CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Lee v QBE Insurance (Australia) Limited [2022] NSWPIC 508	
		
Claimant:	Kum Sook Lee	
		
insurer:	QBE Insurance (Australia) Limited	
		
Member:	Elizabeth Medland	
		
DATE OF DECISION:	15 August 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS - Whether the accident is a no-fault accident for the purposes of Part 5 of the Motor Accident Injuries Act 2017 (2017 Act); whether the accident was the fault of another person under section 3.11 of the 2017 Act; whether the accident was mostly the fault of the injured person under section 3.28 of the 2017 Act;  claimant a pedestrian crossing roadway at night during rainfall and emerged from behind a wagon stationary at an intersection; collision occurred between the claimant and the insured vehicle which had turned left onto the roadway; Held – the accident is a no-fault accident due to the accident not being the fault of the insured driver; claimant found to be contributory negligent in the order of 70% and therefore mostly at fault.
	
determinations made:	1.	For the purposes of Part 5 the motor accident is a no-fault motor accident. 
2.	For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 
3.	For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person.  
4.	Effective Date: This determination takes effect on 16 August 2021. 
5.	Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,000 plus GST.

Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
1.	This determination involves the following disputes between the parties:
a.	whether for the purposes of Part 5 of the Motor Accident Injuries Act 2017 (MAI Act), the subject accident is a “no-fault” motor accident, and
b.	whether the injured person is mostly at fault in the motor accident pursuant to ss 3.11 and 3.28 of the MAI Act.  
2.	Ms Kum Sook Lee (the claimant) is a 60 year old female who was injured in a motor vehicle accident occurring on 16 February 2022.  The claimant was a pedestrian when there was a collision between her and a vehicle insured by QBE Insurance (Australia) Limited (the insurer). 
3.	The claimant subsequently lodged an Application for Personal Injury Benefits (the claim) which was accepted by the insurer. 
4.	However, by way of notice dated 5 August 2021 the insurer advised the claimant that they considered the accident to fall within the ‘no fault’ provisions of the MAI Act, and the claimant’s contributory negligence amounted to 65%.  Accordingly, the claimant was considered by the insurer to be mostly at fault for the purposes of ss 3.11 and 3.28 of the MAI Act and therefore statutory benefits would cease from after 26 weeks. 
5.	The claimant lodged an application for internal review with the insurer.  The insurer issued a determination on 13 September 2021 that affirmed the original decision that the claimant was considered mostly at fault. 
6.	Consequently, the claimant has lodged an application with the Personal Injury Commission (the Commission) for determination.  
7.	I have held one teleconference with the legal representatives of the parties on 
25 March 2022.  I was advised that the parties were conducting informal discussions and hoped that the matter would resolve.   I made directions for the provision of updated submissions.  Subsequently, the claimant’s representative requested an extension, which I granted.  Submissions were not received in accordance with that direction.  Eventually, I made further directions for the provision of submissions from the parties.  Those submissions have now been received, the last of which became visible to me on 2 August 2022.  
8.	I also subsequently directed that complete copies of all investigation reports be provided to me by the insurer.  Those became visible to me on 29 August 2022. 
Documents considered
9.	I have considered the documents provided in the application and the reply and any further information provided by the parties.
Legislative framework
10.	Section 3.11 of the MAI Act provides as follows:
“(1) 	An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) 	the motor accident was caused wholly or mostly by the fault of the person, or
(b) 	the person’s only injuries resulting from the motor accident were minor injuries.
(2) 	A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
11.	Section 3.28 of the MAI Act provides as follows:
“(1) 	An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) 	the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) 	the person’s only injuries resulting from the motor accident were minor injuries.
(2) 	A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) 	Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
12.	Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, a dispute relating to s 3.11 and s 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act. 
13.	Part 5 of the MAI Act deals with “no-fault” motor accidents.  Section 5.1 of the MAI Act provides a definition as follows:
“No-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.” 
14.	Pursuant to Schedule 2, cl (g1), a dispute relating to whether for the purposes of Part 5 a motor accident is a no-fault accident is declared a miscellaneous claims assessment matter for the purpose of Part 7 of the MAI Act. 
15.	Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment. 
Circumstances of the accident and summary of evidence
16.	The accident occurred at the intersection of John Street and Ann Street, Lidcombe at approximately 9pm.  
17.	In the claimant’s claim form she described the accident as follows:
“On 16th Feb, I got hit by a car while I was crossing the street (from John St to Ann St).  Before I crossed the street, I had made sure both left and right side are clear to ensure that there were no cars.
However, a white Q3 Audi entered the street by turning left from the other direction without noticing I was crossing the street (still in the middle of the st) and the front side of the car hit my left side of body. 
