Baxter v AAI Limited t/as GIO - [2024] NSWPIC 643

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Baxter v AAI Limited t/as GIO [2024] NSWPIC 643
CLAIMANT:	Jamie Baxter
INSURER:	AAI Limited t/as GIO
MEMBER:	Michael Inglis
DATE OF DECISION:	20 November 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); culpability of claimant’s contributory negligence assessed at 20%; claimant was a front seat passenger in a motor vehicle which left the road and collided with a tree; claimant knew or ought to have known that the vehicle was fitted with airbags which were likely to be deployed on impact; expert evidence indicated that plaintiff's injuries to left ankle and hip were significantly aggravated by the fact that her feet were on the dashboard at the time of impact; claimant knew or ought to have known that by placing her feet on the dashboard, she was exposing herself to a foreseeable risk of injury which was not insignificant; Held – driver’s negligence/culpability major cause of injury suffered by the claimant, contributory negligence assessed at 20%; consideration of sections 5B and 5R of the Civil Liability Act 2002, Pennington v Norris Podbrebersek v Australian Iron & Steel Pty Ltd, Boral Bricks v Cosmidis (No. 2) and section 4.17 of the MAI Act.
DETERMINATIONS MADE:	CERTIFICATE Certificate issued under Division 7.6 of the Motor Accidents Injuries Act 2017 Responsibility for the injury suffered by the claimant is apportioned 80% to the insured driver and 20% to the claimant.

STATEMENT OF REASONS

BACKGROUND

Jamie Lisa Baxter, the claimant, is currently 34 years old. She was last employed from July 2019 until 20 November 2019 by CIV Force Traffic Management as a Traffic Controller. She says that she ceased that employment due to COVID19 and no further shifts being available.
In the early hours of 19 June 2020, the claimant says in a statement dated 28 August 2023 that she had spent the evening having drinks with a group of close friends. She had been drinking alcohol and used illicit substances that night. A friend, Mohammad Karnouh and the claimant intended travelling to see a friend of theirs, one George Haddad.
As the claimant was under the influence of alcohol and/or drugs and Mr Karnouh was not, it was decided that he would drive. The claimant was seated in the front passenger seat. They had arranged to meet Mr Haddad at Homebush. In her statement, the claimant says that she had her feet on the dashboard.
Whilst in transit, the vehicle left the road and struck a tree.
Following the accident, the claimant was conveyed to Concord Hospital with significant and high-energy orthopaedic injuries. She was diagnosed with a Gustilo Grade III fracture of the left ankle. She was diagnosed with a displaced intrascapular fracture of the right neck of the femur. She had multiple lacerations. She underwent emergency surgery in the form of debridement and open reduction and internal fixation of the left ankle. She underwent internal fixation of her right neck of the femur. She spent about…

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 Baxter v AAI Limited t/as GIO

Details

AGLC: Baxter v AAI Limited t/as GIO [2024] NSWPIC 643
Case: [2024] NSWPIC 643
Decision Date: 20 November 2024

CaseChat Overview and Summary

Baxter was a passenger in a vehicle driven by the defendant, AAI Limited trading as GIO, which left the road and collided with a tree. Baxter suffered injuries to his left ankle and hip, which he argued were significantly aggravated by his feet being on the dashboard at the time of the collision. AAI Limited contended that Baxter’s contributory negligence should be assessed at 20%, given that he knew or ought to have known that placing his feet on the dashboard exposed him to a foreseeable risk of injury.

The court was required to determine the extent of Baxter’s contributory negligence and whether this should be taken into account when assessing damages under the Motor Accident Injuries Act 2017. The legal issues included the applicability of sections 5B and 5R of the Civil Liability Act 2002, the precedent set by cases such as Pennington v Norris and Podbrebersek v Australian Iron & Steel Pty Ltd, and the provisions of section 4.17 of the MAI Act.

The court found that the driver’s negligence was the major cause of Baxter’s injuries, but his contributory negligence was assessed at 20%. This conclusion was reached by considering the expert evidence which indicated that Baxter’s injuries were significantly aggravated by his feet being on the dashboard, and that he knew or ought to have known that this action exposed him to a foreseeable risk of injury. The court also considered the relevant statutory provisions and case law, finding that Baxter’s contributory negligence should be reduced by 20% under the MAI Act.

The final orders of the court included a reduction in the damages awarded to Baxter by 20% to account for his contributory negligence, as assessed under the MAI Act. The court’s decision was influenced by the expert evidence, the statutory provisions, and relevant case law, which all pointed to Baxter’s actions contributing to the severity of his injuries.

Orders