ABZ v AAI Limited t/as AAMI - [2021] NSWPIC 246

CERTIFICATE OF DETERMINATION OF MEMBER

Citation: ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246

APPLICANT: ABZ

RESPONDENT: AAI Limited t/as AAMI

Member: B. K. Nolan

DATE OF DECISION: 12 July 2021

CATCHWORDS:
MOTOR ACCIDENTS- Miscellaneous Claims Assessment; whether the insurer is entitled to refuse to pay the claimant statutory benefits beyond 26 weeks further to section 3.11 of the Motor Accident Injuries Act 2017 (2017 Act); Claimant alleged motor accident caused by bent sign; Insurer determined claimant was wholly at fault for the motor accident; claimant requested an internal review of the decision; insurer affirmed original decision; Claimant submits photographs and factual investigation report are of little probative value as they were taken of the replacement sign and not the original; insurer submits the claimant failed to keep a proper lookout and proceeded on the roadway when it was unsafe to do so colliding with the sign; Held- not satisfied that the insurer has discharged its burden in respect of its decision under section 3.11 of the 2017 Act; therefore insurer cannot refuse to pay the claimant’s statutory benefits; Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017.

Determinations made:
1. The insurer is not entitled to reduce the claimant’s statutory benefits further to section 3.11 of the Motor Accident Injuries Act 2017.

2. Effective Date: This determination takes effect on 8 April 2020.

3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,760 inclusive of GST.

Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background

This determination relates to a dispute as to whether the insurer is entitled to refuse to pay the claimant statutory benefits beyond 26 weeks further to section 3.11 of the Motor Accident Injuries Act 2017 (the 2017 Act): Schedule 3, clause 2(n) of the 2017 Act.
1.The claimant was involved in a motor vehicle accident on 8 April 2020. He lodged an application for personal injury benefits with the insurer on 16 April 2020.
2.In the statement made further to an interview with an insurance investigator on 24 June 2020, which was uncontradicted by the insurer, the claimant said relevantly, as follows.
3.He was travelling along Woodville Road, Guildford at the intersection of Rhodes Avenue. He was very familiar with the area as he had travelled there many times before.
4.There was a raised concrete median strip in the middle of Woodville Road, which travels through the intersection so that vehicles in Rhodes Avenue cannot turn right onto Woodville Road. There is a left turn only sign on the median strip of Woodville Road adjacent Rhodes Avenue.
5.The speed limit for the area is 70 kilometres.
6.The weather on the evening was fine and dry.

7.At the time of the incident, he was on his way to his cousin’s house. He had turned onto Woodville Road and travelled south. He had intended to continue all the way down Woodville Road until he reached…

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.

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Details

Case: [2021] NSWPIC 246
Decision Date: 12 July 2021

CaseChat Overview and Summary

The applicant, ABZ, sought a review of a decision by the respondent, AAI Limited trading as AAMI, to refuse to pay statutory benefits under the Motor Accident Injuries Act 2017. The dispute arose following a motor accident where ABZ claimed that the accident was caused by a bent sign, and the respondent determined that ABZ was wholly at fault. After an internal review upheld the original decision, ABZ sought judicial review. The central issue was whether the respondent was justified in refusing to pay statutory benefits beyond 26 weeks based on its assessment under section 3.11 of the 2017 Act.

The court examined whether the respondent had discharged its burden of proof in determining that ABZ was wholly at fault, thereby justifying the refusal to pay statutory benefits. ABZ argued that the photographs and investigation report provided by the respondent were of little value as they pertained to the replacement sign rather than the original sign that caused the accident. The respondent, on the other hand, maintained that ABZ failed to keep a proper lookout and proceeded on the roadway unsafely, resulting in the collision with the sign. The court found that the evidence presented by the respondent was insufficient to conclusively establish that ABZ was wholly at fault, thus the respondent had not met its burden of proof under section 3.11 of the 2017 Act.

As a result, the court ruled that the respondent could not refuse to pay statutory benefits to ABZ. The decision was in favour of ABZ, and the court ordered the respondent to pay ABZ's statutory benefits as per the Motor Accident Injuries Regulation 2017. Additionally, the court assessed ABZ's costs in accordance with the Motor Accident Injuries Regulation 2017, ordering the respondent to cover these costs.

Orders