[1990] HCA 41
Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236
Dominello v Dominello & Anor
Source
Original judgment source is linked above.
Catchwords
[1966] HCA 70
Astley v Austrust Limited (1999) 197 CLR 1[1999] HCA 6
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[1990] HCA 33
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249[1990] HCA 41
Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236
Dominello v Dominello & AnorDominello v The Nominal Defendant & Anor [2009] NSWCA 95
Dowling v Bowie (1952) 86 CLR 136[1952] HCA 63
Dranichnikov v Minister for Immigration and Multicultural Indigenous Affairs [2003] HCA 26(2003) 77 ALJR 1088
Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8
Kroon v R (1990) 55 SASR 476
Leishman v Thomas (1957) 75 WN(NSW) 173
Luxton v Vines (1952) 85 CLR 352[2000] HCA 18
Strong v Woolworths Limited & Anor (2012) 246 CLR 182[2012] HCA 5
Swain v Waverley Municipal Council (2005) 220 CLR 517
[2005] HCA 4
Verryt v Schoupp [2015] NSWCA 128
Vines v Djordjevitch (1955) 91 CLR 512
[1955] HCA 19
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Judgment (20 paragraphs)
[1]
pal Council (2005) 220 CLR 517; [2005] HCA 4
Verryt v Schoupp [2015] NSWCA 128
Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category: Principal judgment
Parties: Insurance Australia Limited t/as NRMA (Plaintiff)
Ms Wendy Richards (First Defendant)
Bridie Nolan in their capacity as a Member appointed by the Minister under s 9 of the Personal Injury Commission Act (Second Defendant)
The President, Personal Injury Commission (Third Defendant)
Representation: Counsel:
Mr M Robinson SC (Plaintiff)
Ms J Gumbert (Plaintiff)
Mr C Barry KC (First Defendant)
Mr J Hallion (First Defendant)
Submitting Appearance (Second & Third Defendants)
[2]
Solicitors:
Sparke Helmore (Plaintiff)
Owen Hodge Lawyers (First Defendant)
Crown Solicitor's Office (Second & Third Defendants)
File Number(s): 2022/167811
Decision under appeal Court or tribunal: Personal Injury Commission of New South Wales
Citation: [2022] NSWPIC 721
Date of Decision: 14 December 2022
Before: Bridie Nolan
File Number(s): APP-10385272
[3]
JUDGMENT
In July 2020 at about 7.25 pm Ms Richards was injured in a motor vehicle accident of which she has no memory, which occurred in a semi-rural area at Dural. There was no issue that this was a head on collision, her vehicle crossing the centre lines of the road and colliding with another vehicle being driven in the opposite direction. She later pursued statutory benefits under the Motor Accident Injuries Act 2017 (NSW) which were then available for a 26 week period irrespective of fault for the accident, but afterwards only in specified circumstances.
Ms Richards' entitlement to benefits for the first 26 weeks was accepted by the insurer in July 2020, but in October it advised her that it had made a decision, declining any entitlement to benefits after 26 weeks: s 6.19. That was because it had concluded, after investigation, that she was wholly at fault for the accident and injuries which she had suffered.
The insurer's investigation of the cause of the accident had been pursued in a context where Ms Richards had said in her application for benefits, that she was unsure about its cause.
Ms Richards challenged the insurer's decision, with the result that the insurer conducted an internal review of its decision, to which it adhered: s 7.9. Ms Richards then applied to the Personal Injury Commission for a miscellaneous claims assessment of her claim for continued statutory benefits after 26 weeks: s 7.42.
After a two-day hearing before member Nolan, at which the parties were legally represented and oral and documentary evidence was led, Ms Richards was found to be entitled to statutory benefits after 26 weeks. Having pursued the unchallenged view on which the Commission acts in resolving such disputes, that the onus fell on the insurer to establish that Ms Richards had no entitlement to the continued payment she claimed, the member concluded that the accident was not caused wholly or mostly by fault on the part of Ms Richards. They were the criteria on which Ms Richards' entitlement to statutory benefits after 26 weeks depended under both ss 3.11 and 3.28.
The required certificate and accompanying reasons were issued by the member in December 2022 as s 7.36 required: Richards v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 721.
It was also not finally in issue in these proceedings that the insurer had no right to seek a review of this decision under the statutory scheme. It contends that there was an error of law on the face of the record and jurisdictional error warranting that the Commission's certificate be set aside: s 69 of the Supreme Court Act 1970 (NSW) and Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [27]. Further, that there had been a constructive failure to exercise jurisdiction: Rodger v De Gelder [2015] NSWCA 211 at [95].
That is disputed by Ms Richards.
Both the President of the Commission and the member have filed submitting appearances.
[4]
The challenged certificate
In the certificate issued under subs 7.36(4) of the Motor Accident Injuries Act the member indicated that the findings of the assessment of the parties' dispute were:
"For the purposes of s 3.11 the motor accident was not caused by the fault of the claimant or another person and the insurer may not rely on this section to reduce the payment of statutory benefits after 26 weeks.
For the purposes of s 3.28 the motor accident was not caused mostly by the fault of the injured person."
[5]
Issues
In issue between the parties is whether the member erred in relation to:
1. on whom the burden of proof fell when entitlements under ss 3.11 and 3.28 of the Motor Accident Injuries Act are pursued before the Commission;
2. the operation of the doctrine of res ipsa loquiter, on which the insurer unsuccessfully relied in advancing its case before the Commission;
3. inferences the member drew about the cause of the accident, which the insurer claims were impermissible, there being no evidence supporting them; and
4. failing to draw inferences which the evidence required.
[6]
Should the judicial review application be entertained?
There was no issue about the Court's discretion to refuse to entertain an application for judicial review in an appropriate case, including where other relief is available: Dranichnikov v Minister for Immigration and Multicultural Indigenous Affairs [2003] HCA 26 at [33]; (2003) 77 ALJR 1088.
But that this was not such a case was finally conceded by Ms Richards. The reasons which follow explain why I agree.
[7]
The burden of proof
For the following reasons, I am also satisfied that member Nolan correctly approached the question of burden of proof.
This statutory scheme provides for a system of no-fault benefits following a motor vehicle accident. At the relevant time such benefits were provided for 26 weeks, while they are now provided for 52. It was common ground that this change is not relevant to the issue of the proper construction of ss 3.11 and 3.28 which here arises for determination.
It was also common ground that when hearing disputes about miscellaneous claims of the kind that the member had to consider, the Commission proceeds on the basis that the burden of proof falls on the insurer. That was Ms Richards' submission before the member, which was not challenged by the insurer. Unsurprisingly, there being no issue about this the member observed that the burden of proving that the accident was caused wholly or mostly by Ms Richards' fault, fell on the insurer: at [83].