…”
18.	I have been provided with a copy of the NSW Police Force “COPS” report.   The narrative included in the report relevantly (omitting parts not related to the circumstances of the accident itself) is as follows:
“About 9.05pm on Tuesday 16th February 2021, the VIC was walking in a southerly direction along on the footpath of John St Lidcombe, closest cross street Ann St. 
In an attempt to cross Ann st back onto John St, the VIC has walked approximately 7m down Ann st and stopped at the nearest gap between cars parked on Ann st.  The VIC waited for several oncoming cars travelling west on Ann st towards John St, and then proceeded at a running pace to cross the street. 
At the same time a White Audi with NSW registration plates XXXXXX, was taking the corner of John and Ann st, travelling east on Ann St. Also at the same time, there was a line of several cars on Ann St, turning left onto John St.
Consequently, the view of both the VIC and white Audi was significantly obstructed. 
In attempting to cross the road, the VIC has struck the VEH1, coming into contact with the VIC’s hips and legs, lower part of causing her to fall down onto the middle of the road.  The impact on VEH 1 was to the front drivers side panel, just above the tyre. 
…
The road conditions were slippery due to the heavy rain fall that night.  Visibility was low as the incident occurred at night. 
The following morning the VIC has woken up and felt strong pain in her knees and general leg area.  She went to her local GP for an assessment. 
The VIC contacted police who arrived a short time later.  Police obtained a statement from the VIC.  Police canvassed the area for CCTV footage with nil findings.  The VIC informed police that due to the heavy rain she was in a hurry and ran across the road without paying attention to any oncoming traffic. 
Police contacted Driver 1 who provided police with a version of events. On BWV.  Driver 1’s version was consistent with the VIC’s version, specifically, about vehicles being parked on the kerb and obstructing both Driver 1 and the VIC’s view. 
As Driver 1 was driving at a slow speed and the fact that the VIC ran out onto the road without failing to check oncoming traffic, no offence was detected from driver.” [sic]
Claimant’s first statement provided to police dated 19 February 2021
19.	The claimant provided a statement to police which is before me as a copy of a police notebook.  The statement reveals that it was given with the assistance of the claimant’s daughter, as the claimant has some difficulty with the English language.  That statement reads as follows:
“…On Tuesday 16th of February 2021 at 9.00pm I was walking along John st, towards Lidcombe station direction.  As I approached Ann St, I stopped on the footpath and waited for cars to drive past.  I checked both directions and when I saw it was clear I walked onto the road and attempted to cross Ann st, onto the other side, close to ‘Sally’s Pharmacy’ side.  Before reaching the other side I saw a white Audi SUV come around the intersection of John and Ann st, driving westerly on to Ann St.
The car was not driving fast, rather taking the corner slowly. 
The car then hit me as I walked across. I don’t remember where exactly on the car I impacted. I felt pain immediately on both legs.  I fell on the road/ground on the impact.  I got up shortly afterwards.  I spoke with the driver of the vehicle and exchanged details, he helped me to cross the road and checked on my welfare.  A passerby who also witnessed the incident also came over to help.  I exchanged details with the witness as well. 
I left the site of the accident and returned home.” [sic]
Claimant’s second statement dated 26 May 2021
20.	The claimant provided a statement to the insurer’s investigators, Brooksight Investigations, on 26 May 2021.  In that statement, the claimant states that prior to the accident she had left her home to walk to “Dooleys Club”.   She did not realise that it was raining until she was outside and so she did not have an umbrella with her.  She recalls wearing black pants. 
21.	She goes on to describe the accident as follows from paragraph 16:
“I was walking by myself along John Street.  I got to the first side street which is Ann Street.  I didn’t pay attention if there were people around me or not. 
I was walking, I stopped at the end of the footpath at Ann Street.  I looked to my right for any cars.  I don’t know how long I stopped for.  There was a parked car on my right so I couldn’t see properly.  I stepped out one or two steps, I don’t know.  I stepped out of the footpath at the ramp.  I was looking to my right.  I saw a car approaching coming from my right.  I waited for that car to pass.  I think it was a passenger car.  I don’t know the colour.  All I know is that after it passed I started walking. 
It was raining so I was walking a bit fast than normal.  I wasn’t walking slowly. 
…
As I was crossing Ann Street and I had reached the middle of the road, I saw a car coming towards me and I stopped.  I saw that the car was turning left from John Street into Ann Street.  I did not see if they had an indicator on or not.  I hesitated for a split second and then it ran into me.  I didn’t know if I should go back or what to do.  That is all I remember…”
22.	The claimant confirmed that there was a witness to the accident.  She told investigators that she did not have his name, but did have his number.  She stated that she would need to ask before providing the number.  As discussed below, the investigators eventually obtained a statement. 
