Abdi v Allianz Australia Insurance Limited
[2024] NSWPIC 609
•30 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Abdi v Allianz Australia Insurance Limited [2024] NSWPIC 609 |
| CLAIMANT: | Hamid Abdi |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 30 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute as to whether the claimant is wholly or mostly at fault for the accident; single motor vehicle accident; claimant injured as the rider of a motorcycle in the Royal National Park; motorcycle went off the road and hit a road sign and rock wall causing a finger amputation; Held – claimant found to be wholly at fault due to inexperience and a failure to adequately control his vehicle; consideration of Evic v AAI Limited t/as GIO. |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was caused wholly by the fault of the injured person. |
STATEMENT OF REASONS
INTRODUCTION
Mr Hamid Abdi (the claimant) is a 40-year-old male who suffered injury as a result of a motor accident that occurred on 3 June 2023. The motor accident is a single vehicle accident. The claimant was the rider of a motorcycle in the Royal National Park NSW, which was involved in a collision resulting in the motorcycle being wedged between a rock wall and a road sign.
The claimant subsequently lodged an Application for Personal Injury Benefits (claim form) with the insurer of his motorcycle.
Statutory benefits were initially paid to the claimant, however, by way of notice dated 15 September 2023 the insurer denied ongoing liability for statutory benefits beyond 52 weeks. The reason for the denial was the insurer’s decision that the claimant was wholly at fault for the accident.
An internal review was requested, and the original decision was affirmed on 16 August 2023.
The claimant subsequently lodged an application with the Personal Injury Commission (Commission) and the matter has been allocated to me for determination.
I held one teleconference with the parties 11 July 2024 wherein it was determined that it was appropriate for me to determine the matter on the papers. However, subsequently, I determined that a central issue relevant to my determination – whether a driver in a single vehicle motor accident can be deemed at fault – was to be the subject of a hearing in the Supreme Court of NSW (Evic v AAI Limited t/as GIO [2023] NSWPIC 626).
The Supreme Court handed down their judgment on 11 October 2024 – AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic).
Now that such judgement is to hand it is appropriate that I now assess the dispute.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply and all additional material provided by the parties.
LEGISLATIVE FRAMEWORK
Section 3.11 of the Motor Injuries Act 2017 (MAI Act) provides as follows:
“(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%.”
Section 3.28 of the MAI Act provides as follows:
“(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.”
Pursuant to Schedule 2, cl (3)(d) and (e) of the MAI Act, disputes relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
CIRCUMSTANCES OF THE ACCIDENT AND SUMMARY OF EVIDENCE
The accident occurred at approximately 11.30am on Sir Bertram Stevens Drive, Royal National Park NSW. The weather was wet. The speed limit at the time was 60kmph.
The claimant was riding his motorcycle in the company of his partner, Lauren Atkins, who was also riding a motorcycle in front.
The claimant sustained injuries, including an amputated finger, as a result of the accident and was transported to St George Hospital via ambulance.
Claim form
In his claim form dated 16 June 2023, the claimant provides the following description of events:
“There was light rain so the road was wet. I was riding my motorcycle slower than usual. I entered the corner at approx. 30km/hr and the bike slid off the road, sliding between the rock wall face & metal road sign. The bike was wedged in this position with finger between handlebar & metal road sign (chopped off).”
Lee Kelly Commercial Investigations factual investigation report dated 29 June 2023
The investigation was undertaken at the request of the insurer. It includes a number of photographs of the relevant stretch of roadway and a diagram of the site. The photographs demonstrate a slight bend with road signs placed in close proximity to a rock wall.
Investigators interviewed the claimant on 23 June 2023 and a transcription of the interview recording is included in the report.
The claimant explained that he had been riding motorcycles for five to six months, however, had experience riding in his home country of Iran. He described himself as inexperienced with riding and his partner was more experienced with riding compared to himself.
The claimant had travelled on the subject stretch of roadway prior to the accident, but not on a motorcycle.
He confirms that the road was wet and it was raining and when asked again he described it as a “slight drizzle”. The claimant goes onto provide a description of events from question 99 as follows:
“Q 99 Okay. Just in your own words and in as much detail as you can, can you tell me what happened?
A Ah, I was riding and the floor was wet and ah, we got to the corner and, and oh, she was in…riding in front of me so I was riding so slow because I’m not experienced with bike especially on a rainy day.
Q 100 Yeah
A Like I haven’t ride it much
Q 101 Yeah
A And I was like riding slowly like thirty, forty. I can’t remember the exact speed but I was so slow.
Q 102 Yeah
A So, we get to the corner. I was trying to like slow my speed lower there, there because bike suddenly start sliding to the side of the road.
Q 103 Yeah
A Yeah. And I got stuck. I went through that…I went to that road like so narrow so is not that ??? (mumbling) so I ???(mumbling) and bike it slide out to the…and got stuck between the rock wall…
Q 104 Yeah
A …and a sign road. Like I went through in that like narrow like spot and stop.
Q 105 So, the rock wall’s on your left hand side?
A Yes.
…”
Investigators also interviewed the claimant’s partner, Lauren Atkins on 25 June 2023 and a transcript of that interview recording is included in the investigation report.
Ms Atkins confirms she obtained her motorcycle licence in, she thinks, the middle of 2021.
She describes travelling around 100 metres ahead of the claimant at the relevant time. She describes the accident as occurring on a left hand corner that is “quite sharp” and then that goes to another corner which is where the accident occurred.
Ms Atkins describes going towards the next corner and she could see the claimant in her rearview mirrors. She states at answer 39:
“…um, come off the road. I actually thought though because he was going at such a slow speed, I actually thought he was just pulling off to, to make a stop um, so I then had to safely, like I had to go down like I don’t know, maybe another half kilometre to find a spot to turn around to come back because that area of the National Park there’s not a lot of side road like it’s all barriers or walls.”
