Abe v AAI Ltd t/as GIO
[2021] NSWPIC 164
•28 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | ABE v AAI Ltd t/as GIO [2021] NSWPIC 164 |
| APPLICANT: | ABE |
| RESPONDENT: | AAI Ltd t/as GIO |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 28 May 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; motor bike; determined on the papers; construction site; piece of gyprock on the road directly in front; back wheel travelled over it and motorcycle slid; tear of the AC ligament of the right shoulder; view was obstructed by a 4WD car; Held- found the claimant is not wholly at fault; accident occurred because of a combination of the gyprock on the roadway and the negligence of the claimant; failed to keep a proper lookout; excessive speed; contributory negligence in the vicinity of 35%. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 the motor accident was not caused wholly or mostly by the fault of the Claimant. 2. For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of the Claimant. |
Introduction
The matter for determination relates to a miscellaneous claim which is a reviewable decision under Schedule 2, clause 3(d) and (e) of the Motor Accident Injuries Act, 2017 (the Act) about whether ABE (the Claimant) was wholly or mostly at fault for the accident.
The Claimant completed an Application for Personal Injury Benefits in respect of injury sustained whilst riding his motor bike to work on 22 July 2020.
On 30 October 2020 the Insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis the Claimant was wholly at fault for the accident.
On 14 January 2021 an Application for an internal review was submitted by the Claimant.
In an Internal Review Decision dated 29 January 2021 the Insurer confirmed the decision that the Claimant was wholly at fault for the motor accident.
The Claimant lodged an application in respect of a Miscellaneous Claims Assessment on 18 February 2021.
The matter was the subject of a teleconference on 10 May 2021. I asked the Claimant to provide me with a copy of the photograph titled “Untitled Map” on which I asked him to mark where the 4WD car was parked at the time of the accident. I asked the Insurer to provide me with a copy of the Internal Review Decision.
The Claimant subsequently submitted through the portal five additional photographs:
· Photograph marked AD3 showing a Black Subaru vehicle which I understand the Claimant asserts was parked in a similar position to the 4WD in Dickinson Street. It appears the vehicle was parked a short distance from the intersection with Smart Street.
· Photograph marked AD4 again showing the Black Subaru vehicle and a bus parked some distance behind the Subaru in Dickinson Street, taken from a greater distance from the intersection with Smart Street.
· Photograph AD5 again showing the Black Subaru and the Bus parked in Dickinson Street but taken from a further distance again from the intersection with Smart Street.
· Photograph AD6 showing the Black Subaru, the bus, a boat, and another car in Dickinson Street, from a greater distance but looking up Dickinson Street towards the intersection of Smart Street.
· Photograph AD7 showing the Black Subaru parked in Dickinson Street, but only a short distance from the intersection with Smart Street.
Noting this was new evidence I invited the Insurer to provide further submissions, but I was advised the Insurer did not wish to provide any further submissions. The parties otherwise agreed it was appropriate for the matter to be determined on the papers.
Documents considered
· Application for Personal Injury Benefits.
· Police Event Report.
· Discharge Referral of John Hunter Hospital.
· Map and photographs of the accident scene and the nearby construction site (x 4).
· Report of M & A Investigations including statement of the Claimant dated 19 October 2020, a diagram of the accident site and photographs numbered 1 to 13.
· Liability Notice issued by the Insurer dated 30 October 2020.
· Email from B of Suncorp to the Claimant dated 14 January 2021 re cessation of claim and email in reply from Claimant seeking an internal review of the “at fault” decision.
· File note dated 18 January 2021.
· Internal Review Decision dated 29 January 2021.
· Submissions of the Insurer dated 29 March 2021.
· Photographs filed in the portal and marked AD3, AD4, AD5, AD6 and AD7.
The relevant law
Section 3.11 of the Act states:
“(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%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
Section 3.28 of the Act states:
“(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.”
The evidence
On 22 July 2020 on his way to work at about 5.00 pm the Claimant was riding his motorbike in Dickinson Street, Charlestown. In a statement dated 19 October 2020 the Claimant stated:
“25. The accident I was involved in occurred about 5 pm on 22 July 2020.
