BKV v AAI Limited t/as GIO - [2024] NSWPIC 325

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BKV v AAI Limited t/as GIO [2024] NSWPIC 325
CLAIMANT:	BKV
INSURER:	AAI Limited t/as GIO
MEMBER:	Terence O'Riain
DATE OF DECISION:	21 June 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Civil Liability Act 2002; negligence; breach of duty to road user; assessing witness evidence; excessive speed; failing to keep a proper lookout; contributory negligence; 2019 accident; damages agreed; claimant’s car turns across path of insured; “T-bone“ collision; claimant and insured driver’s different accounts; insurer submits claimant’s narrative is inconsistent and reconstruction; claimant perfect traffic record; claimant unconscious; claimant alleges road clear; insured alleges he could not avoid collision; claimant’s three versions before CCTV located shows position of cars before collision; driver and claimant inconsistent; CCTV treated with caution; claimant’s “practice” and “custom”; allowance made for claimant’s psychological condition effecting evidence; insured driver inconsistent on speed; insured consistent that he was too close to brake or avoid collision when claimant turns; claimant’s evidence unreliable; insured reliable apart from conceded points; appropriate speed; insured aware of traffic volume; rely on insured and objective evidence; insured driver’s speed probable contributor to accident; insured breached duty of care; high level of contributory negligence; Held – claimant is entitled to damages; breach of duty of care established; 50% deduction for contributory negligence; decision de-identified.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.36(1) of the Motor Accident Injuries Act2017 Damages assessment made in accordance with s 7.36 of the Motor Accident Injuries Act 2017 In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. On the issue of liability for the claim; the insured driver owed a duty of care to the claimant, and breached that duty of care, and the claimant’s contribution to the injury, loss, and damage was 50%. 2. The amount of damages assessed for the claim is $262,500. 3. The claimant’s costs in the matter are calculated inclusive of GST at $31,813.10 including GST. The disbursements are to be agreed between the parties. 4. Following rule 132 of the Personal Injury Commission Rules I direct that the decision will be de-identified. 5. The reasons are attached to this certificate.

REASONS
BACKGROUND

The background is based on agreed facts, unless stated otherwise.
At around 3:30pm on 19 October 2020 – outside 23 Stennett Road, Ingleburn NSW – BKV (the claimant), a sales representative, was injured in a motor vehicle accident.[1] Stennett Road is part of a light industry park.
[1] Summary based on Quantumcorp investigations report dated 15 August 2023 (R2).
The claimant commenced employment with the owner of the vehicle he was driving about five weeks before the accident.
He had existing health issues, which he was managing. These conditions did not affect his driving capacity.
The claimant was driving his employer’s car to the above premises for servicing. He was initially driving north along Stennett Road, then turning east into the driveway.
The sign posted speed limit was…

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

Case: [2024] NSWPIC 325
Decision Date: 21 June 2024

CaseChat Overview and Summary

In the matter of BKV v AAI Limited t/as GIO, the primary dispute revolves around a motor vehicle accident that occurred in 2019. The claimant, BKV, alleged that the insured driver of the opposing vehicle, AAI Limited t/as GIO, was negligent in causing a "T-bone" collision. The case was heard in the relevant court, which had to determine the respective liabilities of the parties under the Motor Accident Injuries Act 2017 (MAI Act) and the Civil Liability Act 2002. The court was tasked with assessing the credibility of the conflicting witness testimonies, evaluating the evidence provided by the parties, and determining the extent of contributory negligence, if any.

The central legal issues before the court involved whether the insured driver breached a duty of care to the claimant by allegedly driving at an excessive speed and failing to keep a proper lookout, leading to the collision. Additionally, the court had to ascertain the appropriate level of contributory negligence on the part of the claimant, if any. The claimant and the insured driver provided differing accounts of the accident, with the claimant asserting that the road was clear when the collision occurred and the insured driver claiming that he could not avoid the impact because the claimant's car turned across his path.

Upon reviewing the evidence, including the CCTV footage and the testimonies of both parties, the court concluded that the claimant's evidence was unreliable due to inconsistencies and the impact of the claimant's psychological condition. The court found the insured driver's account more reliable, except for certain points that were conceded. The court determined that the insured driver's speed was likely a contributing factor to the accident and that the insured breached their duty of care by not maintaining an appropriate speed given the traffic conditions. The court also found a high level of contributory negligence on the part of the claimant. Despite the contributory negligence, the court held that the claimant was entitled to damages, with a 50% deduction for contributory negligence. The decision was rendered with the identities of the parties de-identified to protect their privacy.

Orders