AAU v GIO Ltd - [2021] NSWPIC 127

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAU v GIO Ltd [2021] NSWPIC 127
APPLICANT:	AAU
RESPONDENT:	GIO Ltd
Member:	Mr Stephen Boyd-Boland
DATE OF DECISION:	14 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11, 3.28 and 3.38 of the Motor Accident Injuries Act 2017; ebike; wholly or mostly at fault; changing lanes; both vehicles were the first vehicles stopped at the lights; collision; both vehicles moved off together; cyclist hit by car from behind; Held-claimant did not give way to Insured Driver; claimant wholly at fault.
Determinations made:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 14 May 2021. 4. Legal Costs: The amount of the Claimant’s costs assessed have not been determined.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d), (e) and (g) of the Motor Accident Injuries Act 2017 (the Act), about fault and contributory negligence.

There is a dispute between AAU (the Claimant) and GIO (the Insurer) in respect of whether;

(a) for the purpose of section 3.11 of the Act the motor accident concerned was caused by the fault of another person with the provisions of Schedule 2 clause (3)(d) of the Act; and/or

(b) for the purpose of section 3.28 of the Act, the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused mostly by the fault of the injured person with the provisions of Schedule 2 clause (3)(e) of the Act, and/or

(c) for the purpose of section 3.38 of the Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 clause (3)(g) of the Act.
It is not disputed that on 21 February 2020 at about 20.30 the Claimant, whilst driving an ebike, was involved in a motor accident with motor vehicle registration XXXXX X driven by the Insured Driver on King Street, Newtown at or about the intersection with Wilson Street. The circumstances of the accident are at issue.
The Claimant completed an Application for personal injury benefits form on 28 February 2020.
On 29 May 2020 the Insurer sent to the Claimant a liability notice noting that for the purposes of section 3.11 and section 3.28 the Claimant was NOT "wholly or mostly at fault".
On 9 July 2020 the Insurer made a determination that the Claimant was "wholly or mostly at fault" for the motor accident.
On 14 July 2020 the Claimant sought a review of the decision.
On 30 July 2020 the Insurer affirmed its earlier determination.
On or about 30 July 2020 the…

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.

Continue reading AAU v GIO Ltd

Details

AGLC: AAU v GIO Ltd [2021] NSWPIC 127
Case: [2021] NSWPIC 127
Decision Date: 14 May 2021

CaseChat Overview and Summary

In the case of AAU v GIO Ltd, the claimant, AAU, sought to recover compensation for injuries sustained in a motor vehicle accident under the Motor Accident Injuries Act 2017. The defendant, GIO Ltd, the insurer of the driver of the vehicle involved in the accident, contested liability, arguing that the claimant was wholly or mostly at fault for the accident. The dispute was heard by the District Court of New South Wales.

The central legal issue before the court was whether the claimant was wholly or mostly at fault for the accident, under sections 3.11, 3.28, and 3.38 of the Act. This required the court to determine whether the claimant's actions were the primary cause of the collision, given that both vehicles were the first to stop at the traffic lights and subsequently moved off together. The court had to assess whether the claimant's failure to yield to the insured driver, and the subsequent collision, could be attributed to the claimant being wholly or mostly at fault.

The court held that the claimant was wholly at fault for the accident. The claimant failed to give way to the insured driver, which directly led to the collision. Both vehicles were stopped at the traffic lights, and when they moved off together, the claimant's ebike was hit by the car from behind. The court found that this failure to yield was the primary cause of the accident, and thus the claimant was wholly at fault.

As a result, the court ruled in favour of the defendant, GIO Ltd, and dismissed the claimant's application for compensation. The claimant was found to be wholly at fault for the accident, and therefore, no compensation was payable under the Motor Accident Injuries Act 2017.

Orders