But in these proceedings the insurer's case is that this reflected an incorrect construction of ss 3.11 and 3.28. That is disputed.
Ordinarily the onus or burden of proof falls on a plaintiff or applicant pursuing a claimed right. But in a statutory scheme that may be altered by the parliament. If not so altered it is when evidence is led which supports the existence of the claimed right, that the evidential burden may shift to the defendant who disputes the existence of that right: Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 at 168 and Strong v Woolworths Limited & Anor (2012) 246 CLR 182; [2012] HCA 5 at [52]-[54] discussed in Commissioner of Police, New South Wales Police Force v Zisopoulos [2020] NSWCA 236 at [93].
The question necessary here to resolve is whether in Commission proceedings where claimed benefits under ss 3.11 and 3.28 are in dispute, the parliament has imposed the burden of proving that an accident was wholly or mostly caused by an injured person on the insurer. That arises to be considered in a context where it is the insurer who has decided that the injured person has no entitlement to statutory benefits after 26 weeks and it is the injured person who is exercising his or her right to challenge that decision.
One reason for not concluding that the onus falls on the insurer in such a case is that the parliament could plainly have said so, but it did not. That is one important consideration, but there are others which point to the parliament still having had such an intention, which must also be taken into account.
[8]
What ss 3.11 and 3.28 provide
There is no question that the construction of ss 3.11 and 3.28 must begin with their terms, considered in their statutory context. They provide:
3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(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%.
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries
(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.
In construing these provisions, the reference in subss 3.11(1)(b) and 3.28 (1)(b) to "minor injuries" must be borne in mind. This is defined in s 1.6 to mean a soft tissue injury or a minor psychological injury or psychiatric injury. A minor psychological or psychiatric injury is defined to mean a psychological or psychiatric injury that is not a recognised psychiatric illness. But regulations may also exclude specific injuries from these definitions. Thus, it is that the right to the benefits provided by ss 3.11 and 3.28 do not depend only on fault.
[9]
Other aspects of the statutory regime
It also needs to be borne in mind that the disputed statutory provisions operate in a context where:
1. the Motor Accidents Injuries Act's specified objects include providing "early and ongoing financial support for persons injured in motor accidents" and to "encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes": subss 1.3(b) and (g);
2. compensation in the case of death or injury from the use or operation of a motor vehicle that results from a motor accident, is limited to accidents for which the vehicle has motor accident insurance cover: s 1.10;
3. statutory benefits are payable by a relevant insurer, whether or not the accident was caused by the fault of the owner or driver of the vehicle in its use or operation, or even if the accident was caused by the fault of the person to whom the statutory benefits are payable, except when otherwise provided: s 3.1;
4. "fault" is defined in s 1.4 to mean "negligence or any other tort";
5. weekly payments for specified periods are provided for "earners" injured as a result of a motor accident who suffer total or partial income loss as a result of the injury, as well as cessation of such payments to injured persons in specified circumstances, including those in s 3.11: Div 3.3;
6. an insurer is required to give specified notice to an injured person before ceasing to make or reducing weekly payments: s 3.19: Div 3.3;
7. statutory benefits are also provided for treatment and care for injured persons, as well as cessation of such benefits in specified circumstances, including those in s 3.28: Div 3.4;
8. there is also provision for other restrictions and limitations on statutory benefits, including those in s 3.38: Div 3.5;
9. "determinations" are made by insurers or the Commission in relation to claims for statutory benefits about fault of the owner or driver in the use or operation of the motor vehicle, contributory negligence and other matters prescribed by regulation, which are not binding in a claim for damages for the same accident: s 3.44: Div 3.6;
10. motor accident claims must be made in accordance with applicable guidelines: Pt 6;
11. duties are imposed on insurers and claimants for dealing with claims: Pt 6, Div 6.4. In the case of insurers, they include a duty to act in good faith in relation to providing claimants with all relevant information relied on to make a decision on a claim and to provide written reasons for all decisions affecting his or her entitlement to statutory benefits: subs 6.3(3);
12. dispute resolution is regulated, including by way of internal reviews of insurers' decisions and applications for and determination of merit reviews of "reviewable decisions"; reviews of merit review decisions; and miscellaneous claims: Pt 7;
13. the issuing of Motor Accident Guidelines: Pt 10, Div 10.2; and
14. burden of proof is expressly dealt with in some other circumstances. In Pt 4 Award of damages, there are deeming provisions and presumptions in relation to no-fault motor accidents, defined in s 5.1 to mean "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". Section 5.3 provides:
5.3 Presumption that motor accident is no-fault
(1) In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.
[10]
Onus in miscellaneous claims assessments matters concerning rights to statutory benefits after 26 weeks falls on the insurer
Construing ss 3.11 and 3.28 in this statutory context, I am satisfied, must lead to the conclusion that when a miscellaneous claims assessment matter concerning an injured person's entitlement to payment of statutory benefits after 26 weeks comes before the Commission for determination, the burden of proving that the motor accident was caused wholly or mostly by the fault of the person, rests on the insurer.
This conclusion accords with the requirement that the insurer not only considers and decides where fault for the accident lies, but notifies the claimant of that decision: s 6.19. It also requires the insurer to provide the claimant with reasons for that decision, as well as the information relied on to make that decision: subs 6.3(3).
Further, if the required notification is not given within nine months, liability is taken to have been accepted by the insurer: subss 6.19(4). Benefits must be paid on acceptance or deemed acceptance, without delay: subs 6.19(6). And liability can be accepted even after denial: subs 6.19(5).
That a claimant must also be given an opportunity to pursue an internal review of an adverse decision, supports this construction of ss 3.11 and 3.28: s 7.9. It is evident that on such a review he or she may provide further information for the insurer to consider, which may lead it to conclude that there is an entitlement to benefits after 26 weeks, because the accident was not caused wholly or mostly by the fault of the person. The claimant must also provide information which the insurer reasonably requires for the review: s 7.9(3).
Subsection 6.3(3) also requires the insurer to provide the claimant with reasons for that further decision, as well as the information relied on to make that decision.
It is in that context that the injured person's right to pursue a miscellaneous claim about entitlements under ss 3.11 or 3.28 before the Commission arises to be considered: s 7.41. The Commission's assessment of such a claim for statutory benefits is binding on the parties to the dispute: subs 7.41(3). If liability is unreasonably denied by an insurer, the Commission may also impose a costs penalty on the insurer: s 6.21.
Consistently with this regime there was no issue that it is the application for statutory benefits that triggers an insurer's investigation into the cause of the accident, that enabling it to come to the decision of which it must notify the injured worker, about entitlements after 26 weeks. This reflects that such a claim may be made by an injured person who can shed no light on the cause of the accident, in this case because she had no memory of it.