Claimant’s third statement dated 21 March 2022
23.	This statement formed part of an application to admit late documents.  It was explained that the claimant had a change of legal representative at the firm. 
24.	The claimant explains that upon reaching the subject intersection, she stepped out “slightly off the ramp” which links the pavement to the road. 
25.	The rain is described as not so heavy that it obstructed vision. 
26.	It is explained that she stepped out perhaps one step or two, because a parked car was partially obstructing her view down Ann Street. 
27.	After looking to her right on Ann Street, she saw a sedan approaching from her right and she waited for it to pass. 
28.	Thereafter, she checked her surroundings again and there were no cars coming from her right.  She saw no cars indicating to turn into Ann Street from John Street so she began to cross. 
29.	She states that she was walking at a pace faster than normal because of the rain. 
30.	The claimant states that once she was approximately at the middle of Ann Street she saw the insured’s vehicle approaching her with its indicators on.  She states that this was the first time she saw the car indicate.  
31.	The claimant states she stopped moving as she was afraid that it would collide with her.  Unfortunately, the car is said to have not stopped completely and the front-right portion collided into the left side of her body. 
32.	It is further stated that the claimant did not advise her daughter to tell police that she was not paying attention to the road conditions.  
Statement of the insured driver dated 24 April 2021
33.	Brooksight Investigators obtained a statement of the insured driver, Hui Seok Choi.  He states that he is employed as a bus driver, and drives around 15,000 km a year. 
34.	At the time of the accident he was driving his 2015 Audi Q3 station wagon, and recalls there was heavy rain and was travelling home from work.   He explains that he has lived on Ann Street, Lidcombe for three years and knows John Street and the area very well. 
35.	From paragraph 16 the insured states as follows:
“This area of John Street is the shopping centre and there are street lights.   I slowed to about 10 to 20 kilometres per hour.  I had my left indicator on. 
…
I saw there was a white wagon waiting to turn out of Ann Street onto John Street.  That car was waiting for me to turn into Ann Street.  Just after I turned left into Ann Street and I was alongside the car that was waiting to turn out of Ann Street, a lady ran across the road and she came out from behind the white wagon and she ran into the driver side of my car.  She hit my car around the front bumper.  The car that was on Ann Street was still stopped. 
It was heavy rain and the lady that ran did not have an umbrella.  As soon as the lady ran into my car she fell down.  Her wallet fell into my windscreen wiper and it got stuck in my wiper.  It happened so suddenly.  I saw her same time she hit my car.  I stop my car straight away.  She fell to the ground near my front driver side wheel.  The lady got straight back up in three to five seconds.”
36.	The insured noted that the claimant’s daughter came to the scene.  He was able to understand the conversation between the claimant and her daughter as they spoke Korean, which is also his nationality.  He stated that the claimant declined to have an ambulance or police attend. 
37.	After the accident the insured driver was in contact with the claimant.  The claimant provided updates as to her injuries.  She requested his CTP details which he provided to her.  
38.	The insured states that he attended the NSW Police station in Auburn the day after the accident.  The police officer did not take a report because an ambulance did not attend. 
39.	However, on 19 February 2021 the NSW Police contacted the insured driver and they attended his home and interviewed him and it was recorded on camera.  He has not heard from the police since. 
40.	The insured states his opinion that the accident occurred because the claimant was traversing too quickly because of the rain, and if she had been going slower maybe he could have seen her, or if she had waited for the car to go past.   He states that the claimant should not have crossed from behind the other car. 
41.	The insured driver provided a sketch of the scene depicting a vehicle waiting in Ann Street at the intersection with John Street.  The sketch suggests the claimant walked from behind that vehicle and into the insured vehicle that had turned into Ann Street. 
42.	The sketch provided by the claimant is not particularly divergent with the insured’s, with the point of impact on the roadway being similar.  However, the claimant’s sketch does not depict any other vehicles on the roadway. 
43.	In terms of the damage to the vehicle, the insured driver stated that there was only minor damage.  He did not take photos of his car, however, had not taken the vehicle to a smash repairer due to lack of time.  He confirmed that the damage was still on his car and he had put a new driver side wiper arm on. 
Statement of witness, Jin Seok Kim dated 14 July 2021
44.	Mr Kim recalls that it was raining at the time of the accident, which he described as “just usual rain” and he had to use his umbrella.
45.	He was a pedestrian walking in the opposite direction to the claimant.  He recalls a car parked on Ann Street, facing towards John Street. 
