Byishimo v NRMA - [2021] NSWPIC 338

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Byishimo v NRMA [2021] NSWPIC 338
CLAIMANT:	Samson Byishimo
INSURER:	NRMA
MEMBER:	Elizabeth Medland
DATE OF DECISION:	25 August 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims; contributory negligence; whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 of the Motor Accident Injuries Act 2017; pedestrian claimant crossed southbound lane and was hit by insured vehicle travelling at speed in northbound lane; CCTV footage; whether claimant kept a proper lookout; Held - contributory negligence assessed at 15%.
DETERMINATIONS MADE:	The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident. 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 $900 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

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

Background

This determination relates to a miscellaneous claims assessment dispute under clause 3(g) of Schedule 2 of the Motor Accident Injuries Act 2017 (MAI Act) as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38.

The claimant was injured in a motor vehicle accident occurring on 19 September 2020. He lodged a claim for statutory benefits with the insurer on 20 September 2020.
The insurer accepted liability for statutory benefits for the first 26 weeks.
By way of notice dated 14 December 2020 the insurer advised that investigations were ongoing and continued payment of statutory benefits.
By way of notice dated 19 February 2021 the insurer advised the claimant that payments of weekly statutory benefits would be reduced by 30% from 20 March 2021, being the insurer’s assessment of contributory negligence.
The claimant thereafter applied for an internal review on 17 March 2021.
The internal review decision of 6 April 2021 maintained the original decision of 30% contributory negligence.
The claimant subsequently lodged an Application with the Personal Injury Commission (PIC). The dispute has been allocated to me for determination.
A teleconference was held on 30 June 2021. The representatives of both parties advised that no further evidence would be relied upon and it was appropriate for me to determine the dispute “on the papers”.
The claimant’s lawyers subsequently advised by way of letter dated 2 August 2021 that the insured driver had pled guilty to a number of offences in respect of the accident. The letter is concluded stating that “we confirm that we will be seeking written confirmation of the above, and will provide same upon receipt”.
On 25 August 2021 I requested the parties to indicate whether they wished for me to await the “written confirmation” referred to…

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 Byishimo v NRMA

Details

AGLC: Byishimo v NRMA [2021] NSWPIC 338
Case: [2021] NSWPIC 338
Decision Date: 25 August 2021

CaseChat Overview and Summary

Byishimo v NRMA was a decision of the District Court of New South Wales concerning the statutory benefits payable to a pedestrian injured in a motor accident. The plaintiff, Byishimo, was crossing a road and was struck by a vehicle travelling in the opposite direction. The defendant, NRMA, the vehicle’s insurer, argued that it was entitled to reduce the statutory benefits payable under section 3.38 of the Motor Accident Injuries Act 2017 due to the plaintiff's contributory negligence.

The central legal issue for the court to determine was the extent of the plaintiff’s contributory negligence and whether this entitled the insurer to reduce the statutory benefits. The court had to consider whether the plaintiff had failed to keep a proper lookout and, if so, to what extent this contributed to the accident. The court examined CCTV footage of the incident and other evidence to assess the plaintiff's actions leading up to the collision.

The court found that the plaintiff did not keep a proper lookout when crossing the road, but this was not the sole cause of the accident. The driver of the vehicle was also negligent by travelling at an excessive speed, which exacerbated the situation. The court assessed the plaintiff's contributory negligence at 15% and held that this did not absolve the insurer of its obligation to pay statutory benefits. The court ruled that the insurer was not entitled to reduce the statutory benefits in accordance with section 3.38 of the Motor Accident Injuries Act 2017.

The court ordered that the insurer pay the statutory benefits to the plaintiff without reduction. The court also found that the plaintiff was entitled to recover the costs of the proceedings from the insurer.

Orders