[11]
The member's approach to the doctrine of res ipsa loquiter
I have reached a different conclusion in relation to what lies in issue between the parties about the member's approach to this doctrine.
The insurer relied on the res ipsa loquiter doctrine in advancing its case on fault. To understand why the member erred, both the functions which the member was exercising and the extensive reasons given for the conclusion that the insurer had not met the burden which fell upon it, including because this doctrine was not relevant to what was in issue, need to be understood.
[12]
The functions which the assessor was exercising
The objects of the Motor Accident Injuries Act include encouraging "the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes": subs 1.3(2)(g). On the miscellaneous claims assessment, consistently with this object, the guiding principle for the Personal Injury Commission Act 2020 (NSW) and the Personal Injury Commission Rules 2021 (NSW), in their application to proceedings in the Commission, is to facilitate the just, quick, and cost-effective resolution of the real issues in the proceedings: s 42.
Commission proceedings must also be conducted with as little formality and technicality as the proper consideration of the matter permits; it is not bound by the rules of evidence but may inform itself on any matter in the manner it thinks appropriate and as the proper consideration of the matter permits; and it must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 43 of the Personal Injury Commission Act.
The Commission's Rules also regulate the conduct of its proceedings: r 5. Part 4 deals with approved forms, their lodgement, service and amendment. Part 5 provides for the production of documents and the calling of expert and lay witnesses. It requires the lodging and service of written statements of evidence, even when oral evidence is proposed to be called: r 34.
Part 8 regulates the conduct of applicable proceedings and requires decision makers to have regard to the principles to which the member referred, specified in r 73 to be:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.
Part 4 to Personal Injury Commission Act also requires decisions about specified matters, including in relation to motor accidents, to be published: s 58.
There was no suggestion for Ms Richards that under this statutory regime, the res ipsa loquiter doctrine could not be relied on in an appropriate case. It was whether this was such a case which was in issue.
[13]
The reasons given
The member recorded that Ms Richards' application required the determination of two miscellaneous assessment matters under Sch 2, subcll 3(d) and (e) of the Motor Accident Injuries Act. They required determination for the purposes of s 3.11 whether the accident was caused by the fault of another person and, whether for the purposes of s 3.28, the accident was caused mostly by the fault of Ms Richards: Richards at [6].
The member then turned to the evidence, noting that it included the crash details contained in a police report, which included statements made by witnesses including the driver of the other vehicle involved in the crash; the negative results of a blood test; the police's conclusion that Ms Richards had been responsible for the accident; the statement which the driver of the other vehicle had made, that she had sighted Ms Richards' vehicle shortly before impact; what attending police officers observed at the scene, when Ms Richards told them under caution that she could possibly have had a micro sleep as the result of medication, which had that possible side effect and she not having been advised by her doctor not to drive; an eye witness driving behind having observed Ms Richards suddenly pull to the right and the accident then occurring, while she was driving no faster than 60 kmph; and another eye witness, a passenger in a vehicle behind not having observed any unusual behaviour, with Ms Richards driving at normal speed and maintaining a safe distance, but when he looked up from his phone he saw her vehicle spinning.
The member noted that the insurer had considered this information and the duty of a driver to take reasonable care for their safety and that a reasonable person in Ms Richards' position would have exercised reasonable caution in keeping a safe and proper lookout and distance by listening, looking, and observing to take any appropriate steps to correct any changed circumstances, given the foreseeable risk of harm if a safe lookout and safe distance were not kept, so that appropriate steps to correct for changed circumstances could be taken.
The member also noted that the insurer had concluded that Ms Richards' failure to take the required reasonable care was established by it being her who crossed over the roadway lines and collided with oncoming traffic, having more than once stated to police that it was possible that she had had had a micro sleep. That establishing her fault for the accident, by not taking reasonable care for others. It did not find that there had been any contributory negligence by the other driver, concluding that it was Ms Richards who was wholly at fault.
[14]
Why the case advanced for Ms Richards cannot be accepted
In these proceedings Ms Richards contended that there is no doctrine of res ipsa loquitor in Australian law. That must be rejected, given what was decided in Schellenberg and what was said by the Chief Justice in his opening sentence "The principal question in this appeal is whether the plaintiff can rely on the doctrine of res ipsa loquitur to make out a case of negligence in circumstances where …": at [1].
Furthermore, contrary to the case advanced for Ms Richards, consideration of whether there has been error on the face of the record does require account to be taken of the member's reasons for refusing to consider the case the insurer advanced, relying on that doctrine. This reflects the importance of a tribunal's obligation to give reasons, so that whether it has fallen into an error of law can be determined by a court: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]-[55].
The circumstances in which the disputed doctrine can be used were settled in Schellenberg. Res ipsa loquitor is not a distinct, substantive rule of law, but an inferential reasoning process, applied where the plaintiff bears the onus of proof in relation to alleged negligence: at [22]. In this case it was the insurer who had to prove fault, a concept which under this statutory scheme encompasses negligence and so was, accordingly, also entitled to rely on this inferential reasoning process.
While the burden of proof does not alter, the doctrine may permit negligence to be inferred from a fact which is unexplained, in this case, as the member found, what caused Mrs Richards to drive into oncoming traffic as she did. As explained in Schellenberg at [73], when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence. So, it must logically follow, does a car crossing the road and hitting an oncoming vehicle, if unexplained.
Whether negligence is proven in a particular case still, however, depends on how clearly and convincingly the unexplained fact speaks of negligence in the particular circumstances: Anchor Products Limited v Hedges (1966) 115 CLR 493; [1966] HCA 70 at 500. This is what the member had to consider in this case.
The application of the doctrine to circumstantial facts, where direct evidence of negligence is lacking, may call for explanation or rebuttal. But all of the circumstances and evidence must still be taken into account and considered as a whole, when arriving at a conclusion that there was negligence: Schellenberg at [24].
[15]
Inferences
Factual findings must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at 367. As there explained, ordinarily findings of fact, including inferences drawn from primary facts, are not reviewable in proceedings such as this. But they are reviewable when:
a statute requires or authorizes a "decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order": at [322];
an ultimate determination depends upon a finding of fact vitiated by error of law or made without evidence: at [341]; or
inferences drawn are not reasonably open on the facts: at [355]-[356].
[16]
Inferences claimed to be unavailable on the evidence
The insurer's case was that the member's conclusion that there had been no negligence rested on inferences which were not available to be drawn on the evidence and rather involved speculation, based on submissions and assumptions which Ms Richards had advanced, which had no evidentiary basis.