46.	He then goes on to state from paragraph 14 as follows:
“I don’t remember if I had to stop and wait for cars to pass or not.  It was night time and it was a little bit dark.  I don’t remember when I first saw the lady.  What I remember is that I saw a lady running towards me and she didn’t have an umbrella. 
I remember a little while after she passed me I heard like a pop noise behind me.  I looked around and I saw the lady in the middle of the road.  I had already crossed the lane and I was on the footpath.  I didn’t see the moment that the lady was hit by the car, but when I looked around, I saw that the lady was about five metres away from John Street.”  
47.	Whilst the statement refers to a sketch being attached, the report does not include any sketch from Mr Kim. 
Other evidence
48.	The claimant relies upon video footage taken of her “re-enacting” her movements on the subject roadway.  Whilst the video evidence provides a helpful visualisation of the roadway in question, I have not placed any weight on the “re-enactment” given that it does not depict the condition of the roadway at the time of the accident.  For example, the video is taken during the daytime and the layout of vehicles is obviously different than at the time of the accident.  
Submissions
Claimant initial submissions 
49.	It is alleged that the insured driver is wholly at fault for failing to keep a proper lookout for the claimant and failing to exercise reasonable care in the circumstances. 
50.	It is noted the claimant’s version is in contradiction to the insured’s version.  Specifically, it is stated that the claimant checked both directions before crossing Ann Street.  
51.	It is noted that the claimant disputes that she was running across the road. It is submitted that the subject intersection is busy with many vehicles and people crossing the road even on the day of the accident.  It is submitted that in particular, given the weather at the time there was an increased obligation upon the driver to exercise caution. 
52.	The claimant relies upon the case of Warth v Lafsky [2014] NSWCA 94 where McColl Ja said at [56]: 
“Notwithstanding the conclusion in Derrick v Cheung…it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines…” 
53.	Relying on Nominal Defendant v Ross [2014] NSWCA 212, it is submitted that the moral culpability weighs more heavily against a driver than against a pedestrian due to the serious implications of the impact of a failure of a driver could cause injury. 
54.	It is submitted that the claimant lawfully crossed the road, there being no traffic control signals or zebra crossing, and she looked for oncoming traffic before stepping out. 
55.	It is submitted that the sole cause of the accident was the conduct of the insured driver.  It is alleged that he did not abide by the Road Rules, however, what specific Road Rule relied upon is not set out.   
56.	It is submitted that the insured failed to give way to a pedestrian who had already crossed the middle of the road. 
Insurer’s initial submissions dated 11 February 2022 
57.	Referring to the claimant’s statement dated 26 May 2021, the insurer submits that the claimant’s account is significant as the claimant confirms that she did not look to her left for oncoming traffic or hazards before she crossed Ann Street.  This was in circumstances where it was dark, where it was raining and where she had passed behind another vehicle to cross the road as a pedestrian at a running pace. 
58.	On the issue of whether the accident is a “no-fault” accident the insurer refers to the NSW Court of Appeal decision in Axiak v Ingram [2012] NSWCA 311 (Axiak).  It is noted that the court found that where it was held that the phrase “fault of any other person” in section 7A of the Motor Accidents Compensation Act 1999 (comparable to 
s 5.1 in the MAI Act) refers only to tortious conduct of that person and does not include the injured person whose fault, in the form of non-tortious contributory negligence, is excluded from the definition of blameless (or no-fault) motor accidents. 
59.	It is then submitted that the question of whether the accident is a no-fault accident for the purposes of Part 5 of the MAI Act, is whether the accident can be said to have been caused by the fault of the insured driver.   The insurer submits that the accident was not caused by the fault of the insured driver.  In this regard, the following is submitted:
a.	the accident occurred at night in the rain.  The rain was such that Mr Kim used an umbrella and the insured was using his windscreen wipers;
b.	the insured took appropriate precautions by activating his wipers, slowing to 10-20km/h and activated his indicator before entering Ann Street.  It is noted that the claimant confirmed to police that the insured was not driving fast and was taking the corner slowly;
c.	the insured was able to describe the surrounding environment and in particular the white wagon at the intersection in Ann Street. He did not see the claimant until she impacted with his vehicle and therefore given that he was “acutely aware” of his surroundings, it is submitted that the insured driver could not be said to have failed to keep a proper lookout.  Or exercise reasonable, prudent precautions as he turned his vehicle into Ann Street;
d.	the evidence strongly suggests the claimant emerged suddenly and without warning from behind another vehicle at essentially the same time the accident occurred.  This would have prevented the insured from seeing the claimant prior to the accident;
e.	the evidence suggests the claimant ran into the side of the insured vehicle, with the police recording that the claimant struck the front driver’s panel above the tyre;
f.	on the evidence the claimant was running across the road.  It is noted the claimant denies running, however, she does concede that she was walking a bit faster than normal.   The insurer refers to the police commentary that the claimant was running and was in a hurry. It is noted the witness described the claimant as running.  As such there was no reasonable action the driver could have taken to avoid the collision, and
g.	the NSW Police confirm the view that the insured driver’s view was significantly obstructed due to the weather and the vehicle waiting to turn left onto John Street.  
