Desmond v GIO - [2021] NSWPIC 437

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Desmond v GIO [2021] NSWPIC 437
CLAIMANT:	Craig Desmond
INSURER:	GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	26 October 2021
CATCHWORDS:	MOTOR ACCIDENTS - Whether the motor accident was caused mostly by the fault of the claimant under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act); cessation of statutory benefits after 26 weeks as claimant at fault; single vehicle accident; claimant the rider of a motorcycle that lost control on Bruxner Highway near Casino; claimant alleged he was not at fault and instead blamed state of the road; consideration of definition of motor accident under sections 1.4 and 1.9 of the MAI Act; Held- found claimant at fault and if it were the case that the condition of the road was the sole cause of the accident then the MAI Act would not apply.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 23 July 2021. 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0 inclusive of GST. 5. 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 dispute under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017. Namely, whether the insurer is entitled to cease payments of statutory benefits after 26 weeks due to the injured person being mostly at fault in respect of the motor accident.

Craig Desmond (the claimant) was injured in a single vehicle accident when he was the rider of a motorbike, with his wife as a pillion passenger. The claimant lodged a claim for statutory benefits with the insurer.
The claim for statutory benefits was accepted for the first 26 weeks. However, by way of notice dated 28 April 2021 the insurer denied liability for benefits beyond 26 weeks. This decision was made on the basis of the insurer’s view that the claimant was wholly at fault for the accident.
The claimant lodged an application for internal review. The internal review decision of 28 May 2021 affirmed the original decision.
The claimant subsequently lodged an application with the Personal Injury Commission and the matter has been allocated to me for determination.
I held a telephone conference on 6 August 2021. The claimant’s wife appeared on his behalf.
Both parties agreed that the matter be assessed on the papers and no further information/evidence would be relied upon.

Documents considered

I have considered the documents provided in the Application and the Reply and any further information provided by the parties.

Circumstances of accident

The Application for Personal Injury Benefits does not provide a…

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: [2021] NSWPIC 437
Decision Date: 26 October 2021

CaseChat Overview and Summary

In the case of Desmond v GIO, the claimant sought compensation for injuries sustained in a motor accident involving a single motorcycle on the Bruxner Highway near Casino. The dispute centred on whether the claimant was at fault under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act), and whether the statutory benefits should cease after 26 weeks due to the claimant being at fault. The claimant argued that the accident was caused by the condition of the road, and not by his actions. The court was required to determine if the claimant's fault contributed to the accident and if the road condition was the sole cause, in which case the MAI Act would not apply.

The court examined the definition of motor accident under sections 1.4 and 1.9 of the MAI Act, considering the evidence presented regarding the road conditions and the claimant's actions. The court found that the claimant was at fault, as the road condition was not the sole cause of the accident. Consequently, the claimant's argument that he was not at fault was rejected, and the statutory benefits were deemed to cease after 26 weeks in accordance with the MAI Act.

The court's reasoning was based on the evidence presented, which showed that the claimant lost control of the motorcycle, indicating a contributory fault on his part. The court concluded that if the road condition was the sole cause, the MAI Act would not apply, but since the claimant's actions also played a role in the accident, the statutory benefits were to cease after 26 weeks. The court's decision was based on the statutory provisions and the evidence provided, leading to a finding in favour of the respondent.

The court ordered that the statutory benefits for the claimant would cease after 26 weeks, as per the provisions of the MAI Act, given the finding that the claimant was at fault. The court did not find the road condition to be the sole cause of the accident, and therefore, the claimant's argument that he was not at fault was rejected. The decision was based on the statutory framework and the evidence presented in the case.

Orders