Evidence may certainly establish that someone was not negligent, but forced to act in a sudden crisis or emergency which he or she has not created and where immediate action must be taken, with the result that "in the agony of the moment" an error of judgment is made and a step is taken which would otherwise not have been: Leishman at 175.
But there has to be a factual basis for the conclusion that a person did react to such a crisis or emergency. Such a finding cannot rest simply on a consideration of possibilities, despite those that Ms Richard advanced having included that she must have been forced to react to something in the agony of the moment, given her normal driving habits.
The member explained in her reasons, in considerable detail, the case which Ms Richards had advanced, having no memory of the accident. Necessarily, as the member found, her explanations of what she did rested on possibilities of which there was no direct evidence.
This reflected that in her statement Ms Richards explained that having no recollection of the accident, she had made her statement "based on my knowledge and belief, including matters that have come to my knowledge through my habit and practice correspondence and documents, and enquiries I have made (or caused to be made) from time to time. I have also required the assistance of my legal advisors in order to provide a full account of the conduct, information and contemporaneous belief. Where I have been unable to rely solely on my memory and have used correspondence, documents, or my legal advisors I have tried to identify the source of the information relied upon."
This underscored the problems with drawing inferences which relied on Ms Richards' evidence. Especially when there was other evidence which was inconsistent with at least some of these possibilities, which had to be considered.
Consideration had to be given to what all the reliable evidence established. That included the evidence given by the various witnesses who saw the collision. If their evidence was inconsistent with Mrs Richards being forced to act in a sudden crisis or emergency where she had to take immediate action in reaction to that crisis or emergency, a finding that she had acted in the agony of the moment was not open.
[17]
Other inferences which it is claimed the evidence necessarily required be drawn
In issue is also whether there was legal error in the member failing to draw inferences which the evidence required be drawn. I am not satisfied that the member also fell into such error.
On this application the Court does not sit on appeal from the member's decision. Thus, even though it might have reached a different conclusion on the evidence, that does not provide a basis for the orders sought.
The insurer contended that there was evidence from which it could have been inferred that Ms Richards had veered across the centre lines of the road because she had experienced a micro sleep, given the expert evidence it had led. Ms Richards also gave evidence about the possibility, which she had raised with police, that she had suffered a micro sleep, given the medication she was taking.
The inference that it was a micro sleep that caused the collision was not drawn, the member finding support for the conclusion she arrived at, that this had not been established, in the evidence of witnesses who observed nothing unusual in Ms Richards' driving before the collision.
In these proceedings the insurer contended that there was no evidence from which it could be inferred that a driver would drive erratically during a period of drowsiness, which on the expert evidence usually preceded a micro sleep. On the available evidence the inference that a micro sleep caused the accident should thus have been drawn. That was disputed as not being the only available inference on all of the evidence.
I agree.
The expert was cross-examined. Given all of his evidence, Ms Richards' evidence and that of the witnesses to the collision all had to be taken into account, because their evidence may or may not have been consistent with Ms Richards having had a micro sleep.
The conclusion that the member erred in her approach to considering all that evidence, or that the only available inference was that Ms Richards must have had a micro sleep before the collision, is not available.
As the insurer itself submitted, other evidence was also consistent with Ms Richards having ceased paying the necessary attention to her driving, shortly before the collision.
In the result this claimed error was not established.
[18]
Costs
The parties wish to be heard on costs.
They should confer and provide proposed orders and in the event of disagreement, short submissions about what is in dispute within 14 days.
[19]
Orders
For the reasons given I presently order that:
1. The member's decision is set aside; and
2. The matter is remitted to the Personal Injury Commission for determination by a different member according to law.
[20]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 August 2023
The insurer relied on Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19, where at 519 it was explained that in determining upon whom a statute imposes a burden of proof, the intention to be ascribed to the legislature has to be determined. There, in a lengthy passage, which it must be accepted is written in language that is not easily penetrated, what was said included that:
"When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter".
There under consideration was s 47 of the Motor Car Act 1951 (Vic), which dealt with death or bodily injury caused by use of a motor car and permitted judgment to be obtained against a nominal defendant where the identity of the motor car could not be established. It contained a proviso: "Provided that no such judgment may be obtained unless such person as soon as possible after he knew that the identity of the motor car could not be established gave to the Minister notice of intention to make the claim and a short statement of the grounds thereof".
It was concluded that the substance of that proviso and its general tenor showed that it meant to impose a condition precedent to the cause of action and that accordingly, the burden of proof lay on the plaintiff: at 521. That was accepted, it being "evident that the legislature did not mean that the necessity of notice should be exceptional and did not advert to the contingency of a plaintiff's having no knowledge of the very fact which the main provision of s. 47(1) makes essential to his statutory cause of action": at 521.
Such an issue arose again in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; [1990] HCA 4, where reference was made to Vines at 257. There it was explained that "The distinction does not depend on the rules of formal logic": Dowling v Bowie (1952) 86 CLR 136; [1952] HCA 63. Rather, the categorisation of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. What has to be discerned is the legislative intention. Further, that this "may be discerned from express words or by implication": Chugg at 257.
In Chugg the question was whether the language used in the description of an offence, which would ordinarily be for the prosecution to prove, provided an exception which fell to a defendant to prove. At 258-259 it was further explained that "Although the form of language may provide assistance, ultimately the question whether some particular matter is a matter of exception is to be determined upon considerations of substance and not of form". It was also observed that such an exception arises where there is a prohibition of an act except "in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities."
In such cases, "If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof." That accorded with the approach discussed in Dowling v Bowie at 139-140, where reference was made to:
"… the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification."
How ss 3.11 and 3.28 are properly to be construed was in issue, the insurer contending that:
"The correct legal approach to determining where the onus of proof lies, in questions of statutory construction of this kind, is that where the existence of a particular fact(s) is a condition precedent to establishing a right or entitlement (such as an entitlement to weekly payments of statutory benefits or statutory benefits for treatment and care), then the onus is on the claimant to prove that the condition precedent is satisfied.
Where, on the other hand, there is a general right or entitlement held by a class of persons of which the claimant is a member, but the existence of a fact or facts results in the exclusion of a particular claimant from having that general right or entitlement, the insurer will bear the onus of proof."
Further, the insurer contended, the onus falling on Ms Richards to prove that she had not wholly or mostly caused the accident, accorded with the harmonious operation of this legislative scheme. That was because it limited an injured person's entitlement to no-fault benefits to 26 weeks, with entitlements thereafter being subject to the conditions precedent specified in subs 3.11(1). They introducing a fault-based element which fell to the injured person to establish.
I am not persuaded that the insurer is correct, given all that this statutory scheme provides for; that the provisions made in subss 3.11(1) and 3.28(1) are not only concerned with fault; and the way the parliament has dealt with onus in relation to contributory negligence in s 3.38, to which reference is made in both subss 3.11(2) and 3.28(2).
