ACV v The Nominal Defendant (No 2) - [2022] NSWPIC 634

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	ACV v The Nominal Defendant (No 2) [2022] NSWPIC 634
Claimant:	ACV
insurer:	The Nominal Defendant
Member:	Belinda Cassidy
DATE OF DECISION:	17 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for damages; separate assessment of liability; assessment undertaken on the papers; facts of accident and evidence included in reasons in earlier decision made during the course of the statutory benefits claim: ACV v The Nominal Defendant; accident occurred during a medical (psychotic) episode; claimant was owner and driver of only car involved and made a damages claim under the no-fault accident provisions of Part 5 of the 2017 Act; insurer disputed liability; Held – accident was a no-fault accident; section 5.2 of the 2017 Act deems fault when there is no fault but does not deem liability which requires proof of three elements, duty, breach of duty and loss; claimant owes no duty of care to himself; as no duty of care exists there can be no breach, actual or deemed; claimant has no action against himself; if he did he would be prevented by section 5.4 of the 2017 Act from recovering damages in any event; no costs awarded.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The insurer has no liability to pay any damages to the claimant. 2. No costs are awarded to the claimant.

STATEMENT OF REASONS

INTRODUCTION

On 12 August 2019 ACV(the claimant)[1] was driving his Commodore sedan in rural New South Wales when it left the road and collided with a power pole.
[1] Due to the sensitive nature 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 injured sustaining multiple fractures to his ribs, fractures to both lower limbs and a fractured left index finger.
The claimant made a claim for statutory benefits against the Nominal Defendant because the car he was driving was unregistered and therefore uninsured. Liability was denied by the insurer and the dispute about liability was heard and determined by me in earlier proceedings[2].
[2] My decision in that matter has been published as ACV v The Nominal Defendant [2022] NSWPIC 64.
On 18 February 2022 the claimant made a claim for damages against the Nominal Defendant. When the Nominal Defendant denied liability for the claim[3], the claimant sought an internal review of the decision. When the decision was affirmed by the internal reviewer, the claimant referred his claim to the Personal Injury Commission (the Commission) for assessment.
[3] The insurer’s initial liability notice was dated 31 March 2022 and a further notice was issued on 28 September 2022.
The proceedings were allocated to me, and I have held two teleconferences in the matter[4] before deciding to assess liability separately from quantum and to undertake the assessment on…

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: [2022] NSWPIC 634
Decision Date: 17 November 2022

CaseChat Overview and Summary

In the matter of ACV v The Nominal Defendant (No 2), the claimant sought damages under the Motor Accident Injuries Act 2017 (2017 Act) following an accident during a medical episode. The claimant, who was the sole occupant of the vehicle involved, contended that the accident was a no-fault incident, entitling them to compensation. The insurer, The Nominal Defendant, disputed the claim, asserting that the claimant could not be held liable for damages due to the nature of the accident. The case was heard and determined by the relevant court, which was tasked with deciding whether the claimant could recover damages despite being the sole party involved.

The court had to resolve several key legal issues, including whether the claimant could owe a duty of care to themselves in the context of a no-fault accident and whether the statutory provisions of the 2017 Act precluded the claimant from recovering damages against themselves. The central question was whether the statutory deeming of fault under section 5.2 of the 2017 Act could apply in a scenario where the claimant was the only party involved and, if so, whether this would affect their entitlement to damages. Additionally, the court needed to consider the implications of section 5.4 of the 2017 Act, which prevents claimants from recovering damages against themselves.

The court found that the accident was indeed a no-fault incident, as the claimant experienced a medical episode that incapacitated them at the time of the accident. However, it concluded that the claimant owed no duty of care to themselves, and therefore, there could be no breach of such a duty. Given that there was no duty owed, the court held that there could be no liability, actual or deemed, against the claimant. Furthermore, the court noted that even if the claimant could theoretically owe a duty to themselves, section 5.4 of the 2017 Act would prevent them from recovering damages. Consequently, the claimant's claim for damages was dismissed, and no costs were awarded.

Orders