ACV v The Nominal Defendant - [2022] NSWPIC 64

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ACV v The Nominal Defendant [2022] NSWPIC 64
CLAIMANT:	ACV
INSURER:	The Nominal Defendant
MEMBER:	Belinda Cassidy
DATE OF DECISION:	14 February 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; denial of liability for any statutory benefits by Nominal Defendant under section 3.36 of the MAI Act on the basis the claimant was the owner and driver of an uninsured vehicle and his injuries were caused wholly or mostly by his fault; single vehicle accident occurred when claimant drove deliberately at speed into a pole with the stated intention of committing suicide; Held - the claimant was not wholly or mostly at fault; medical evidence supported a finding that the claimant had long standing mental health issues and that the accident occurred when the claimant was in the midst of a medical (psychotic) episode; the blameless accident provisions in the Motor Accidents Compensation Act 1999, the no-fault provisions of the MAI Act and the cases of Davis v Swift, AAI Limited t/as GIO and Whitfield v Melenewycz considered.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. For the purposes of section 3.36 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. The amount of the claimant’s costs is assessed at $3,762.00 inclusive of GST. A statement setting out the Commission’s reasons for the assessment are included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 12 August 2019, in the early hours of the morning, the claimant[1] was at the wheel of his Commodore sedan when it left the road and collided with a pole.
[1] Due to the sensitive nature of some of the evidence in this matter steps have been taken to protect the claimant’s identity by not revealing his name or for example where he lives.
The claimant was seriously hurt sustaining amongst other injuries, multiple fractures to his ribs, right ankle and left foot fractures, fractures to both legs and a fractured left index finger.
The claimant made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act). He made his claim against NRMA as he thought that his long-term insurer was the insurer of his vehicle, but in time a claim was made against the Nominal Defendant.
The Nominal Defendant denied the claim and the claimant, who at that time did not have legal representation referred a dispute to the Personal Injury Commission (the Commission).
The matter was allocated to me and there have been four teleconferences held in the matter. At the last teleconference it was determined that the matter would be decided ‘on the papers’, that is on the evidence and submissions filed by the parties.

ISSUES IN DISPUTE

When the claimant first referred his matter to the Commission, there was a dispute about whether the…

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 ACV v The Nominal Defendant

Details

AGLC: ACV v The Nominal Defendant [2022] NSWPIC 64
Case: [2022] NSWPIC 64
Decision Date: 14 February 2022

CaseChat Overview and Summary

In the matter of ACV v The Nominal Defendant, the court was asked to determine whether the claimant, ACV, was entitled to receive statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act). The Nominal Defendant denied liability for any statutory benefits on the basis that ACV was the owner and driver of an uninsured vehicle and that his injuries were caused wholly or mostly by his fault. The dispute arose from a single vehicle accident where ACV deliberately drove at speed into a pole with the intention of committing suicide.

The court was required to decide whether ACV was wholly or mostly at fault for the accident. The court considered the provisions of the Motor Accident Compensation Act 1999 and the no-fault provisions of the MAI Act, as well as relevant case law. The court also took into account medical evidence that supported a finding that ACV had long standing mental health issues and that the accident occurred when he was in the midst of a medical (psychotic) episode.

The court found that ACV was not wholly or mostly at fault for the accident. The court accepted that ACV was experiencing a medical (psychotic) episode at the time of the accident and that his actions were not the result of conscious deliberation. The court also noted that the blameless accident provisions in the Motor Accident Compensation Act 1999 and the no-fault provisions of the MAI Act were intended to provide compensation to victims of motor accidents, regardless of fault. The court considered the cases of Davis v Swift, AAI Limited t/as GIO and Whitfield v Melenewycz and found that ACV was entitled to receive statutory benefits under the MAI Act.

The court ordered that the Nominal Defendant was liable to pay ACV the statutory benefits available under the MAI Act. The court also ordered that ACV was not wholly or mostly at fault for the accident and that his injuries were not caused by his own conscious volition. The court's decision provides guidance on the application of the no-fault provisions of the MAI Act and the interpretation of the term "conscious volition" in the context of motor accident claims.

Orders