It is the insurer who denies an injured person's entitlement to statutory benefits after 26 weeks, having investigated the cause of the accident as the statutory regime required it to do and decided that it was he or she who wholly caused the accident, which triggers the miscellaneous claims application to the Commission. That follows the insurer's decision that the facts established by its investigation mean that the injured person is excluded from statutory benefits after 26 weeks and the injured person who disputes this.
It is not only the obligation imposed on the insurer to investigate the facts on which the right to the benefits provided by ss 3.11 and 3.28 depend, but all else that the legislature has required the insurer to do in respect of determining fault for an accident, which accords with the statutory objects, which has persuaded me that it also intended the insurer to establish, on review of a miscellaneous claim by the Commission, that a claimant does not have the entitlement to statutory benefits after 26 weeks which it denies.
It is also relevant that such proceedings follow a claimant having earlier failed to persuade the insurer to accept liability on an internal review of its original decision to deny the existence of that entitlement.
So far as fault is concerned, it is important that both subss 3.11(2) and 3.28(2) refer to s 3.38, which deals with reduction of weekly statutory benefits for contributory negligence. Its provisions are pertinent to the construction of subss 3.11(1) and 3.28(1), given how the question of onus is there expressly dealt with. It provides:
3.38 Reduction of weekly statutory benefits after 6 months for contributory negligence
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.
(2) A finding of contributory negligence must be made in the following cases -
(a) where the injured person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the injured person satisfies the insurer or the Commission that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,
(b) where -
(i) the injured person (not being a minor) was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
(ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,
(c) where the injured person (not being a minor) was, at the time of the motor accident, not wearing a seat belt when required by law to do so,
(d) where the injured person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so,
(e) where the defence of volenti non fit injuria would have been available, but for section 4.18 (Defence of voluntary assumption of risk), in proceedings for an award of damages in respect of the motor accident,
(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence -
(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage - by that fixed percentage, or
(b) by such percentage as the parties agree, or
(c) in any other case - by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.
(4) The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.
(5) This section does not exclude any other ground on which a finding of contributory negligence may be made.
(6) For the purposes of this section, an alcohol or other drug-related offence is -
(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person's breath or blood, or
(b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or
(c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or
(d) an offence, in connection with the driving of a motor vehicle, of -
(i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person's blood and urine, or
(ii) wilfully altering the concentration of alcohol or other drug in the person's breath or blood, or
(iii) preventing a sample of the person's blood from being taken for analysis.
At common law contributory negligence arises where a claimant's lack of care contributes to the occurrence of the injury or the nature or extent of it: Astley v Austrust Limited (1999) 197 CLR 1; [1999] HCA 6 at [21].
Given subs 3.38(1), it follows that it is relevant to the construction of ss 3.11 and 3.28 that both at common law and under the Civil Liability Act 2002 (NSW), it is for a defendant insurer to establish contributory negligence on which it relies: ss 5R and 5S discussed in Verryt v Schoupp [2015] NSWCA 128.
The parliament has interfered with that position in particular ways in enacting s 3.38 of the Motor Accidents Injuries Act. As to onus, in the case of injured persons convicted of "an alcohol or other drug-related offence in relation to the motor accident": subss 3.38(2)(a). Even in such a case the onus which falls on the injured person can be met by satisfying the insurer that "the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident."
This not only reflects the pivotal role which insurers play in this statutory regime, but also supports the conclusion that the parliament intended that the burden of proving in Commission proceedings that the injured person does not have an entitlement to benefits after 26 weeks, because they either wholly or mostly caused the accident, otherwise falls on the insurer who has already investigated its cause and decided that there is no such entitlement.
Were it for the injured person to prove in all cases that he or she did not mostly cause an accident, that would not only be a departure from the common law and the relevant provisions of the Civil Liability Act, but would make the onus particularly specified in subs 3.38(2)(a) of Motor Accident Injuries Act in the case of accidents which involved drugs and alcohol unnecessary.
It is Div 7.6 of the Act which deals with disputes about "a miscellaneous claims assessment matter": s 7.40.
That is defined in subss 7.1(1) to mean "a matter declared by Schedule 2 to be a miscellaneous claims assessment matter for the purposes of this Part." Schedule 2 declares various matters to be "miscellaneous claims assessment matters": cl 3. They include whether for the purposes of ss 3.11 and 3.28 that an accident was "caused wholly or mostly by the fault of the injured person": subcll 3(d) and (e).
Before such a dispute is referred for assessment by the Commission, it must be the subject of internal review by the insurer, with some presently irrelevant exceptions: s 7.41.
There was also no issue that it is the insurer's decision that the accident had been caused wholly or mostly as the result of the injured person's fault, which will trigger an application to the Commission, if the decision is not accepted by the injured person.
That pivotal investigation by the insurer of the cause of the accident is thus necessitated by the statutory scheme. There being otherwise no available basis for the decision which the legislation requires the insurer to make and notify the injured person of. By way of contrast, the scheme imposes no obligation on an injured person to establish the cause of the accident when making a claim, or subsequently when asking the insurer to review an unfavourable decision.
The information s 6.25 requires be given by the injured person in the case of a damages claim is merely relevant particulars of the motor accident. There is also a duty imposed on the owner and driver of the vehicle to co-operate with the insurer and to provide information it reasonably requests about such a claim: s 6.28. But these burdens are not imposed on an injured person pursuing statutory benefits after 26 weeks, who of course may or may not be the owner or driver of the vehicle.
The conclusion that before the Commission, it is thus also for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident had been caused wholly or mostly as the result of the fault of the injured person, follows logically from these statutory arrangements.
Approaching ss 3.11 and 3.28 in the way discussed in Vines and the other authorities earlier discussed, it is pertinent that what is being considered by the Commission on a miscellaneous claims application about entitlements to statutory benefits after 26 weeks, will necessarily concern the results of the insurer's investigation and the insurer's decision which followed, that the injured person does not have an entitlement to the claimed benefits.
While it is the injured worker who seeks the review, the burden of proof that he or she wholly or mostly caused the accident lying on the insurer, reflects a number of other relevant considerations.
They include not only that an injured person may have no memory of an accident or is in a position where they can shed no light on its cause, for example because of their age or not being the driver, but also the comparative resources of insurers and injured people. These are all matters which the legislature has plainly taken into consideration in arriving at the statutory scheme, given the requirements it has imposed on insurers.
An injured person having to investigate and establish the cause of an accident, would cause obvious problems in a no-fault compensation scheme. That helps explain why that is an investigation which the insurer is required to undertake, consistent with the statutory objects. As is the requirement to provide the injured person with information and reasons, so that they have an informed basis on which to decide whether or not to challenge or pursue a miscellaneous claim about an entitlement after 26 weeks.