At answer 44 she goes on:
“Um, I saw him what looked like he was pulling off and in my mind I went that’s a really strange place to pull off.
I didn’t actually see him collide with the road sign before I turned the corner.
I just saw him coming off the road.”
Ms Atkins described the roadway as being a bit damp and that at the time there was patchy rain.
She went on to state that it was “such a weird accident” and that the claimant could not have been more safe.
She also stated that she considered the accident to be due to a miscalculation with the road surface and its dampness being involved and that one needs to maintain some sort of speed to keep the motorbike upright.
Other evidence
A large amount of medical evidence has been provided. They document serious injuries sustained as a result of the accident, however, are largely not relevant to my determination.
The claimant’s general practitioner (GP) Dr Balasingham recorded on 14 June 2023 that the claimant “was riding bike. Was slippery Bike – slipped and hit the rock and the road sign.”
The notes from South Eastern Sydney Local Health District document the claimant suffering injury as a result of the accident, at a speed of 40kmph, that the claimant hit a ditch and came off the road and was unsure about the exact mechanism.
The NSW Ambulance records describe the claimant being injured due to a single motorbike collision at approximately 40kmph. The motorbike is said to have ridden into a ditch and scraped hazard sign.
SUBMISSIONS
The claimant has not lodged any submissions. According to the insurer’s internal review certificate dated 28 May 2024, the claimant requested an internal review on 10 May 2024 and stated: “I am writing to state my disagreement in regard to your liability decision and cessation date. Based on my mental and physical condition, I still require medical support an statutory benefits. I require cessation date to be reviewed.”
Insurer submissions dated 4 July 2024
The insurer notes that the claimant has not made any submissions or lodged evidence to support a contention that he was not wholly or mostly at fault. It is further noted that the “no-fault” provisions of the MAI Act do not apply to statutory benefits claims.
It is submitted that the claimant lost control of his motorcycle which resulted in it falling into a ditch and therefore the claimant is “plainly at fault for the subject accident”.
The insurer refers to decisions of other Members of the Commission where it has been found that riders of motorcycles involved in single vehicle accidents were wholly at fault. Those decisions being Yankovich v AAI Limited t/as GIO [2022] NSWPIC 137 and Douglas v AAI Ltd t/as AAMI [2022] NSWPIC 246 (Douglas).
The insurer notes that Member Stern, in the matter of Douglas referred to Windeyer J’s comments in Piening v Wanless [1968] HCA 7 that:
“If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent. (cited by Gaudron J in Schellenberg v Tunnel Holdings [2000] HCA 18).”
Quoting Manley v Alexander [2005] HCA 79; 80 ALJR 413, the insurer submits that a driver is required to take reasonable care for the safety of oneself, including an obligation to keep a proper lookout and maintain proper control of the vehicle.
The insurer specifically submits that the claimant is wholly at fault as follows:
“a) the claimant was negligent by not driving for the prevailing weather and roadway conditions and failing to take reasonable precautions to avoid a reasonably foreseeable risk and avoid injury;
b) the claimant failed to alter his manner of driving reasonably and sufficiently and should have reduced his speed further to safely turn right on the bend;
c) the claimant’s negligent use and operation of his vehicle caused him to lose control of his motorcycle and caused the accident;
d) the claimant was negligent in that he was driving at a speed that was excessive in the circumstances;
e) the claimant did not exercise reasonable care and have due regard to his own safety;
f) the claimant failed to take adequate measures or precautions to ensure his own safety and having regard to the driving conditions.”
FINDINGS AND REASONS
As noted above, the determination in this matter has been delayed whilst awaiting the Supreme Court’s decision in the matter of AAI Limited t/as GIO v Evic [2024] NSWSC 1272.
In that case, the Court dealt with the question of whether a claimant driving their own vehicle can be considered “at fault” for the purposes of ss 3.11 and 3.28 of the MAI Act.
Judge Mitchelmore found that a claimant in a single motor vehicle accident can be considered to be wholly or mostly at fault for the purposes of ss 3.11 and 3.28. In this regard, it was noted that the words “wholly or mostly” in respect of the determination of “fault” invokes the legal concept of contributory negligence.
It was found that the concept of fault in Part 3 cannot be conflated with the tortious concept of contributory negligence found in parts 4 and 5 of the MAI Act.
Given that it is now clear that an injured person in a single motor accident can be found wholly or mostly at fault it is now necessary for me to consider whether the claimant was wholly or mostly at fault.
There is no controversy on the evidence that the roadway was wet to some degree at the time of the accident. In addition, the roadway is a bendy stretch of road.
It is also clear from the evidence that the claimant was somewhat inexperienced in riding motorcycles.
There is no evidence that the claimant was being reckless in his manoeuvring of the motorcycle, nonetheless, I find that the most likely cause of the accident was a combination of the claimant’s inexperience and failure to control the vehicle appropriately on a wet bendy road. Accordingly, I find that it was the claimant’s control of the vehicle that caused it to collide with the rock wall and sign by failing to ride to the prevailing conditions.
There is no evidence that an extraneous factor caused the accident. Or, rather, there was no extraneous factor that contributed to the accident that the claimant should not have been reasonably aware of. Extraneous factors such as a wet road surface is a factor that the claimant should have been reasonably aware of and taken into account when manouevuring the motorcycle. It was his failure to adequately control his vehicle in light of those factors that caused the accident.
In this regard, the claimant’s own account of events refer to the motorcycle slipping, which is also consistent with the account of events included in the ambulance report, the hospital and GP records.
CONCLUSION
On the above basis, I find the claimant to be wholly at fault for the accident.
0
7
0