In 2021 there were several interesting CTP cases in the NSW and ACT jurisdictions and here four are selected covering procedure, negligence, contributory negligence, and causation.
The case of Wahhab v Insurance Australia highlighted the importance of statutory compliance and a deemed withdrawal of a claim. The cases of Itskos v The Nominal Defendant and Yebdoo v Holmewood involved motorcycle accidents and the issue of contributory negligence, with the latter case proceeding to an unsuccessful appeal in the NSW Court of Appeal. Issues of intoxication and contributory negligence were also explored in the ACT case of Benning v Richardson.
Wahhab v Insurance Australia Ltd [2021] NSWSC 521
Background
This decision is relevant to deemed withdrawal of CTP claims if the claimant fails to answer requests for particulars. Whilst this decision considered the Motor Accidents Compensation Act 1999 (NSW) (MACA) it is relevant to the similar process under the Motor Accident Injuries Act 2017 (NSW) (MAIA) (see section 6.26).
The plaintiff alleged injuries as a result of a motor vehicle accident on 26 March 2016 and claimed damages under the MACA. As required under section 72 MACA, the plaintiff’s solicitors served a claim form on the defendant’s CTP insurer within six months of the date of the accident. Within a week after the claim was made, the insurer wrote to the plaintiff’s solicitors requesting particulars under section 85A MACA. Between 1 December 2016 and 18 June 2018, seven letters were sent by the insurer to the plaintiff’s solicitors seeking a response to the request for particulars.
On 28 September 2018 (more than 2.5 years after the accident), the insurer sent a final letter noting that a failure to provide all relevant particulars within three months would lead to the claim being deemed to have been withdrawn as prescribed under section 85B MACA. By 28 December 2018, there was still no response and therefore the claim was deemed to have been withdrawn.
On 21 March 2019, the plaintiff made an application to the State Insurance Regulatory Authority (SIRA). On 3 July 2019 this application was rejected on the basis that the claimant had not provided a full and satisfactory explanation for the failure to provide the particulars within the timeframe. On 12 July 2019, the plaintiff’s solicitors wrote to the insurer’s solicitors stating that they were instructed to “re-lodge” the claim form.
On 12 November 2019, the plaintiff lodged an application with SIRA to refer his claim for general assessment. This was rejected on the basis that there was no claim to be assessed. On 5 March 2020, the plaintiff made a further application for a general assessment. This was also rejected by the Principal Claims Assessor on 11 August 2020 who affirmed the earlier rejection on the basis that there was no claim to be assessed and therefore no referral required.
On 4 November 2020, the plaintiff commenced proceedings in the Supreme Court of NSW seeking an order quashing the decision of the Principal Claims Assessor.
Decision
The matter was heard before His Honour Basten J. The plaintiff submitted that the language of deemed withdrawal under MACA involved no element of finality and sought to differentiate between a determination or dismissal. Despite the statutory deemed withdrawal, the plaintiff effectively sought to argue that there was still an existing claim that ought to be determined on its merits. His Honour rejected this argument and observed [21] that “[t]he plaintiff’s case thus required that all prior non-compliance with the Act be disregarded. To imply the availability of such a course would be to subvert the scheme of the legislation and cannot be accepted.”
The Court held that the meaning of s85B MACA is clear: if a claim is withdrawn, there is no extant claim. Therefore, there is no claim which can be referred by either party for assessment. Accordingly, the Principal Claims Assessor has no obligation, or power, to make arrangements for an assessment.
The proceedings were dismissed. There is provision in MACA (and MAIA) for claimants whose claims are deemed withdrawn to seek to reinstate the claim.
Itskos v The Nominal Defendant [2021] NSWDC 244
Background
An interesting case on liability of the Nominal Defendant and contributory negligence, relevant to not just MACA but MAIA claims.
The plaintiff claimed damages under the MACA for injuries he allegedly sustained in a motor vehicle accident on 18 January 2015. The plaintiff was riding his motorcycle in a two-lane road when he claimed that he was struck by an oncoming unidentified vehicle which crossed onto his side of the road. The collision caused the plaintiff to lose control of his motorcycle and sustain injuries to his left hand and right foot.
Since the accident involved an unidentified vehicle, the claim was made against the Nominal Defendant (ND). The ND did not dispute that the plaintiff sustained injuries when he came off his motorcycle but denied that the accident was caused by an oncoming vehicle. Alternatively, the ND argued contributory negligence for failing to keep a proper lookout.
