would be cautious of your safety, especially when the bus began moving and instead of continuing to manoeuvre your luggage, which is already in the tray, you should have held onto a handrail or support for safety or taken an available seat, at your earliest convenience, to ensure your own safety, noting that a moving bus is prone to start and stop at any time while driving on the road.
13. In the circumstances having regard to the fact that you were in the process of manoeuvring your luggage in the tray, while the bus was in motion, you did not perform any evasive action to prevent any accident on board of a moving bus in the means of taking an available seat at your earliest convenience or holding onto some support for safety to prevent a likely fall from occurring. I accept that you have contributed to your fall by 25%.”
REASONS
15.	The onus of proving contributory negligence rests upon the insurer. The driver of an omnibus is to take reasonable care for the safety of other road users, pedestrians, and his passengers. 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.
16.	Section 5R (1) of the Civil Liability Act 2002 provides principles that are applicable in determining whether a person has been negligent and 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 (24) (a) and (b).
17.	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) 2018 NSWCA 231 (at [61]) and T and X Company Ltd 2014 NSWCA 235 at (51).
18.	The insured driver did not attend the in person hearing for the purposes of being questioned by both parties.
19.	After boarding the bus, the claimant, at all times, was facing towards the rear of the bus. She managed to safely place the trolley case into the luggage rack and then she attempted to retract the handle. As soon as the trolley case was placed in the luggage rack, the insured driver closed the doors of the bus and proceeded to drive forward.
20.	As soon as the doors of the bus were closed, the claimant would have been aware the departure of the bus from the bus stop was imminent. If she had been facing towards the insured driver, rather than the rear of the bus, she could have held onto the handrail with her left hand and attempt to sit down, or alternatively, call out to the insured driver she had not completed the task of placing her trolley case in the luggage rack.
21.	I accept the insured driver sharply applied the brakes of the bus to stop at a red light, and the whole incident commencing when she lifted the trolley case into the luggage rack, took place in a few seconds. However, I find a reasonable person in a position of being a passenger on a bus, is aware of the fact the bus may move forward in motion, after all passengers have boarded the bus and the bus doors have been closed, regardless of whether some of the boarding passengers have managed to take a seat. In some circumstances, there are no seats available, and the boarding passenger must stand and should immediately hold one of the available handrails. It is not possible to stand in a moving bus safely without taking the precaution of holding onto a handrail.
22.	I find the claimant 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 her injuries to the extent of 10%.
FINDINGS
23.	For the purposes of s 3.38 the insurer is entitled to reduce statutory benefits payable in respect of the motor accident by 10%.
COSTS AND DISBURSEMENTS
24.	The claimant is self represented and therefore is not entitled to legal costs.
CONCLUSION
25.	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 2 July 2024.
(c)	Legal costs: Nil.
LEGISLATION
26.	In making my decision I have considered the following legislation and guidelines:
(a)	Motor Accident Injuries Act 2017;
(b)	Motor Accident Injuries Act Regulation 2017;
(c)	Motor Accident Guidelines 2020, and
(d)	Civil Liability Act 2002.