Alonso v Allianz Australia Insurance Limited - [2022] NSWPIC 651

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Alonso v Allianz Australia Insurance Limited [2022] NSWPIC 651
CLAIMANT:	David Alonso
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Bridie Nolan
DATE OF DECISION:	18 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; single motor vehicle accident; vehicle aquaplaned when negotiating turn on freeway in wet weather; vehicle collided with guard railing causing injury to claimant driver and passenger; whether the motor accident was caused by the fault of another person; consideration of fault in the context of sections 3.11 and 3.28; tortious liability; whether duty of care owed to passenger can constitute “fault”; whether assessment is required where claimant departed from the standard of care for his own safety; Axiak v Ingram referred to; Held – claimant driver’s speed on negotiating turn not excessive; aquaplaning caused by a build-up of water on the road causing vehicle to no longer be capable of steering and braking; not satisfied that the accident was caused by the claimant’s failure to slow down; the motor accident was not caused by the fault of another person.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act* 2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. Effective Date: This determination takes effect on 20 March 2021. 3. Legal Costs:** The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,980 inclusive of GST.

Reasons for Decision

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

Background

This determination relates to an application for determination of a miscellaneous claims dispute as to whether for the purposes of s 3.11, the motor accident concerned was caused by the fault of another person: Schedule 2(3)(d) of the Motor Accidents Injuries Act 2017 (NSW) (the Act).

The claimant was involved in a single motor vehicle accident on 20 March 2021 at approximately 10:40 pm on the Pacific Highway, when he lost control of his vehicle as he negotiated a bend/curve in the road.
On 13 July 2021, the claimant was provided with a “Liability Notice – Benefits after 26 Weeks” in which he was deemed wholly at fault in relation to the subject motor vehicle accident.
On 3 August 2021 the claimant lodged an internal review application requesting that the insurer review the matter as the claimant contended, he was not at fault, nor did he contribute to any negligent act that caused the accident. The claimant submitted that the accident fell to be considered under a no-fault motor accident primarily due to the severe weather conditions at the time of the accident.
By a Certificate of Determination dated 24 August 2021 the insurer affirmed its original decision finding that the claimant was wholly at fault for the accident.
The claimant submits that on the evening of the subject accident the weather…

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 Alonso v Allianz Australia Insurance Limited

Details

AGLC: Alonso v Allianz Australia Insurance Limited [2022] NSWPIC 651
Case: [2022] NSWPIC 651
Decision Date: 18 November 2022

CaseChat Overview and Summary

Alonso sued Allianz Australia Insurance Limited following an accident in which the vehicle he was driving aquaplaned, collided with a guard rail, and he and his passenger were injured. Allianz sought to have the injuries assessed as not being caused by the fault of another person under the Motor Accident Injuries Act 2017. The court was required to determine whether the accident was caused by the fault of another person, specifically whether the aquaplaning was due to the driver’s fault and whether the passenger owed a duty of care to the driver. The court considered the legislative provisions, particularly sections 3.11 and 3.28, which deal with fault in the context of motor accident injuries.

The court found that the claimant’s speed was not excessive and that the aquaplaning was due to a build-up of water on the road that caused the vehicle to no longer be steerable or brakeable. The court was not satisfied that the accident was caused by the claimant’s failure to slow down. The court held that the motor accident was not caused by the fault of another person as defined by the statute. The court found that the driver's departure from the standard of care for his own safety did not constitute fault under the Act.

The court further found that the passenger did not owe a duty of care to the driver and therefore could not be considered at fault. The court rejected Allianz’s argument that the assessment of fault should take into account the passenger's potential duty of care. The court concluded that the injuries were caused by the motor accident and were not caused by the fault of another person within the meaning of the Act. The claimant was entitled to compensation for his injuries.

Orders