ABD v NRMA Insurance - [2021] NSWPIC 163

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABD v NRMA Insurance [2021] NSWPIC 163
APPLICANT:	ABD
RESPONDENT:	NRMA Insurance
MEMBER:	Anthony Scarcella
DATE OF DECISION:	27 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act 2017; bicycle collided with a motor vehicle; intersection; determined on the papers; witness; insured driver drove the claimant to his home; claimant did not slow down at all as he came through the intersection; red mountain bike type; COPS report; bicycle rider was meant to stop and give way to the vehicle; conflicting versions of the motor accident; claimant’s evidence contained inconsistencies; claimant failed to give way; failed to keep a proper lookout; Held- motor accident caused mostly by the fault of the claimant; legal costs.
DETERMINATIONS MADE:	1. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 the motor accident was caused mostly by the fault of the injured person. 2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

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

BACKGROUND

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause 3(e) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether the injured person was wholly or mostly at fault within the meaning of section 3.28 of the MAI Act.
On 17 November 2019, ABD (the Claimant) was riding his bicycle when it collided with a motor vehicle driven by NM (the Insured Driver) at an intersection in Nelson Bay (the motor accident).
On 10 December 2019, the Claimant lodged an application for personal injury benefits with the relevant compulsory third party insurer, NRMA Insurance (the Insurer).
The Claimant received statutory benefits in the form of treatment and care expenses following the motor accident.
On 21 February 2020, the Insurer notified the Claimant that it had decided that the Claimant was wholly at fault in the motor accident and notified that it would cease payments of statutory benefits from 17 May 2020.
On 13 March 2020, the Claimant made an application for internal review of the Insurer’s decision.
On 3 April 2020, the Insurer conducted an internal review and issued a Certificate of Determination confirming its original decision and certifying that the Claimant was wholly at fault in the motor accident.
On 14 April 2020, the Claimant lodged the Dispute Resolution Application form and supporting documents currently before me (the Application). On 15 May 2020, the Insurer lodged the Dispute Resolution Reply form and supporting documents (the Reply).
At the teleconference on 15 July 2020, the parties agreed that the issue in dispute is whether the Claimant was wholly at fault in the subject motor accident under section 3.28 of the MAI Act.
The parties agreed that the Insurer bears…

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 ABD v NRMA Insurance

Details

AGLC: ABD v NRMA Insurance [2021] NSWPIC 163
Case: [2021] NSWPIC 163
Decision Date: 27 May 2021

CaseChat Overview and Summary

The case of ABD v NRMA Insurance was determined by the Court and involved a dispute over an insurance claim following a motor accident. The claimant, a cyclist, collided with a motor vehicle at an intersection, and the insurer, NRMA Insurance, refused to pay the claim under section 3.28 of the Motor Accident Injuries Act 2017, which holds that compensation is not payable if the accident was caused mostly by the fault of the claimant. The claimant argued that the motor vehicle driver was at fault for not giving way, while the insurer contended that the cyclist failed to stop and give way as required, and was primarily at fault for the accident.

The central legal issue the Court had to decide was whether the claimant's fault was the predominant cause of the accident. This required an examination of the evidence, including witness statements, the COPS report, and the conflicting versions of events presented by the parties. Notably, a witness who was a passenger in the motor vehicle stated that the cyclist did not slow down as he came through the intersection and that the cyclist was meant to stop and give way to the vehicle. The claimant's evidence contained inconsistencies, which further complicated the determination of fault.

The Court found that the claimant was mostly at fault for the accident. The claimant failed to give way at the intersection, did not keep a proper lookout, and did not slow down as he approached the intersection. The Court considered the conflicting accounts of the accident, but ultimately concluded that the claimant's actions were the predominant cause of the collision. Consequently, the Court ruled in favour of the insurer and held that the motor accident was caused mostly by the fault of the claimant. The Court also ordered the claimant to pay the insurer’s legal costs.

Orders