26. The accident occurred on the corner of Dickinson and Smart Streets Charlestown.
27. Dickinson Street is a two lane road which travels in a north-south direction. The southern end of the street is a cul-de-sac.
28. My home is located about 50 metres from the intersection where the accident happened. At the time of this accident there was a construction site directly across from my home where a medical centre was being built. I later got a photograph of the name of the construction company which was Insight Building Services Pty Ltd. I am not certain that the gyprock that was on the road and caused this accident came from this construction site.
29. Smart Street is also a two lane road which travels in an east-west direction.
30. Both streets are constructed of a bitumen surface which is in good condition.
31. Both streets are level and straight.
32. The speed limit at this location is 50 or 60 km/h.
33. I have drawn a sketch of the accident location.
34. I am unsure if there are any CCTV cameras covering that area.
35. The weather on the day of the accident was fine and sunny.
36. I was the only person on the motorcycle. I did not have any pillion passengers.
37. On the day of the accident I woke about 9 am – 9.30 am.
38. During the day I was just at home and also went for a ride on my push bike.
39. Later in the afternoon I prepared for work and left home riding my motorcycle about 5 pm to go to work at Newcastle University.
40. I turned left out of the driveway and commenced to ride north on Dickinson Street towards Smart Street.
41. On approach to the intersection with Street I looked to the right for traffic. There was no traffic coming along Smart Street. I had my left indicator on and as I commenced to make a left turn into Smart Street I noticed a piece of gyprock on the road directly in front where I was about to ride. The gyprock was about 30cm in size. I tried to avoid riding over the gyprock attempting to steer to the right but it was too close to my bike.
42. The front wheel of the motorcycle missed the gyprock but the back wheel travelled over it as I moved through the corner causing the motorcycle to slide to the right. The motorcycle slid a short distance and when the rear wheel gained traction on the bitumen surface the bike flicked over to the right and I was catapulted off the bike onto the road.
43. The motorcycle came to a stop facing east on Smart Street and I landed close to the centre of Smart Street.
44. I landed on my right side and I immediately felt pain in my right shoulder and left knee. I stayed down on the road.
45. There were three bystanders who were nearby and saw what happened but I do not have their details. One of the men assisted me and got my motorcycle up off the road. He offered to call an ambulance but at the time I declined because I did not realise I had injured myself severely. The man also helped me push my motorcycle back home.
52. In the 24 hour period prior to this accident I had not consumed any alcohol, medication or drugs. When I went to the hospital a blood sample was taken from me for alcohol and drug testing but I have not received any result and I do not expect the tests to be positive.
53. At the time of this accident I was wearing motorcycle riding gloves, leather jacket, full face helmet, steel cap boots and long trousers.
54. I do not know the details of any witnesses to the accident.
55. At the time of the accident I would have been travelling no more than 20km/h. I believe I would have been in second gear as I only had to slow down as I approached the intersection and looked to the right. I did not have to stop.
56. When I first saw the gyprock it would have been about 1.5 metres from my front wheel. At that point I was already turning left into Smart Street and my motorcycle was on a lean to the left as I was making the turn. There was nothing I could do to avoid the gyprock.
57. at the time of the accident there was also a large four wheel drive vehicle parked on the left side of Dickinson Street close to the intersection and this was impairing my view into Smart Street in the direction that I was going to turn.
58. Prior to the accident I was concentrating on making sure there was no traffic coming from my right in Smart Street and I rolled towards the intersection. The view to the right is impacted by a fence line in Smart Street as well as cars that are parked on the side of the road.”
The Claimant attended John Hunter Hospital later that day. The Discharge Referral reported the following history:
“Riding motorcycle approx. 5 pm today
Slipped around the corner and fell onto right side
Waring all protective pads and appropriate pants/jacket.
Headstrike but wearing helmet.
Denies headache/vomiting
Denies neck pain
No LOC
Only pain in right shoulder tip
No other pain.”
He was diagnosed with a tear of the AC ligament of the right shoulder. The Claimant consulted his general practitioner Dr Daniher and physiotherapist Zoltan Marosszky from Newcastle Integrated Physio.
