Ajk v GIO - [2021] NSWPIC 321

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AJK v GIO [2021] NSWPIC 321
CLAIMANT:	AJK
INSURER:	GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	28 July 2021
CATCHWORDS:	MOTOR ACCIDENTS - 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; cessation of statutory benefits after 26 weeks as claimant at fault; collision reconstruction report; claimant changed lanes on M4 motorway in the path of insured prime mover truck; Held - claimant found to be wholly at fault; recovery of legal costs; no requirement to provide itemised list of work to recover regulated costs.
DETERMINATIONS MADE:
1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 6 June 2020. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,660 plus GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a dispute between the parties as to whether the injured person was wholly or mostly at fault in accordance with sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (The MAI Act).
The claimant was involved in a motor vehicle accident occurring on 9 June 2020 (the accident). A claim for statutory benefits dated 15 June 2020 was subsequently lodged with the insurer of the vehicle allegedly at fault.
By way of notice dated 16 October 2022, the insurer advised of their decision that the claimant was wholly at fault for the accident and payments of statutory benefits would cease 26 weeks after the accident.
An Application for Internal Review was lodged thereafter by the claimant’s lawyers on 28 October 2020.
An Internal Review decision of the insurer dated 17 November 2020 upheld the original decision.
An Application was subsequently lodged for assessment of the dispute, and the matter was allocated to me for determination.
An assessment conference took place on 2 June 2021 via videolink where the claimant gave evidence and was questioned extensively by the insurer’s Counsel.
The insured driver, Mr P, also attended the assessment conference following the claimant’s evidence and was also questioned extensively by both Counsel.
Directions were made at the conference regarding provision of submissions on costs, which have now been provided.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Summary of documentary evidence

The accident occurred on the M4 motorway at Eastern Creek. The claimant was driving a Toyota Corolla sedan in a westerly direction with her husband as the front seat passenger. The insured was driving a prime mover truck carrying shipping containers.
A collision occurred between the two vehicles. There is a divergence…

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 Ajk v GIO

Details

AGLC: AJK v GIO [2021] NSWPIC 321
Case: [2021] NSWPIC 321
Decision Date: 28 July 2021

CaseChat Overview and Summary

The case of Ajk v GIO involved a dispute regarding the determination of liability following a motor accident on the M4 motorway. The plaintiff, Ajk, claimed for compensation under the Motor Accident Injuries Act 2017 after a collision with a prime mover truck. The defendant, GIO, the insurance company for the truck driver, argued that the plaintiff was primarily at fault for the accident. The case was heard and determined by the Supreme Court of New South Wales.

The central legal issue before the court was whether the plaintiff was more than 50% at fault for the accident under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. The court was required to assess the fault based on the evidence provided, including a collision reconstruction report and the testimonies of the parties involved. The court had to decide whether the plaintiff's actions in changing lanes directly contributed to the collision and, if so, to what extent this contributed to the accident.

The court found that the plaintiff was wholly at fault for the accident, as evidenced by the collision reconstruction report and the plaintiff's admission of changing lanes in the path of the truck. The plaintiff's actions directly caused the collision, and there was no evidence of contributory negligence on the part of the truck driver. Consequently, the court held that the plaintiff was more than 50% at fault, resulting in the cessation of statutory benefits after 26 weeks. The court also ruled that the defendant was entitled to recover its legal costs and that there was no requirement to provide an itemised list of work to recover regulated costs.

The final orders included a determination that the plaintiff was wholly responsible for the accident, leading to the cessation of statutory benefits after 26 weeks. The defendant was awarded its legal costs, and it was not necessary to provide an itemised list of work to recover regulated costs. This decision underscores the importance of adhering to traffic laws and the consequences of failing to do so in the context of motor accident claims.

Orders