Carulli v Allianz - [2021] NSWPIC 425

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Carulli v Allianz [2021] NSWPIC 425
CLAIMANT:	Anthony Carulli
INSURER:	Allianz
MEMBER:	Terence Stern
DATE OF DECISION:	29 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Mostly at fault decision; Held - not caused mostly by the fault of the injured person; lane filtering; claimant travelling under 30 kph; dispute as to excessive speed; regulation 151A of the Road Rules 2014.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 or section 3.28(2) the motor accident was not caused mostly by the fault of the injured person; 2. Effective Date: This determination takes effect on 29 September 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 and the Personal Injury Commission Regulation 2020 is $1826.18 inclusive of 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

At about 6:05pm on 28 August 2020 Anthony Carulli (the Claimant) was riding a motorcycle, a white Harley Davidson V-Rod registration BXD6, travelling from his workplace to his home in conditions of good visibility on the M-1 motorway near River Road, Revesby, in conditions of heavy traffic at peak hour when his motorcycle came into collision with the insured vehicle, a white Ford Ranger Utility registration DXV23S driven by one David Norman Hickey.
As a result of the collision the Claimant sustained injuries which are agreed were not minor.
The issue in dispute is that the Insurer has determined the Claimant was wholly at fault which the Claimant disputes.

CHRONOLOGY

I briefly set out the chronology:

10 August 1978 Birth of Claimant

28 August 2020 at 6:05 pm Subject accident

31 August 2020 Claimant’s Application for personal injury benefits

27 January 2021 Certificate of Determination of the Insurer that the Claimant was wholly at fault for the accident

31 March 2021 Determination on Internal Review maintaining that the Claimant was wholly at fault.

EVIDENCE

Statement of the Claimant 1 October 2020

The Claimant provided a Statement to David O’Neill on 1 October 2020 which I briefly summarise by reference to paragraph numbers where relevant to my determination:

[20]   At about 6:05pm 28 August 2020 – subject accident.
[21]   Was riding a Harley Davidson motorcycle.
[26]   Was travelling from workplace to home.
[28]   His view was clear.
[31]   Was not feeling tired.
[32]   Conditions were fine. The road was dry.
[33]   The visibility was good. The sun was setting but had not fully set.
[34]   At the location of the accident the M-5 runs east-west, and the closest side street was River Road, Revesby. At the occasion of the collision the M5 has three lanes in each direction marked by single broken lines.
[37]   The speed limit is 100 kph.
[38]   The roadway where the collision occurred was bitumen sealed, straight and flat.
[39]   Very familiar with the roadway where the collision occurred.
[40] Traffic was dense,…

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 Carulli v Allianz

Details

AGLC: Carulli v Allianz [2021] NSWPIC 425
Case: [2021] NSWPIC 425
Decision Date: 29 September 2021

CaseChat Overview and Summary

The matter of Carulli v Allianz was heard in the District Court of New South Wales, where the plaintiff, Carulli, sought damages for injuries sustained in a motor accident. The defendant, Allianz, the insurance company of the other driver involved, contested liability, arguing that the accident was primarily caused by the plaintiff's fault, specifically due to lane filtering and alleged excessive speed. The primary issue before the court was to determine whether the accident was predominantly caused by the fault of the plaintiff, and if so, whether this would absolve the defendant from liability.

The court had to examine the evidence and arguments presented by both parties to ascertain the extent of fault attributable to each driver. A key point of contention was the application of regulation 151A of the Road Rules 2014, which deals with lane filtering and sets conditions under which a motorcycle rider may filter through stationary or slow-moving traffic. The court considered the circumstances of the accident, the speed at which the plaintiff was travelling, and whether this complied with the regulatory speed limit for lane filtering. Additionally, the court had to weigh the evidence regarding the speed of the plaintiff's motorcycle and whether it was excessive in the given traffic conditions.

The court found that the accident was not predominantly caused by the plaintiff's fault. It determined that the plaintiff was lane filtering at a speed under 30 kph, which was permissible under regulation 151A. The court held that there was no evidence to suggest the plaintiff was driving excessively fast for the conditions, and hence, the defendant's contention of excessive speed was not substantiated. The court concluded that the primary cause of the accident was the defendant's failure to maintain a proper lookout, which absolved Allianz of any liability to pay damages to the plaintiff.

The court ordered that Allianz was not liable to pay any damages to the plaintiff. The plaintiff's claim was dismissed in its entirety.

Orders