60.	In the case of a finding of a no-fault accident, the insurer notes that in Axiak, the court determined that contributory negligence is to be assessed on the basis of a value judgment of the extent to which an injured person has failed to conform to the standard of care of the reasonable person in their position.  With the court finding at [85]:
“It follows that the concept of “contributory negligence” in [the blameless accident provisions] has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases.  This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety.  The reduction of damages under [the blameless accident provisions] by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.” 
61.	The insurer submits that the claimant departed significantly from the standard of care such that she would be deemed as being mostly at fault for the purposes of s 3.28. 
Claimant’s further submissions dated 4 July 2022
62.	Further submissions allege that there are serious credibility issues with the statement of the insured driver and the witness, Mr Kim.  It is also stated that there are reliability issues with the police report that effects the narrative of how the accident occurred. 
63.	It is submitted that the balance of evidence supports the suggestion that the claimant was not running across the road.  She had also taken precautions against the risk of collision before crossing the street. 
64.	It is suggested that the “real issue” in the case is whether the claimant kept a proper lookout before crossing the road.  It is submitted that the claimant did keep a proper lookout because she waited for a car that was blocking line of sight to pass before crossing.  She also did not see any cars indicating to turn left into Ann Street and she was just past halfway across the road when she was struck. 
65.	It is submitted that the claimant alleges that the insured driver did not indicate before turning into Ann Street. In this regard, it is submitted that the insured’s statement that the white wagon waiting at the intersection in Ann Street was waiting for him to turn into Ann Street.  It is stated that there was “no reason for the white wagon to wait for the insured driver to turn into Ann Street first, when the white wagon itself was intending to turn left onto John Street themselves”.
66.	It is submitted that the only reason the white wagon would have waited was if they were not sure if the insured was going to turn left or keep travelling.   It is then submitted that “the only reason why they would not be sure is if the insured driver did not indicate when he was on John Street”. 
67.	It is stated that the insured may have indicated but not until after he had turned, but “certainly” not before. 
68.	Flowing from this submission is the submission that because the insured did not indicate his intention to turn left the claimant could not have taken precautions against the unidentified harm. 
69.	It is alleged that the insured had trained his attention to the white wagon when turning and was not keeping a proper lookout for pedestrians. 
70.	It is then submitted that the claimant “is likely taller than the height of a standard wagon” and it is unlikely that she would have been completely obscured by the wagon.  It is then submitted that if the claimant could see traffic on John Street, as she states in her statement, then it “stands to reason” that the insured driver should have seen her from John Street. 
71.	It is then submitted that if the insured driver alleges that he could not see the claimant due to line of sight issues, then he should not have driven forward and turned in circumstances where he could not see behind the said wagon. 
72.	It is submitted that the claimant did take precautions against the risk of harm and therefore the finding of 65% contributory negligence is inappropriate in the circumstances. 
73.	It is then submitted, as an alternative, that the accident is a no-fault accident as determined by the insurer, however the percentage of contributory negligence ought to be assessed less than the 65% alleged by the insurer.
74.	The submissions request that I make a finding on contributory negligence “as it would affect the amount of statutory weekly benefits the claimant receives for time lost”.  
75.	The claimant’s submissions note the burden of proof rests with the insurer, and submits that it cannot be found that the claimant was running across the road as the evidence relied upon by the insurer is not reliable.  It is submitted that the only evidence that is reliable is the claimant’s evidence that has been consistent in an assertion that she was not running. 
76.	Dealing with the statement of the insured driver, it is submitted on behalf of the claimant that it is internally inconsistent.  Whilst the insured driver states the claimant was running, he also states that he did not see the claimant until she had collided with his vehicle. 
77.	The submissions claim that the claimant took precautions before she crossed, because she waited until the street was cleared of traffic and “it was safe for her to cross”. 
78.	In respect of the evidence of the witness, Mr Jin Seok Kim, it is submitted on behalf of the claimant that the statement “cannot be relied upon for it is riddled with chronological  inconsistencies”.