The plaintiff was the only eyewitness. Both parties engaged expert witnesses in accident reconstruction and biomechanics. The amount of damages was agreed and therefore the only issue for determination is whether the plaintiff’s injuries were caused by the negligence of another driver.
Decision
His Honour Judge Smith SC found the plaintiff to be an honest and credible witness. He was consistent in giving evidence that was supported by contemporaneous records including the ambulance records and Campbelltown Hospital notes. His Honour also considered aspects of the expert evidence including the exact location of where the accident occurred, the plaintiff’s likely speed at the time of the collision, and the biomechanics of the right foot injury and markings on the motorcycle.
Judge Smith SC was satisfied that the evidence established that an unidentified oncoming vehicle was negligent and caused the plaintiff to lose control of his motorcycle and suffer injuries. However, His Honour also noted that as the plaintiff had gone through the bend when he collided with the oncoming vehicle, he was still in a position to see the vehicle and take evasive action. The plaintiff’s failure to keep a proper lookout contributed to his injuries, but since he was on the correct side of the road and traveling at a safe speed, the contribution was relatively minor. His Honour assessed contributory negligence at 10%.
After deducting 10% for contributory negligence on the agreed quantum, the plaintiff was awarded damages of $585,000.
Yebdoo v Holmewood [2021] NSWCA 119
Background
This matter when you begin to read it suggests that the claimant might be expected to be the motorcyclist Mr Holmewood but no. Again under MACA it has relevance to MAIA claims regarding the test of causation applied including to pure mental harm claims and the necessary standard of expert evidence.
On 1 June 2017, Ms Amina Yebdoo was driving her SUV vehicle in fine weather conditions in lane 2 (lane near the centre of the road) on Punchbowl Road, Punchbowl when the car in front of her stopped and indicated to turn right into a street. Ms Yebdoo stopped her vehicle behind as she thought that it would be difficult to manoeuvre her vehicle into lane 1 as there were parked cars in it. Although Ms Yebdoo was aware of the presence of Mr Holmewood on a motorcycle several vehicles behind her, she assumed that he would not be able to pass through the gap between the parked cars.
After being stopped for approximately 10 to 20 seconds, Ms Yebdoo commenced to turn her vehicle into lane 1 to go around the vehicle in front. Upon doing so, Ms Yebdoo collided with the motorcycle ridden by Mr Holmewood who was riding behind on Mr Yebdoo’s passenger side at approximately 15km/h.
Mr Holmewood was thrown off his bike onto the bonnet of the SUV and then onto the roadway in front of the car. Being unaware of where Mr Holmewood was on the road, Ms Yebdoo accidently drove over part of his body.
Mr Holmewood was severely injured in the accident and Ms Yebdoo suffered mental trauma as a result of her concern for Mr Holmewood and her belief, for a brief time, that he was dead.
Ms Yebdoo claimed that Mr Holmewood was at fault for causing the accident and brought a claim in the District Court for damages for personal injury for pure nervous shock pursuant to the provisions of MACA.
Decision at trial
At trial, His Honour Judge Montgomery determined that Ms Yebdoo did not keep a proper lookout as there was no evidence that she looked over her shoulder at a point when her mirrors did not give her sight of what was behind. While Ms Yebdoo was aware of the presence of Mr Holmewood a few vehicles behind, Ms Yebdoo’s assumption that the motorcycle would not proceed in lane 1 because of the narrowness of the passage was not the assumption a prudent driver in her position would make.
In relation to Mr Holmewood’s culpability, it was determined that had he maintained a reasonable lookout and responded reasonably with active braking, he would have slowed the motorcycle to achieve a low speed. Critically, Montgomery DCJ was unable on the evidence to find it likely that Mr Holmewood would have stopped had he maintained a proper lookout. To that end, it was determined that the evidence of time and distance was too imprecise and the assessment of deceleration lacked the required expert opinion to find that Mr Holmewood’s breach of care was causative of the subject collision.
As Ms Yebdoo failed to establish causation of the accident and subsequent injury, Montgomery DCJ dismissed Ms Yebdoo’s claim and directed the entry of Judgment for Mr Holmewood with Ms Yebdoo to pay Mr Holmewood’s costs.
In the alternative, had causation of injury been established, it was determined that Ms Yebdoo’s apportionment of liability for causing the accident was 60% with Mr Holmewood’s share being 40%.
Ms Yebdoo appealed to the Court of Appeal.
