Walking and talking (on the phone) – did the Claimant contribute to his injuries? Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597

In Brief

• Section 4.17 of the Motor Accident Injuries Act 2017 (MAIA) requires the Member to reduce damages recoverable in respect of the accident by such percentage as is considered just and equitable in the circumstances of the case.
• Section 4.7 of the MAIA does not prevent a buffer being awarded for future economic loss in appropriate circumstances.

Facts

On 24 November 2023 The Personal Injury Commission released its decision in Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597.

The Claimant alleges he was standing behind a parked car and that the Insured vehicle ran over his foot.

The Insurer alleges the Claimant walked into the path of the Insured vehicle.

The Insurer admitted liability and alleged contributory negligence of 60% because:

• the Insured driver was travelling at a very low speed;
• the Claimant was not keeping a proper lookout;
• the Claimant was distracted because he was talking on his mobile phone; and
• the Claimant proceeded to walk into the line of traffic.

The Claimant argued that there should be no reduction for contributory negligence.

The matter proceeded to assessment before the Commission for assessment of liability and damages.

PIC Member’s Reasons

Issues

The PIC Member was called upon to determine two issues:

• The amount that damages should be reduced in accordance with section 4.17 of the MAIA.
• The Claimant’s entitlement to damages for economic loss including an assessment of the invoices and the evidence in relation to his earnings.

Contributory negligence

The parties accepted the Insured driver was travelling at a very low speed.

The Member preferred the evidence of the Insured driver and another witness. The Member accepted that the Claimant crossed in front of the Insured vehicle, was holding shopping bags in his hands and was looking in the opposite direction at the time the accident occurred.

The Member found the Insured driver was more at fault than the Claimant. However, the fault of the Claimant was significant.

The Member determined the just and equitable deduction for contributory negligence was 40%.

Evidence of earnings

Throughout his claim, the Claimant provided four differing versions of how much he earned per month. Given the significant variations in the estimates provided, the Member found it was not possible to accept any of them as a reliable assessment of the Claimant’s earnings.

The Claimant argued that the tax return was a true reflection of his earnings.

The Member determined the amount of total sales in the tax return was less than the total amount of the invoices relied upon by the Claimant and therefore the tax return was not consistent with the evidence given by the Claimant.

The Member could not accept that the tax return was a true reflection of the Claimant’s earnings.

The Member accepted that the Claimant had a much greater capacity for work than he asserted and a calculated amount for future economic loss could not be made. The Member allowed a buffer of $100,000 on the assumption that the Claimant could, within time, return to his pre-accident hours.

Key Learnings

The decision in Kouchekisheikhani v Allianz Australia Insurance Limited [2023] NSWPIC 597:

1. Demonstrates that an allowance for past and or future economic loss needs to be based on evidence such as payslips or tax returns. For self-employed Claimants, it will be based on invoices rendered, company tax returns and bank statements. If the evidence does not reconcile to the claimed amount then a Member cannot accept the evidence as an accurate or reliable assessment of a Claimant’s earnings.
2. Confirms if a calculated approach cannot be made then a Member will award a buffer allowance.
3. Provides a useful example of how a PIC Member might evaluate the relative culpability of a driver and a distracted pedestrian.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.