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AAI Limited t/as GIO v Evic

AAI Limited t/as GIO v Evic

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Case Copied 11 October 2024 52 min read

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Supreme Court

New South Wales

Medium Neutral Citation: AAI Limited t/as GIO v Evic [2024] NSWSC 1272
Hearing dates: 21 August 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Common Law - Administrative Law
Before: Mitchelmore J
Decision:
The further amended summons is dismissed.

Catchwords:
ADMINISTRATIVE LAW — statutory construction — whether ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) apply to owner driver injured in single vehicle accident — “wholly or mostly” the fault of the injured person construed to include contributory negligence — error of law established
ADMINISTRATIVE LAW — remedies — declaration — where error of law established — whether relief refused in exercise of Court’s discretion — utility of declaration — free standing basis for decision — no foreseeable consequences between parties — no legal controversy between parties

Legislation Cited:
Civil Liability Act 2002 (NSW), Pt 1A, Div 8, ss 5, 5R, 5S
Motor Accident Injuries Act 2017 (NSW), Pts 2, 3, 4, 5, 7, Sch 2, cl 3, Sch 4, cl 15
Motor Accident Injuries Amendment Act 2022 (NSW), Sch 1, items 16, 18, 21, 23
Motor Accidents and Workers Compensation Legislation Amendment Act 2022 (NSW)
Motor Accidents Compensation Act 1999 (NSW), Pt 5, ss, 7A, 7F, 7K
Supreme Court Act 1970 (NSW), s 75

Cases Cited:
AAI Limited v Singh [2019] NSWSC 1300; 90 MVR 1
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568; [2005] HCA 26
Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788; 104 MVR 405
Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245
Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311
Buttrose v Attorney General of New South Wales [2015] NSWCA 221; 324 ALR 562
Commissioner of Taxation of the Commonwealth of Australia v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32
Commonwealth of Australia v BIS Cleanaway Ltd [2007] NSWSC 1075; 214 FLR 271
Davis v Swift [2014] NSWCA 458; 69 MVR 375
ENT19 v Minister for Home Affairs [2023] HCA 18; 97 ALJR 509
Gardner v The Dairy Industry Authority (NSW) (1977) 18 ALR 55
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; [2016] HCA 7
Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41
Prodrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Roger v De Gelder [2015] NSWCA 211; 71 MVR 514
Whitfield v Melenewycz (2016) 92 NSWLR 624; [2016] NSWCA 235

Texts Cited:
Explanatory Note to the Motor Accidents and Workers Compensation Legislation Amendment Bill 2022 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 June 2021
New South Wales Legislative Assembly,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 1272
Decision Date: 11 October 2024

CaseChat Overview and Summary

The case involved AAI Limited trading as GIO, the insurer, and the respondent, Evic, an owner driver who was injured in a single vehicle accident. The central dispute was whether sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) applied to Evic's claim for compensation. These sections relate to the insurer's liability when an injured party is "wholly or mostly" at fault for the accident. The court was required to determine if this phrase included situations where the injured party's negligence contributed to the accident, even if they were not the sole cause.

The legal issues before the court were primarily concerned with statutory interpretation. The court had to construe the phrase "wholly or mostly" the fault of the injured person to decide whether it included scenarios of contributory negligence. Additionally, the court considered whether the error of law established warranted a declaration and whether the relief should be refused in the exercise of the court's discretion. The utility of the declaration, its free-standing basis for the decision, and the absence of foreseeable consequences or legal controversy between the parties were also examined.

In its reasoning, the court found that the phrase "wholly or mostly" the fault of the injured person did indeed encompass situations of contributory negligence. This was an error of law that had the potential to affect Evic's entitlement to compensation. The court decided that a declaration was appropriate to correct this error and ensure clarity in future claims. The court exercised its discretion not to refuse the relief, considering the utility of the declaration and its potential to provide a clear legal basis for similar future cases. The court noted that there were no foreseeable consequences or a live legal controversy between the parties at that moment.

The final orders of the court included a declaration that sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) apply to cases where the injured party is "wholly or mostly" at fault for the accident, including situations of contributory negligence. The court also noted that no costs were awarded in relation to this decision.

Orders