Decision on appeal
The appeal was dismissed by the Court of Appeal:
- Mr Holmewood’s failure to keep a proper lookout and slow his speed in a timely fashion constituted a breach of his duty of care.
- No attempt was made to estimate what minimum speed would have sufficed to propel Mr Holmewood across Ms Yebdoo’s bonnet – this was a necessary consideration to cause Ms Yebdoo’s mental trauma.
- Due to the imprecision of the evidence of time and distance and the lack of relevant expert evidence, Ms Yebdoo failed to establish that any breach of duty by Mr Holmewood caused the forceful collision that resulted in Ms Yebdoo’s injury.
Benning v Richardson [2021] ACTSC 34
Background
The last claim in this brief review of 2021 cases is not just a salutary reminder of the dangers of alcohol consumption and driving a motor vehicle but the contributory negligence that can follow for passengers, here relating to both alcohol and seatbelts.
On 1 February 2014, Ms Benning (the plaintiff) was out drinking at the Lighthouse Pub in Belconnen (the pub) with several friends, including Mr Richardson (the defendant). The plaintiff had been drinking with the defendant through the night. Although the plaintiff was uncertain how many alcoholic drinks she had consumed whilst at the pub, it was clear both from the subsequent blood analysis and from the CCTV footage of the group leaving the pub that the plaintiff was well under the influence of alcohol when departing.
The group left the pub at about 1:30am. Although they had previously planned to return home by taxi, this was abandoned despite the ready availability of taxis at the pub. Instead, the group decided to drive home with the defendant as driver of the vehicle – who later tested (two hours after the accident) with a blood alcohol reading of about 0.190 grams per 100ml of blood. the plaintiff was the front seat passenger and 2 friends were in the rear seats. The plaintiff had no memory of entering the vehicle and could not remember if she had fastened her seatbelt.
Whilst driving at around 65km/h, the defendant veered to the left, lost control of the vehicle off the roadway and hit a tree. Upon impact, the plaintiff struck the windscreen with her face and likely her left shoulder in addition to sustaining serious injuries to her ankles. The plaintiff’s friend who was travelling in the back seat died in the accident.
The defendant later asserted that the plaintiff had interfered with the control of the vehicle by taking hold of the steering wheel and ‘ripping’ it out of his hands.
The defendant was charged with the offences of driving causing death and causing grievous bodily harm – the latter offence related specifically to the plaintiff. The defendant was convicted of both counts in March 2016. A later appeal failed.
The plaintiff sued the defendant in the Supreme Court of the Australian Capital Territory for personal injury.
Decision
At trial, Justice Elkaim SC (some will recall that His Honour was formerly a Judge of the District Court of NSW) accepted that the plaintiff was not wearing a seatbelt when the collision occurred and that she may have been in such a condition that she may not have considered wearing the seatbelt.
Elkaim J otherwise found the defendant to be a “most unimpressive witness” and ultimately rejected the defendant’s assertion that the plaintiff had interfered with the control of the vehicle by grabbing the steering wheel.
Whilst there was no expert evidence on the consequential injuries of not wearing a seatbelt, it was determined that if the plaintiff had not struck the windscreen, there would not have been an injury to the parts of her body that met the windscreen (head and facial injuries) and her shoulder injuries may also have been less severe. However, there was no evidence to suggest that the injury to her ankles would have been any different had she been wearing a seatbelt. On this basis, the latter injury was not factored into the assessment of contributory negligence arising from the failure to wear a seatbelt.
As for the decision to enter the vehicle with an intoxicated driver, the plaintiff initially argued that contributory negligence should not apply as she was so drunk that she could not appreciate the danger. However, it was ultimately agreed that this was not a viable argument – the test of Joslyn v Berryman [2003] HCA 34 was applied which requires an assessment of whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication.
Having regard to this test, it was determined that the plaintiff, as a reasonable person, would have foreseen that, entering as a passenger in a car driven by the intoxicated defendant, would expose her to a risk of serious injury.
As such, there were effectively two distinct acts of contributory negligence (failure to wear a seatbelt and being a passenger in a vehicle driven by an intoxicated driver). Otherwise, it was determined that the plaintiff’s most enduring and lifelong injuries were to her ankles were not relevant to her not wearing a seatbelt but did play a part in her getting into the vehicle with an intoxicated driver.
Elkaim J combined the two acts in arriving at an overall percentage of contributory negligence of 35%.