79.	Firstly, it is submitted that had the witness been crossing the road concurrently with the claimant but in the opposite direction, then the insured driver would have seen him cross the road and would have had to slow down further or stop to avoid hitting him.  It is noted that there is no mention by the insured as to seeing the witness. 
80.	It is also submitted that the assertion that he had reached the other side of the road when he heard the collision, cannot be accepted.  It is suggested that if he was crossing the road at the same time then he would not have reached the other side of the road and would have directly seen the accident, rather than just hearing it.  
81.	It is therefore submitted that the witness account cannot be relied upon as it is an inaccurate reconstruction of what he thought occurred. 
82.	The submissions also suggest that the police account of events cannot be relied upon, especially in respect of an assertion that the claimant was running. In this regard it is submitted the evidence relied upon is not reliable. 
Insurer’s further submissions dated 1 August 2022
83.	The insurer reiterates the assertion that the case involves a situation where the claimant emerged suddenly from behind a vehicle and at speed.  
84.	It is observed that the claimant has not served any evidence as to her height or the height of the vehicle that was waiting at the intersection on Ann Street.  Accordingly, assertions as to what the insured driver “should” have seen is mere speculation. 
85.	In respect of the claimant’s assertions surrounding the evidence of the witness, 
Mr Kim, it is submitted on behalf of the insurer that there is no inconsistency, and that it is not the evidence of the witness that he crossed the roadway concurrently with the claimant.  It is submitted that the witness clearly states that he observed the claimant running towards him while he was crossing the road, and that sometime after he had crossed the road he heard the collision. 
86.	Further, it is submitted that the insured driver’s lack of mention of Mr Kim is consistent with the insured driver’s vision being obscured due to the time of day, the rainfall, the stationary vehicles parked and the “white wagon”. 
87.	It is submitted that while Mr Kim did not observe the accident, his observations as to the speed of the claimant is consistent with the insured driver’s statement and the NSW Police Report. 
88.	The submissions also refer to the claimant in her statement of 21 March 2022 stating that she did not recall seeing Mr Kim, which is submitted to be consistent with the claimant not keeping a proper lookout. 
89.	Dealing with the claimant’s statement to police dated 19 February 2021, it is noted she stated that she walked onto the road.  It is submitted that:
“contrary to the claimant’s assertion that her initial statement confirms she walked across Ann Street, that statement only references that she walked onto the road, and makes no reference to the speed at which she then attempted to cross Ann Street.” 
90.	It is submitted that notwithstanding the claimant taking issue with the description of “running” in terms of relative causation, her own statement concedes that she was walking a bit faster than normal, and did so during rainfall and emerged from behind another vehicle.
91.	The assertion in the claimant’s further submissions that the insured driver did not indicate his intention to turn left into Ann Street, is entirely disputed by the insurer. 
92.	In this regard, the insured driver’s statement that he slowed down to 10 – 20km/h and indicated left before making the turn.  Further, the claimant made no comment as to the status of the insured driver’s indicator in her initial statement.  In addition, in her statement of 26 May 2021 it is noted that she stated “I did not see if they had an indicator on or not” when referencing the insured vehicle”.   It is noted that this is contrary to the claimant’s further statement of 21 March 2022 provided more than 12 months post accident.  Accordingly, it is submitted that the claimant failed to keep a proper lookout.  
93.	It is then submitted:
“In circumstances where the claimant did not see or could not confirm the intentions of the insured driver, the insurer submits that the claimant was negligent in her decision to nevertheless cross the road when she did, and that this decision constituted a blatant disregard for her own safety.” 
94.	It is then submitted that at its highest the evidence supports a view that the claimant assumed that there were no vehicles to her left and then proceeded to cross the road. 
95.	Referencing the inconsistency between the claimant’s earlier statements and her most recent statement of 21 March 2022, the insurer submits that her evidence is unreliable.  Accordingly, it is submitted that I ought to carefully consider the weight that should be afforded to the claimant’s revised evidence. 
96.	In respect to the claimant’s further submissions that suggest that the only reason the white wagon would have waited is if they were not sure the insured driver was going to turn left into Ann Street, the insurer disputes such assertion.  It is noted the claimant has not sourced a statement from the driver of the “white wagon”.   It is submitted that the parties do not know and cannot speculate as to the reason the vehicle was stopped at the intersection. 
97.	The insurer submits that the evidence contained within the insured driver’s version and the police report that the claimant collided with the driver’s side of the insured vehicle, strongly supports a finding that it was the claimant who ran into the side of the vehicle.   This suggests that the claimant failed to keep a proper lookout given that the evidence supports the claimant failing to observe the insured vehicle throughout the entirety of its turn into Ann Street. 