The Claimant reported the accident to the police two or three days later. The Police Event Report states:
”About 17.40hrs Wednesday 22 July male motorcycle rider was attempting a turn at the intersection of Dickinson and Smart street Charlestown when he slipped and fell onto his right side. The rider pushed his bike home before attending the John Hunter Hospital with minor injury to his right shoulder”.
The Insurer has provided a file note dates 18 January 2021 which states:
“Call made to listed number of the CL, matter discussed. CL advised that his view was obstructed by a 4wd car and the gradient of the road and there was no chance to see the debris beforehand. His main focus was om the oncoming traffic.
Jurisdiction email sent to the CL via email.”
The Insurer’s position
The Insurer asserts that section 5E of the Civil Liability Act, 2002, applies to motor accidents by operation of s 3B(2). Section 5E provides:
“In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”
I agree there is no dispute the Claimant bears the onus of establishing that his injury results from the motor accident.
The Insurer submits the Claimant must establish that the “motor accident” was the proximate cause of his injury.
Section 1.4 of the Act defines motor accident as follows:
“motor accident’ means an incident or accident involving the use or operation of a motor vehicle that caused the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
Section 1.4 of the Act defines fault as “negligence or any other tort”. Injured person is defined as a person who has suffered an injury in respect of the which the Act applies as provided by Division 1.3.
Division 1.3 includes s 1.9 which is in the following terms:
“(1) This Act ……applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”
The Insurer accepts that the Claimant was injured in an incident involving the use or operation of a motor vehicle that caused and resulted in injury. Accordingly, the Insurer accepts the Claimant has discharged the onus of establishing that his injury results from the motor accident.
The Insurer submits that ss 3.11 and 3.28 of the Act requires an assessment of “fault” of an injured person. The Insurer concedes it has the onus under ss 3.11 and 3.28 of the Act to establish that the Claimant was either wholly or mostly at fault for the motor accident.
The Insurer asserts the Claimant was at “fault” for the following reasons:
· Failing to see, slow down and take evasive action so as to avoid any hazards on the roadway (if accepted there was a hazard on the roadway noting it was not reported to John Hunter Hospital or the Police).
· Travelling too fast in the circumstances, given that the Claimant’s vision of the intersection was impeded by a 4WD on Dickinson Street and the fence line on Smart Street.
· Failing to sufficiently slow down and negotiate the bend appropriately.
· Failing to drive to the prevailing conditions.
· Failing to take reasonable and adequate care for his own safety.
· Failing to control his motorcycle so as to avoid an accident.
The Insurer submits that a finding that the Claimant’s injury was caused by “gyprock on the roadway” leads to the conclusion that the motor accident was not the proximate cause of the accident, that is, the accident was not caused and injury did not result from the use or operation of a motor vehicle. In this scenario, in the Insurer’s submission, the hazard on the road becomes the proximate cause of the injury removing the causal connection between the use or operation of a motor vehicle and the injury.
In summary, the Insurer submits I either find the Claimant was wholly at fault for the accident or I find that the accident was not caused and did not result from the use or operation of a motor vehicle. In both scenarios the Insurer submits the Claimant has no entitlement to ongoing statutory benefits.
Was the Claimant wholly or mostly at fault
Firstly, it is agreed the Claimant was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the Act.
The Insurer’s argument as to whether the incident was the proximate cause of the accident is predicated on reaching a conclusion that the Claimant was not at fault at all in the accident. I do not reach that conclusion.
Furthermore, in the recent decision of QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588 (Abberton) dealing with a single vehicle accident Cavanagh J stated as follows:
68. “Motor accident” is defined to mean an incident or accident involving the use or operation of a motor vehicle that caused the death or injury to a person in the circumstances as set out in the definition in s1.4 of the MAI Act. The definition of motor accident thus necessarily requires that there be the use or operation of a motor vehicle that causes the injury. If there is no accident involving the use or operation of a motor vehicle that causes the injury, then there is no motor accident as that term is defined.