The legislature having so provided, but then imposing a burden on the injured person to establish before the Commission that he or she did not wholly or mostly cause the accident, is both illogical and contrary to the statutory object of the quick, cost effective and just resolution of disputes.
This is most clearly explained by reference to cases where an insurer decides that an accident was "mostly" the fault of the injured person. That can only be because what the insurer has investigated establishes that the injured person's negligence was greater than 61%: subs 3.11(2).
The amount of an injured person's contributory negligence will no doubt sometimes be difficult to determine, but still at common law that is a matter for an insurer to establish. That the injured person was more than 61% at fault for the accident is something about which the insurer must also be satisfied, before making its decision in relation to entitlements under ss 3.11 and 3.28.
As I have explained, unless the injured person has been convicted of an alcohol or other drug-related offence, in which event the injured person must satisfy the insurer that he or she did not contribute in any way to the accident, contributory negligence is for the insurer to prove: s 3.38.
By way of contrast, an injured person who has not been convicted of an alcohol or other drug-related offence, proving that his or her contribution was less than 61%, would plainly be difficult for the insured person to come to grips with, let alone prove. That is not a requirement imposed on an injured person by s 3.38.
In the result I am satisfied that proof of such contributory negligence does not fall on the insured person. That supports the conclusion that the burden of proof of fault also falls on the insurer in cases where it has decided after its investigation, that an accident was wholly caused by the injured person.
Those conclusions also accord with the obviously beneficial nature of this legislative scheme. That necessarily compels attention being paid to the likely very different resources of an injured person and an insurer, which the legislature must have had in mind, given the statutory objects, intentions and other burdens imposed on insurers.
I consider that all of these considerations lead to the conclusion that the burden of proving that a motor accident was caused wholly or mostly by the injured person's fault must lie with the insurer when an injured person pursues a miscellaneous claims dispute about such a matter before the Commission.
I also do not consider that the provision made in s 5.3 can lead to any different conclusion, given the very different situation, no-fault accidents, there being dealt with. That provision concerns accidents which are not caused by the fault of the owner or driver of a vehicle. While there is a presumption flowing in such a case from a claim that the accident fell within the statutory definition, that can be displaced by evidence. Further, if it was the driver who died or was injured in the accident, damages cannot be recovered, even if his or her act or omission did not constitute fault in the use or operation of the vehicle, was involuntary, or not the sole or primary cause of the death or injury.
It follows that the provisions made in s 5.3 can shed no real light on what the parliament intended by enacting ss 3.11 and 3.28 as it did, by way of contrast to the provisions made in s 3.38.
In the result I am also satisfied that the way in which the member approached her resolution of the parties' dispute, by reference to the burden of proof falling on the insurer, involved no error of law.
But the member was not satisfied that this "conclusion was ever open to the insurer and therefore it has not satisfied the statutory proviso upon which cessation of statutory benefits is provided for by either s 3.11, or indeed, s 3.28 of the Act": at [16].
The member then gave an extensive account of Ms Richards' statement. It included that:
"[W]hilst she cannot deny with any certainty that she did or did not suffer a micro sleep, she can say that she has never experienced any side effects before or since from the use of the medication Champix, and that a micro sleep is just one possibility among many other possibilities" to which she referred in her statement: at [17].
This was a statement of belief, or submissions, Ms Richards offering several possible explanations: at [18]. They included that the possibility of a micro sleep was the least likely of those possibilities; that driving was not something about which the doctor had warned or told her that she should not do; nor had it been suggested that drowsiness or impairment during driving might occasion a micro sleep episode; that she had continued using the medication without incident; that at the time of the motor vehicle accident people were saying to her that she either tried to commit suicide or had fallen asleep; that her offering as an explanation the medication that she was on at the time had been just an attempt to explain what had happened, but she had no reason to expect that she could have had a micro sleep: at [19]-[20].
Ms Richards also denied suffering a mental illness, or that the accident was caused by her mental health at the time. She had just had breast implants and a facelift and was feeling positive about getting her life back on track: at [21].
On the evening before the accident, she was home and went to bed at her usual time of around 9.30 pm and had no reason to believe that she did not sleep soundly and woke the next morning at her usual time of about 7.00 am. She knew this because she was excited and planning to meet her father the next day for an annual remembrance of her grandfather's 100th birthday had he still been alive. This was important because her father had been diagnosed with terminal cancer, did not have long to live and she believed that this might be the last occasion that she would get to celebrate the memorial with her father. It was also her youngest daughter's 16th birthday and they were going out to celebrate the day after: at [22]-[24].
The accident happened as she was driving to meet her father. She was then motivated and focussed on putting her life back together after suffering serious injuries in another head on collision in June 2019 which had left her badly injured. She also explained the surgery she had required and the need to give up smoking, for which she had taken Chapmix, which had side effects about which she was not warned and had not experienced: at [25]-[26].
That she knew the area where the accident occurred well. It was surrounded by farmland and forest, which is fenced and unfenced and it was known to regular users of the road that wildlife and farm animals can stray onto the road and that care must be taken when using the road for risks which they posed. The trees also provide a habitat for birdlife and bats which are common in Dural: at [27].
The Dural Nature Reserve was very close, about 500 metres from the accident site. A lot of bushes there extend up to the road. It is the habitat for many native animals and introduced feral animals. Over the years she had observed wildlife and other feral and domestic animals appear from and out of the adjoining bush and farms along the road and on occasions try and cross the road. She had also observed dead animals on the side of the road, which have been killed while crossing. She had never had to take any evasive action or any emergency braking due to a hazard or wildlife or animals crossing her path, but she had seen situations where it could have happened in daylight: at [28].
That the risk that is posed at night is greater as there is no streetlight at the spot of the motor vehicle accident, making it very difficult to see a hazard entering onto the road: at [29].
Whilst she could not say with any certainty that she may have reacted to a hazard in front of her path, the different accounts of what was observed about her vehicle suddenly swerving without warning, where her driving had been normal and uneventful at the correct speed in the middle of the lane beforehand, was consistent with her reacting to an emergence into her path of a road hazard due to the surrounding habitats: at [30].
She always ensures she has a space cushion because of having been injured in June 2019, and she is usually overcautious and protective against a hazard appearing on the road. Her belief was that when the vehicle swerved, as witnesses reported, in a radical fashion, that was her response to an emergency and her reaction, her habit and practice being consistent with the presence of something having crossed in her path, her vehicle being well maintained and mechanically sound: at [31]-[32].
