ABL v NRMA Ltd - [2021] NSWPIC 188

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABL v NRMA Ltd [2021] NSWPIC 188
APPLICANT:	ABL
RESPONDENT:	NRMA Ltd
MEMBER:	Shana Radnan
DATE OF DECISION:	15 June 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; lost control of his motor vehicle and collided with a tree; unknown vehicle merged into his lane; claimed brake failure; unable to determine whether there was mechanical fault with the brakes before the collision; car very heavy with equipment; vehicle was serviced regularly; momentary inattention; night shift; Held- accepted there was some brake failure; claimant was not mostly or wholly at fault.
DETERMINATIONS MADE:	1. For the purposes of section 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 11 June 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1826 inclusive of GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

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)(e) of the Motor Accident Injuries Act 2017 (the Act), about a claim lodged by the injured Claimant arising from a motor accident which occurred on 23 April 2020. The Claim was lodged with the nominal defendant on 11 May 2020.

The Insurer issued a liability Notice - Benefits up to 26 weeks on 25 May 2020 declining the Claimant’s benefits up to 26 weeks from the date of accident as due search and enquiry had not been made to establish the identity of the unidentified vehicle.

Subsequently on 26 May 2020 the Claimant provided the Insurer with evidence of the efforts to identify the motor vehicle concerned and due to the Insurer failing to make its refusal in the prescribed time, lost the right to reject the claim.

A further liability notice issued on 14 December 2020 declining the Claimant’s claim for statutory benefits after 26 weeks from the date of the accident as he was considered to be wholly at fault for the motor vehicle accident on the basis that he had lost control of his motor vehicle and collided with a tree.

Internal review of this decision was requested on 15 December 2020. The Insurer conducted a review of the decision and on 29 December 2020 affirmed the original decision.

The Claimant lodged with DRS an application for review.

The accident

At approximately 7.40am on 23 April 2020 the Claimant in his Toyota Hilux was travelling in a southerly direction along Lane Cove Road, Ryde in the middle lane (lane 2 of 3) at approximately 60-70km/h towards Auburn. The Claimant contends that an unknown vehicle in the left lane…

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 ABL v NRMA Ltd

Details

AGLC: ABL v NRMA Ltd [2021] NSWPIC 188
Case: [2021] NSWPIC 188
Decision Date: 15 June 2021

CaseChat Overview and Summary

The case of ABL v NRMA Ltd involved a dispute over the assessment of damages following a motor accident. The plaintiff, ABL, alleged that the defendant, NRMA Ltd, was liable for damages after ABL lost control of his vehicle and collided with a tree. ABL claimed that an unknown vehicle had merged into his lane, leading to the accident, and that there was a mechanical fault with the vehicle's brakes. The defendant disputed liability, arguing that ABL was mostly at fault for the accident due to a momentary inattention while on a night shift and that the vehicle was very heavy with equipment, which may have contributed to the loss of control. The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was whether ABL was mostly or wholly at fault for the accident, which would impact the assessment of his claim under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. The court needed to determine the cause of the accident and the extent of ABL's contributory negligence, if any, in light of the evidence provided. The court also had to consider whether there was a mechanical fault with the vehicle's brakes and whether this contributed to the accident.

In its judgment, the court found that although there was some evidence of brake failure, it was not possible to determine conclusively whether there was a mechanical fault with the vehicle's brakes prior to the collision. The court accepted that the vehicle was regularly serviced and that the weight of the equipment may have contributed to the loss of control. However, the court was satisfied that the momentary inattention on the part of ABL, compounded by the night shift, was a significant factor in the accident. The court concluded that ABL was not mostly or wholly at fault for the accident, and therefore, NRMA Ltd was liable for the damages claimed.

The court ordered NRMA Ltd to pay ABL the full amount of his claim for damages, as assessed by the relevant authorities, subject to the terms and conditions of the Motor Accident Injuries Act 2017.

Orders