98.	The insurer rejects the claimant’s submission that the insured should not have proceeded when he was not able to see behind the “white wagon”.  The insurer notes that the number of blind spots experienced by a driver on a roadway at any given time are innumerable and ever-changing.   Acceptance of the claimant’s submission in this regard would amount to the prevention of free flowing traffic. 
Reasons
99.	In making my determination I have not given any weight to the summary/narration of the accident as contained within the NSW Police report.  The police did not witness the accident, and their account as expressed in the report is based on the evidence they gathered.  Their findings/opinions are not a first hand account of the circumstances of the accident.  Furthermore, I see no evidence that the claimant admitted to police that she was in a hurry and ran across the road without checking for traffic.  Whilst the report suggests the claimant made such admissions, the notebook statement before me of the claimant does not correspond with such assertions. 
100.	Whilst the NSW Police concluded the claimant to be at fault, such finding by the police has not factored into my reasoning when making my determination. 
101.	However, I do consider the primary evidence obtained by police, by way of notebook statement of the claimant to be relevant and important evidence.  I have thus taken same into consideration when making my determination. 
Did the insured vehicle indicate his intention to turn left?
102.	The claimant contends in the most recent submissions lodged on her behalf, that the insured driver did not turn on his indicator before turning left into Ann Street.   This is said to correspond with the claimant’s most recent statement dated 21 March 2022. 
103.	I accept the insurer’s submission that this submission and the most recent statement does not correspond with the claimant’s earlier evidence.  There was no mention of the insured not appropriately indicating his turn in the claimant’s earlier statements.  Further, the most recent statement includes the claimant confirming that the indicator was on.  She, however, then states that it was the first time that she saw the vehicle indicating.  However, the statement also does not confirm whether the claimant had noticed the vehicle at any point prior.  
104.	This is to be contrasted with her statement provided to investigators dated 
26 May 2021 that specifically states that she did not notice if the indicator was on or not.  Accordingly, I do not consider the claimant’s most recent assertions in respect of the insured’s indicator as credible. 
105.	The most recent submissions of the claimant allege that the insured “certainly” did not indicate his intention to turn prior to turning.  Such an assertion is made on no credible evidence. 
106.	Further, the claimant submits that the “only reason” the driver of the white wagon was stationary at the intersection is because they expected the insured to continue along John Street.   I do not accept this submission.  The state of mind of the driver of the white wagon is not known and any submissions on same is merely speculation.  
I therefore do not accept such submission. 
107.	I accept the insured driver’s evidence as being truthful that he indicated his intention to turn left prior to him beginning the manoeuvre. 
Was the claimant running? 
108.	The claimant herself has confirmed that she was travelling at a pace that was faster than normal. 
109.	I largely accept the submission advanced on behalf of the claimant that the insured driver’s contention that she was running may not be reliable given that he suggests the first time he noticed the claimant was once the collision occurred.  
110.	In respect of the witness’ evidence of Mr Kim, I accept his description of the claimant’s pace as “running”.
111.	I have considered the submission on behalf of the claimant that the witness evidence on the issue of the claimant’s pace cannot be accepted.   It is suggested that the witness could not have been crossing the road in the manner suggested, as if he was crossing the road at the same time then he would not have reached the other side of the road and would have directly seen the accident, rather than just hearing it.
112.	I do not accept this as being a fact.  The evidence of the witness does not specify exactly where he was on Ann Street when he noticed the claimant running.  He may have been well through his journey on Ann Street when he noticed the claimant crossing the opposite direction.  It would therefore be consistent that he had reached the pavement by the time he heard the collision. I therefore do not accept the claimant’s submission. 
113.	Accordingly, I do not accept the submission that the witness evidence is unreliable because it is “riddled with chronological inconsistencies”.  The evidence does not reasonably support such a view.  
114.	I am persuaded by the witness’ evidence that the claimant was running prior to the collision occurring. 
Where was the impact on the insured’s vehicle?
115.	The claimant contends in her most recent statement that the front right portion of the insured vehicle collided with her. 
116.	Conversely, the insured driver states that the claimant ran into the driver’s side of his car.  Such version is also recorded in the NSW Police material. 
117.	The report of Brooksight Investigations dated 28 June 2021 includes a number of photographs of the insured vehicle.  These include a number of photographs of some minor damage to the driver’s side panel by way of the lower black panel of the body having separated from the white front bar. 
118.	Having regard to the photographs of the insured vehicle, depicting damage to the front driver side panel of the vehicle I am persuaded that is likely on the balance of probabilities that the impact is as alleged by the insured.  In this regard, the photographic evidence is consistent with the insured driver’s version of events. 
