Al-Kes-Butrus v NRMA

[2021] NSWPIC 510

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Al-Kes-Butrus v NRMA [2021] NSWPIC 510

CLAIMANT:

Miri Al-Kes-Butrus

INSURER:

NRMA

MEMBER:

Maurice Castagnet

DATE OF DECISION:

19 October 2021

CATCHWORDS:

MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the insurer is entitled to reduce statutory benefits payable for contributory negligence; section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act); Schedule 2, clause (3)(g) of the MAI Act; section 5R of the Civil Liability Act 2002; residential area – 50 kmph speed limit; insured driver made right-hand onto incorrect side of the road colliding with claimant pedestrian; apportionment of culpability; Podrebersek v Australian Iron and Steel considered; insured driver in breach of Road Rules 2014; claimant wearing ear buds - no causal consequence in the motor accident; Held – no contributory negligence on the part of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee.

DETERMINATIONS MADE:

My determination of the Miscellaneous claim is as follows:

1. For the purposes of s 3.38, the insurer is not entitled to reduce the statutory benefits payable to the claimant in respect of the motor accident.

2.     Effective Date: This decision takes effect from 2 November 2020.

3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,710 plus GST.

4.     A brief statement of my reasons is attached to this certificate

Reasons for Decision

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

INTRODUCTION

1. This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause (3)(g) of the Motor Accident Injuries Act 2017 (the MAI Act). Is the insurer entitled to reduce the statutory benefits payable to the claimant in accordance with s 3.38 of the MAI Act for contributory negligence?

BACKGROUND

1. The claimant is a 31-year-old woman who suffered significant injuries in a motor accident on 2 May 2020. The accident occurred while she was attempting to cross the road at the intersection of Waterhouse Street and Roony Street, Abbotsbury. The claimant was struck by the insured vehicle when it made a right-hand turn into Waterhouse Street from Roony Street.

2. On 19 May 2020, the claimant made an application for payment of personal injury benefits.

3. On 19 June 2020, the insurer accepted liability for payment of statutory benefits for the first 26 weeks. These benefits included weekly payments for loss of income and payments for treatment and care.

4. On 21 August 2020, the insurer notified the claimant that it accepted liability to continue payment of statutory benefits after 26 weeks on the basis that those benefits are reduced by 25% for contributory negligence on the part of the claimant in the motor accident.

5. On 13 September 2020, the claimant sought an internal review of the insurer’s decision. On 2 October 2020, the insurer issued a determination affirming its original decision.

6. On 29 October 2020, the claimant made an application to the Dispute Resolution Service (DRS) seeking a review of the insurer’s…