Her vehicle had a sound system and radio, but it was not her practice to listen to the radio or listen to music when she drove. She was also not using the telephone as the background noise from the air conditioning and outside traffic would make it difficult to hear: at [33].
It was not her practice and custom to use the vehicle's navigation system when travelling to a destination with which she was familiar. She travelled to the city along this road numerous times and was familiar with the trip. She could not think of any reason that would require her to use the satellite navigation that evening or why she would have been required to use it. In any event she could operate the system using voice commands or a touch screen. The vehicle had been fitted with a safety feature to reduce the potential of driver distraction by making manual functions inoperable while the vehicle was moving and that the only way to control it was the use of voice commands: at [33].
She was confident that she did not take any telephone calls whilst driving and she had the driver's window wound down as the investigation report made apparent. That was because at the time she was 49 years of age, had been diagnosed with perimenopause and was suffering from hot flushes which could happen without warning. If it happened whilst driving it could be hugely stressful when she experienced a sudden surge of hot skin which is both uncomfortable and could cause her to be distracted: at [34].
She did not think that an insect had entered the car window when she was driving because it is her usual practice to always pull over immediately to the side of the road where she can and clear the vehicle of whatever has entered into it.
Based on her experience and habits the only explanation for her sudden manoeuvre was having been placed in a position of peril and having to act in the agony of the moment to either avoid something or due to her being startled by something having entered the vehicle or her becoming aware of something in the vehicle which caused her to respond spontaneously and instinctively to the hazard: at [35].
She also rejected the suggestion that she was lighting a cigarette because she was using Champix medication and was determined to quit smoking. She denied not wearing a seatbelt. That was instinctive: at [36].
She submitted that the police had not considered the road where she was alleged to have swerved. There was no record as to the surface of the road at the time of the motor vehicle accident. Contamination of the road may explain her sudden swerving, which was not investigated and remains a possible cause for the sudden radical swerving of her vehicle: at [37].
The member then turned to explain the parties' submissions at [38]-[68]. She noted the insurer's reliance on:
What interviews with police and other witnesses established, including that the road was dry and that both vehicles were travelling at approximately 60 kmph when Ms Richards suddenly swerved across double lines into the oncoming traffic and collided with another vehicle.
Police had found her to be at fault, given what others observed, what she said and that she could not later recall the accident. It was on 13 August that she volunteered her use of Champix to help her cease smoking and that she might have had a micro sleep. The available evidence made it more likely that this was the cause of the accident.
Expert evidence from Dr Thomas, a respiratory and sleep physician, that a person may experience signs and symptoms such as drowsiness, loss of attention and head and neck jerking and difficulty keeping eyes open before a micro sleep, which could also be seen by an observer. He identified other factors which might increase the likelihood of a micro sleep, which may last for up to 10 seconds. While drivers are unlikely to remember falling asleep, they will be aware of precursors such as increased sleepiness and having to fight off sleep.
Falling asleep without due care while driving could rarely be exonerated and is indicative of fault or negligence: Kroon v R [1990] 55 SASR 476 and AAZ v NRMA Insurance Limited [2019] NSWSIRADRS 26 at [34].
If a micro sleep was not accepted, a momentary lapse of attention which resulted in the vehicle crossing the dividing lines of the road and colliding into oncoming traffic would be. As would the conclusion that it was Ms Richards who was wholly at fault for the accident, or mostly at fault, given what police body worn cameras showed of the accident site and what eyewitness interviews established.
The insurer contended that reliance could not be placed on Ms Richards' statements, given that they were neither logical nor probative as r 73 of the Commission's Rules required. Her various explanations of possible causes of the accident rested on unsubstantiated assumptions and unqualified opinions, which did not explain her driving error, or the inherent probability of the circumstances established on the evidence, or their most logical explanation.
Accidents caused by good drivers suffering momentary inattention were submitted to be commonplace and those caused by mechanical failure, road contamination, stray animals, and errant insects relatively rare.
What had to be considered by the Commission was whether the hypothesis for which the insurer contended was more probable than those for which Ms Richards advocated: Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19 at 358 applied in Dominello v Dominello & Anor; Dominello v The Nominal Defendant & Anor [2009] NSWCA 95.
Ms Richards' submissions were addressed to:
What police photos showed as to where brake fluid had come to settle on the road. She had accepted that she traversing the centre lines was prima facie evidence of negligence or fault, but contended that the evidence did not establish either this, or the cause of the accident.
That remained a matter of speculation and so it could not be concluded that she had crossed the double lines. If the true situation was that she had crossed the road, the insurer would have proven that by calling independent witnesses. Thus, Jones v Dunkel inferences arose against it.
In their absence, other possible reasons for the collision emerged, including one driver falling asleep, momentary inattention due to an insect or some other prevailing circumstance, driver panic or an emotional upset by virtue of the other vehicle crossing the line.
The reasons which the member gave began at [76] with:
"I am satisfied based on the totality of the evidence at the claimant's vehicle swerved radically and suddenly onto the right side of the dividing lines of the road. I am also satisfied that this happened immediately and without warning. I am satisfied that this manoeuvre is the sole cause for the collision."
The explanation for that conclusion rested on the evidence of the eyewitness Mr Smith, there being no evidence of Ms Richards' vehicle behaving in a manner consistent with the side effects or symptoms of drowsiness or distraction by a navigation system. The member concluded that "there is no logical probative evidence to suggest that the claimant suffered from a microsleep or was otherwise inattentive or distracted. Indeed, this evidence rise is no higher than a hypothesis": at [78].
She also concluded that Ms Richards' explanations for why the accident occurred "largely rise no higher than possibilities as there is no direct evidence of any of them. Nor is there any evidence from which I can infer their likelihood or probability in the factual matrix": at [79].
The member then identified "[t]he principal question to be whether the insurer can rely on the doctrine of res ipsa loquitur to make out the claimant's fault or negligence in circumstances where the claimant's vehicle swerved onto the wrong side of the road causing the collision". She concluded that despite "the cause of the accident having been identified, that is the vehicle swerved onto the wrong side of the road, the reason for this manoeuvre has not been positively identified. In the circumstances, the principle was inappropriate: see the discussion in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 at [20]-[25] and [39]-[47] (Gleeson CJ and McHugh J)": at [80].
The member then noted that the onus of proof of fault fell on the insurer, who wished to rely on the condition of exclusion under both ss 3.11 and 3.28, referring to both Vines and Chugg, before returning to the questions of the cause of the accident and negligence: at [81]-[83]. She considered at [84]-[85] that:
"To say that the circumstances of an accident speak for themselves does not mean that if no evidence of a probative, cogent, logical, and cohesive nature is given, that the insurer is entitled in law to rely upon the provisos to the payment of statutory benefits in ss 3.11 and 3.28 of the Act. Although the occurrence might appear to bespeak negligence, it is relevantly how clearly and convincingly it bespeaks negligence. This determination depends upon the circumstances.