69. In this matter there was only one motor vehicle. It was the motor vehicle being driven by the claimant. Irrespective of whether the claimant veered off the side of the road because of the presence of a kangaroo or for some other reason, the motor accident was a single vehicle motor accident. The only motor vehicle which was involved which could satisfy the definition of motor vehicle was the claimant’s motor vehicle. It was that motor vehicle which the claimant was driving to which the offence relates. It was that motor vehicle which was involved in the motor accident that caused the claimant’s injury.
70. The problem with the assessor’s approach is that he has, in effect, found that there was no motor accident. He did so by finding that the use of the claimant’s vehicle did not cause his injury[3]. He then went on to find that the claimant’s motor vehicle was not involved in the motor accident that caused his injury. A finding that a motor accident is a no-fault motor accident does not overcome the general restrictions on the application of the Act as set out in s 1.9 or the definition of “motor accident” as contained in s 1.4.
71. The hearing was conducted on the basis of submitting appearances. On the basis that the meaning of the term “was related to the motor accident” in s 3.37(1) is not in issue in these proceedings, I am only required to consider the very limited point relating to the assessor’s consideration of s 3.37(3)(b).
72. I accept the plaintiff’s submission that the only motor vehicle that was involved in the motor accident was the claimant’s motor vehicle which he was driving at the time of the commission of the offence.
73. Contrary to the assessor’s finding, it was that motor vehicle that was involved in the motor accident that caused the claimant’s injury. There was no other motor vehicle involved in the accident and thus no scope for the finding made by the assessor.
Applying the principle to be extracted from the decision of Cavanagh J in
Abberton there was a motor accident involving a single motor vehicle, whether or not the motor accident was caused by the driving of the Claimant or the gyprock on the road. The Claimant’s injury resulted from that motor accident.The next question is whether the Claimant was wholly at fault. Having regard to the presence of the gyprock on the roadway I do not find the Claimant wholly at fault. I am satisfied the accident would not have occurred in the absence of the gyprock on the roadway. It is clear from the Claimant’s statement that he lost control of the motorcycle when the motorcycle slid to the right after the back wheel travelled over the gyprock on the road. After sliding a short distance, the bike flicked over to the right when the rear wheel gained traction on the bitumen surface catapulting the Claimant onto the road.
The next question is whether the Claimant contributed at all to the accident. I find the accident occurred because of a combination of the gyprock on the roadway and the negligence of the Claimant.
In Podrebersek v Australian Iron and Steel (1985) 59 ALR 529 the High Court at [10] stated:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage …and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.”
Even though the Claimant was travelling at no more than 20 kmph at the time of the accident I find he was guilty of contributory negligence in that he:
(a) failed to keep a proper lookout for debris (in this case, gyprock) on the road;
(b) rode his bike at a speed which was excessive in circumstances where he was unable by reason of the parked 4WD vehicle to see the gyprock on the roadway in sufficient time to either stop or take evasive action, and
(c) failed to stop at the intersection with Smart Street to establish not only whether there was oncoming traffic travelling along Smart Street but to establish there was no barrier to the progress of his motorcycle as he made the left hand turn into Smart Street.
To be disentitled to statutory benefits under ss 3.11 and 3.29 of the Act it is necessary to find that the contributory negligence of the Claimant was more than 61%.
Even though I am satisfied the riding of the Claimant contributed to the accident I am also satisfied that the accident would not have occurred in the absence of the gyprock on the roadway. I do not find the contributory negligence of the Claimant to be more than 61%.
I have not been asked to make a finding as to the contributory negligence of the Claimant. However, having found that the Claimant did contribute to the accident and to avoid a further dispute I consider it appropriate to determine the degree of the Claimant’s contributory negligence. Doing the best I can in the absence of precise evidence such as an accident reconstruction report I am of the view the Claimant’s contributory negligence was in the region of 35%.
I find pursuant to ss 3.11 and 3.28 of the Act that the Claimant was neither wholly, nor mostly at fault for the accident.
Conclusion
For the purposes of ss 3.11 and 3.28 I find that the motor accident was not caused wholly or mostly by the fault of the Claimant.
As the Claimant is self-represented there are no legal costs to be assessed.
Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission
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