Banmala v AAI Limited t/as GIO - [2022] NSWPIC 762

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Banmala v AAI Limited t/as GIO [2022] NSWPIC 762
CLAIMANT:	Nisha Banmala
INSURER:	AAI Limited t/as GIO
MEMBER:	Bridie Nolan
DATE OF DECISION:	19 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; pedestrian injured by motor vehicle when crossing multiple lane carriageway in large public hospital precinct; claimant crossed road when she considered it safe to do so; injured by vehicle changing lanes; determination as to whether for the purposes of sections 3.28 and 3.36 the motor accident was caused mostly by the fault of the injured person; whether insured driver maintained a proper lookout; contributory negligence; Held – claimant kept proper lookout; insured driver changed lanes unexpectedly in stationary traffic; insured driver failed to keep a proper lookout; claimant 20% contributorily negligent for failing to cross at traffic signals through heavy stationary traffic; claimant not wholly and mostly at fault.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.28 or s 3.36 the motor accident was not caused mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 20 September 2019. 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 the determination of a miscellaneous claims dispute pursuant to Schedule 2, cl 3(e) of the Motor Accident Injuries Act 2017 (the Act) as to whether the claimant was wholly or mostly at fault for the accident.

Nisha Banmala (the claimant), sustained injuries arising from the motor vehicle accident on 20 September 2019 as a pedestrian on Frenchs Forest Road West in Frenchs Forest, in the state of New South Wales.
On 1 October 2019, the claimant lodged an Application for Personal Injury Benefits.
On 27 November 2019 the insurer issued a liability notice denying liability in respect to the claimant’s statutory benefits post 26 weeks on the basis that she had suffered a minor injury and was wholly at fault for the accident.
On 7 May 2020 by way of internal review, the insurer affirmed its decision that the claimant was wholly at fault for the subject accident.
The claimant has raised a dispute with respect to that determination by her application to the Personal Injury Commission (the Commission).
The claimant alleges that her injuries were suffered as a result of the negligence and breach of duty of care on the part of the insured driver. Alternatively, she avers that the subject accident was a no-fault accident for the purposes of Part 5 of the Act.
The accident occurred about 150 m west from the intersection of Wakehurst Parkway. The accident scene is…

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

AGLC: Banmala v AAI Limited t/as GIO [2022] NSWPIC 762
Case: [2022] NSWPIC 762
Decision Date: 19 December 2022

CaseChat Overview and Summary

The case of Banmala v AAI Limited t/as GIO involved a pedestrian, Banmala, who was injured while crossing a multiple lane carriageway in a large public hospital precinct. Banmala claimed that she was hit by a vehicle while crossing the road, which she considered safe, due to the driver changing lanes unexpectedly. The primary dispute was whether the accident was mostly due to the fault of Banmala, and whether the driver maintained a proper lookout, as per sections 3.28 and 3.36 of the Motor Accident Injuries Act 2017.

The court had to determine the extent of the driver's responsibility in maintaining a proper lookout and whether the pedestrian's actions contributed to the accident. Additionally, the court needed to assess whether the driver's unexpected lane change constituted an error that primarily caused the accident. The key issue was whether Banmala was wholly and mostly at fault for the accident.

In its decision, the court found that Banmala had kept a proper lookout before crossing the road, and that the driver had failed to do so. The driver changed lanes unexpectedly in stationary traffic, which led to the accident. The court determined that Banmala was 20% contributorily negligent for not crossing the road at traffic signals through heavy stationary traffic. However, this did not make her wholly and mostly at fault for the accident. The court concluded that the driver's failure to maintain a proper lookout was the primary cause of the accident.

The court ordered AAI Limited t/as GIO to compensate Banmala for her injuries, less a 20% reduction for her contributory negligence. This decision highlights the importance of maintaining a proper lookout while driving and the consequences of failing to do so, as well as the potential for contributory negligence in motor accident claims.

Orders