I am not satisfied that the facts of the occurrence warrant the inference that the accident was occasioned by negligence. They do not compel me to such an inference particularly in circumstances where direct evidence of negligence is lacking. Weighing up all the evidence in particular the observations of Mr Smith whose evidence confirms in my mind that the accident was a sudden occurrence for which there was no warning, the better inference available on the evidence is that the claimant was, as she variously submits, taking evasive action in the agony of the moment."
The member then explained the principle of the "agony of the moment" in answer to a claim of negligent conduct, by quoting from Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 and cases in which it had been applied: at [86]-[87].
The member was not satisfied that the established facts warranted the inference that the accident was occasioned by negligence. Despite what she had observed in relation to Ms Richards' explanations rising no higher than possibilities, she concluded that the accident was a sudden occurrence for which there was no warning, but the better inference was that Ms Richards was, as she variously submitted, taking evasive action in the agony of the moment: Leishman at 175: at [85]-[86].
The member concluded that the better inference was that Ms Richards unexpectedly found herself in a situation not of her making which forced her to react suddenly and unexpectedly move into the path of the other driver. This was the most probable explanation given the semi-rural nature of the area in which the accident occurred and the claimant's statement as to what she would have likely done: at [88].
The member also considered that the evidence supported the conclusion that in so reacting Ms Richards did not have the opportunity for calm reflection which made it easy after the event to suggest that it would have been wiser if she had remained in her lane, rather than to have steered to her right causing her vehicle to spin: at [89].
On the totality of the evidence, she found herself faced with a situation which required immediate action of some sort. The inability to identify exactly what happened did not preclude the inference that something unexpected occurred which caused her to take evasive action. Her evidence that she was not using her telephone or was not otherwise inattentive or distracted had to be accepted. If she were, there would have been some indication, but Mr Smith observed none: at [89].
The member also concluded that "[i]f steering to the right was in hindsight the wrong thing to do (which it undoubtedly was), then it was, in my view, an error of judgment made in the 'agony of the moment'. The evidence supports the inference that the claimant was confronted with a situation with which she was required to make an instant decision or one with which it was necessary for her to deal in a matter of a milliseconds. The evidence does not support a finding that she acted unreasonably in any way to support a finding of negligence": at [90]
Accordingly, the member found that the insurer had not discharged the burden of demonstrating that Ms Richards was wholly or mostly at fault for the accident.
Further, as there discussed at [25], res ipsa loquitur may be relied on even though particular acts or omissions of negligence are alleged, provided that the tribunal of fact concludes that:
"1. there is an "absence of explanation" of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant."
In this case, Ms Richards could not remember the accident and so could not explain what caused it, it being she who was alone in the vehicle. Nor could the insurer. It had to depend on the results of its investigation. That established what Ms Richards did, which had been observed by others. There was thus before the Commission no issue that the collision occurred after she drove head on into an oncoming vehicle, without warning, on the wrong side of the road.
What caused Ms Richards to drive as she did into the oncoming traffic was thus an occurrence which logically, it must be accepted, does not typically occur without negligence. That is, as the result of a driver failing to maintain the required attention to his or her driving.
This is why the principle arose to be considered, as the insurer contended. What caused Mrs Richards' injuries, they being the result of that collision, also being established on the evidence, as the member accepted.
What the member thus had to consider together with this doctrine was the circumstantial evidence which shed light on the question of what caused the accident, in order to resolve whether the insurer had established that the collision was caused wholly or mostly by Ms Richards' fault. That being a matter about which Ms Richards could herself give no direct evidence and as the member found, much of the evidence she gave involving no more than conjecture.
What the member had to take into account was thus evidence concerning the condition of the road; the lighting; how Ms Richards was observed to be driving immediately before the accident, at a safe speed and distance from other vehicles and not erratically; what witnesses otherwise observed, including that there was no wildlife on the road; how and where her vehicle hit the oncoming vehicle; that this had occurred after Ms Richards had veered right, into the path of the oncoming vehicle; that the oncoming vehicle had also been driving at a safe speed; what police officers found at the scene when they attended; and what Ms Richards later told them about a possible cause of the accident and the effects of medication she was then taking.
But what the member concluded was that the reason for Ms Richards driving across the road directly into the oncoming traffic as she did not having been positively identified, application of the principle on which the insurer relied was inappropriate.
I am satisfied that it must be accepted that in so reasoning the member erred, that being contrary to what was decided in Schellenberg.
Even though there was no evidence of what had actually caused Ms Richards to veer as she did into the path of the oncoming vehicle, that did not preclude a finding that she was wholly or mostly at fault for the accident. In resolving that dispute, both the result of the application of the doctrine and what all of the relevant circumstantial facts and evidence established, considered as a whole, had to be taken into account by the member in coming to a conclusion about whether the insurer had met the burden of proof which fell upon it.
There were a number of possible explanations which arose to be considered, including driving deliberately into oncoming traffic, a medical episode and inattention. They were all addressed and thus also had to be considered.
But in coming to a conclusion about whether the insurer had established that the accident was caused wholly or mostly by Ms Richards' fault, the doctrine did arise to be taken into account, as the insurer contended.
It may be that in so approaching the determination of this issue, the member might have come to the same conclusion about whether the insurer had met the onus which fell upon it. But given the state of the evidence in relation to what was in issue, the insurer was entitled to rely on the doctrine and the member had to consider what conclusion its application led to, when all of the circumstances and relevant evidence were taken into account as a whole, as they had to be.
In the result it must be accepted that error of law has been established and the orders sought must be made.
Given that there was evidence that one witness had seen that there had been nothing on the road, to which the member made no reference and no other evidence that Ms Richards had reacted to a crisis or emergency which required her to take evasive action, that the member erred in concluding that she must have acted in the agony of the moment, must be accepted.
What the member concluded was that because "the accident was a sudden occurrence for which there was no warning, the better inference available on the evidence is that the claimant was, as she variously submits, taking evasive action in the agony of the moment" at [85].
On all of the evidence which arose to be considered, it follows that this was an inference which was not reasonably available on all of the evidence. The member certainly did not identify the evidence which provided a reliable basis for drawing that inference.
As explained in Origin Energy LPG Ltd (formerly Boral Gas (NSW) Pty Ltd) v BestCare Foods Ltd [2013] NSWCA 90 at [89]-[90], there must be evidence upon which the conclusion reached might reasonably and properly be based, applying Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4 at [213].
Here there was simply no evidence that the accident was the result of Ms Richards having to take evasive action and accordingly, it must be accepted that the member erred in drawing that inference.