Background

On 5 March 2021, Shubeccha Shuk (‘the claimant’) was injured in a motor vehicle accident whilst attempting to cross Smith Street, Parramatta.

A dispute arose as to liability for statutory payments beyond 26 weeks, as the plaintiff (‘insurer’) contended the claimant’s contributory negligence was greater than 61%. By certificate dated 21 December 2022, Member Nolan determined the accident was not caused mostly by the fault of the claimant and assessed the claimant’s contributory negligence at 25%.

The insurer filed a Summons in the Supreme Court of New South Wales seeking an order in the nature of certiorari or a declaration to set aside the decision on the grounds of:

1. error of law on the face of the record;
2. no evidence;
3. unreasonable determination

The matter proceeded to hearing before Basten AJ on 6 July 2023 and judgment was delivered on 7 July 2023.

The facts

On 5 March 2021 at around 2.45 pm the claimant alighted from a bus on Smith Street, Parramatta. The claimant walked to the rear of the bus, turned left and stepped off the kerb, onto the roadway and crossed a bus parking lane before entering the near side lane where a collision occurred with the insured vehicle.

The incident was captured by CCTV footage which shows the insured vehicle to be braking vigorously and coming to a stop on the claimant’s foot.

Error of law on the face of the record

The insurer asserted the Member’s reasons revealed legal error in the approach adopted in each aspect of the assessment and in the comparison of culpability.

Basten AJ noted the Member found that the insured driver’s speed was inappropriate to avoid the foreseeable loss of pedestrians. However, Basten AJ observed that at no point did the Member identify what the maximum speed for safe driving in the area was. Before the Member concluded the driver should have been going at a speed which would have allowed her to avoid hitting the claimant, the Member needed to ask:

1. at what distance the driver should have seen the claimant;
2. at what speed would she necessarily have been travelling to avoid hitting the claimant and
3. did reasonable care for other road users require that she not exceed that speed.

Basten AJ concluded the Member fell into error in approaching the driver’s fault by referring to an indeterminate ‘appropriate’ speed, and not answering the above questions. Without a proper finding as to breach of duty, proportionate culpability could not be assessed.

Basten AJ noted there was ambiguity as to when the claimant observed the insured vehicle. Further, even if the driver had seen the claimant at the time the claimant allegedly saw the vehicle, it did not follow that the driver was required to assume the claimant would walk across the road in front of her.

With respect to the culpability of the claimant, His Honour noted if the claimant did not see the vehicle, it was because she did not look, which she should have done. If she did see the vehicle, and ignored its approach, this involved a significant level of culpability.

In assessing the comparative liability, the Member stated:

‘In the category of a motor accident case where a vehicle strikes a pedestrian, almost inevitably, the insured driver’s responsibility will be treated as more significant than a pedestrian’s failure to keep a lookout, because of the (driver’s) potential to do great harm: see Anikin v Sierra’.

Basten AJ stated the principle to be derived from Anikin was not that the driver’s level of culpability will, almost inevitably, be greater than that of the pedestrian, but that each case must be assessed according to its own circumstances and, in some circumstances the driver may bear no responsibility at all.

Basten AJ found the Member erred in applying the former principles which weighed in favour of the claimant, irrespective of the circumstances of the case, thereby falling into legal error.

No evidence

Basten AJ stated that for a no evidence finding to support the quashing of a decision, the fact must be material to the outcome. He did not accept that the finding made by the Member that the insured driver accelerated was material.

Unreasonableness of the decision

In relation to the finding of contributory negligence, Basten AJ observed that in applying the correct principles, a finding of 25% contributory negligence was well below the bottom of any range reasonably available to the Member. His Honour stated:

‘…it might be contended that the Member’s finding was explicable on the basis of the principles of law which she applied. Where those principles have been found to involve legal error on the face of the record, it is neither necessary nor helpful to explore the basis of the further ground’.

Decision

Basten AJ determined that due to the errors of law identified, the decision of the Commission must be set aside and made the following orders:

1. Set aside the decision of the Member of the Personal Injury Commission dated 21 December 2022 in the matter No. M10472665/21 and set aside the certificate issued under s7.36(4) of the Motor Accident Injuries Act 2017 with respect to the decision.
2. Remit the miscellaneous claims assessment to the Commission for reconsideration by the Commission constituted by a different Member.

Implications

The decision illustrates that in some circumstances, where a Commission Member’s discretion as to apportionment of culpability for an accident miscarries, that will constitute an error of law on the face of the record susceptible of judicial review. The reasons also provide a useful reminder of the principles to be applied in assessing contributory negligence – relative culpability being the touchstone. Sufficient factual findings need to be made to permit that comparison of blameworthiness, and where that has not occurred, reviewable error will exist. 

Further information / assistance regarding the issues raised in this article is available from the authors, Frances Allen, Partner and Johanna Ellem, Lawyer or your usual contact at Moray & Agnew.