119.	Whilst the claimant alleges the impact was to the front of the insured vehicle, the photographs do not depict any damage to the front of the vehicle.  In the absence of any other corroborating evidence I do not accept the claimant’s account in this regard. 
Findings 
120.	It is uncontroversial that the accident happened at night time.  It is agreed that it was raining.  Whilst there is some conjecture as to how heavy the rain was, it was heavy enough that people were utilising umbrellas. 
121.	There is no suggestion within the material that the white wagon described by the insured was not positioned as described.  Indeed, the claimant’s most recent submissions includes an assumption that the white wagon was positioned as described by the claimant. 
122.	The claimant’s most recent submissions assert that the claimant was likely taller than the white wagon and therefore would be visible.  There is no evidence upon which to base such submission. I therefore do not accept such allegation. 
123.	It follows that I accept that the claimant’s presence was obscured by the white wagon.
124.	As set out above, I have made the following findings of fact:
a.	the claimant was running when the accident occurred; 
b.	the insured driver had appropriately indicated his turn left;
c.	the claimant ran into the driver’s side of the insured vehicle;
d.	the claimant traversed behind the white wagon, obscuring the insured driver’s view, and
e.	the insured driver did not have reasonable opportunity to avoid the accident. 
125.	Consequently, I find that the insured driver was not at fault.  Accordingly, the accident falls within the definition of no-fault accident contained in s 5.1 of the MAI Act.  In this regard, I refer to the decision of Axiak that establishes that the claimant pedestrian is not taken into account for the purposes of the phrase: “the fault of any other person”.  
126.	Whilst the claimant advances an argument that the insured had an increased obligation to take caution due to him driving a vehicle as opposed to the claimant being a pedestrian, I do not find that his actions negligently contributed to the accident.  I find that he took all reasonable precautions.  Whilst the claimant submits the insured should have waited until the white wagon had left Ann Street, I do not find this to be a plausible argument.  I accept the insurer’s submission that if such an obligation was placed on a driver in the position of the insured it would prevent the free flow of traffic.  
127.	In terms of contributory negligence, on the basis of the above findings of fact I am satisfied that the claimant did not exercise reasonable care for her own safety.  
128.	The claimant submits that she took all reasonable actions because she looked both ways.  I do not accept such allegation.  If the claimant had kept a proper lookout she firstly, would have waited until the white wagon had moved, so that a proper view of the roadway was possible.  Alternatively, after having crossed behind the white wagon, a reasonable person would have slowed sufficiently so as to ensure no oncoming vehicles were present before venturing past the white wagon.  
129.	On the basis that the claimant failed to take reasonable precautions for her safety.  Namely, by waiting until the white wagon had left the roadway to enable a clear view of oncoming vehicles, and traversing at a walking pace, I make a finding of contributory negligence of 70%. 
130.	It follows, therefore, that my findings are as follows:
(a)	the accident is a no-fault accident for the purposes of Part 5 of the MAI Act; 
(b)	for the purposes of s 3.11 of the MAI Ac the motor accident was not caused by the fault of another person, and
(c)	for the purposes of s 3.28 of the MAI Act the claimant was caused mostly by the fault of the injured person. 
Costs and Disbursements
131.	I do not have submissions from either party as to costs. 
132.	Whilst I have found against the claimant, that itself does not prevent me from awarding legal costs in favour of the claimant. 
133.	As regulated miscellaneous claims assessment matters under Schedule 1, cls93)(2)(d), (e)&(g2) of the Regulation, legal costs may be awarded for the subject disputes. 
134.	Schedule 1cl(3)(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units.  The current value of a monetary unit is $106.89.
135.	There are three disputes before me which arguably each attract a maximum amount of $1,710 plus GST. 
136.	However, each dispute involved essentially the same argument(s) made by the claimant.  
137.	Using my skill and experience, and noting that I have found against the claimant I award a total of $1,000 plus GST for the legal services provided to the claimant in respect of the matters determined by me.
Conclusion
My determination of the Miscellaneous Claims Assessment matters is as follows:
138.	For the purposes of Part 5 of the MAI Act the motor accident is a no-fault motor accident. 
139.	For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 
140.	For the purposes of s3.28 the motor accident was caused mostly by the fault of the injured person. 
141.	Effective Date: This determination takes effect on 16 August 2021. 
142.	Legal costs: the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,000 plus GST. 
Legislation
143.	In making my decision I have considered the following legislation and guidelines:
•	MAI Act;
•	The Regulation, and 
•	The Civil Liability Act 2001