Desmond v GIO
[2021] NSWPIC 437
•26 October 2021
| 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 description of the accident, however there is a basic drawing depicting a pot hole on a road and a line further up with the words “ended up here.” The lack of description is entirely understandable given the situation of both the claimant and his wife dealing with injuries at the time of the claim being made.
The NSW Police Report which indicated that the police held the claimant as responsible for the accident by stating “Y” as to whether VEH1 was responsible for the accident. The crash summary details record the following:
“VEH1 is a 2018 Harley Motorcycle.
VEH1 was being ridden by a rider and passenger Eastbound on the Bruxner Highway towards Casino, NSW. The VEH1 was in a convoy of riders with this vehicle being in the middle.
As VEH1 was negotiating a turn at approx 60 km/h, the rear wheel hit a pot-hole in a bitumen, causing the rear wheel to jump off the road surface and the vehicle to lose traction. The driver has then lost control of the vehicle and has slid down the embankment causing both rider and passenger to be ejected. Both Rider and passenger sustained injuries as a result.”
The insurer obtained a factual investigation report from MJM Corporate Risk Services dated 30 March 2021.
Whilst not an issue for determination, I do take the opportunity to point out my view that the insurer breached its duty to act with good faith as prescribed by section 6.3(3)(b). This is because when advising the claimant of the denial of liability for statutory benefits post 26 weeks, the only document listed as being considered was the NSW Police Report, when the factual investigation report was presumably in the possession of the insurer. The insurer is obligated to provide the claimant with all relevant information when making a decision on a claim. In my view, it would be disingenuous for the insurer to suggest that the investigation report of was not relied upon when it made a decision to deny liability for the claim. In this regard, the insurer certainly relies on the report in the dispute before me. I would encourage the insurer in future to take seriously the duty to act in good faith as prescribed in section 6.3.
Factual investigators have provided a digital record of an interview conducted with Senior Constable Wehr.
The officer had attended the scene not long after the accident occurred and the claimant was being attended to by an ambulance crew.
The officer described the condition of the relevant roadway as “pretty good.” He described there being double white lines with one lane either side. The lines were double given that there was a corner that you could not see around.
The condition of the bitumen was described as fairly good by the officer. He then stated:
“I did hear from a person riding in the convoy that was riding behind him, he said that he saw the back wheel sort of lift up off the ground as if it was going over a pothole, which I had the same explanation from the rider. He was unable to explain what he’d hit, but he reckons that the back wheel came up and shifted, which caused him to go off course a bit and he had try and correct it. However, when I looked at the road, there was a slight patch on the road, but it wasn’t undulated I guess you could say. It just seemed to be sort of like a piece of road that had been flattened by a truck turning the corner, kind of thing. It wasn’t undulated though. It was – it was flat. It just looked a bit shiny, I guess.”
The officer stated that after talking to other riders and the pillion passenger he concluded that the claimant had not been negligent in his riding. In that regard, he was not speeding. He went on to state that there was nothing about the bike to suggest it was unroadworthy. The officer stated that “I just concluded that it was probably a – a mix of road surface and driver error.”
The transcript also includes a transcript of an interview the officer took with the claimant. The claimant stated that from what he remembered they came around a right hand bend and he remembered the bike bucking violently. A fellow rider told the claimant that he thinks there may have been a bad dip in the road where trucks go around corners and push the tar up. The claimant confirmed that the road was dry at the time and he was travelling at around 80 km/h with the speed limit being 100 km/h. The claimant also noted that he had been riding with his wife on the back for 31 years with no incident.
The claimant stated how a fellow rider described how it looked like the bike had just slipped up and the rear end just bounced in the air and came down sideways. The claimant stated how he when losing control could only think of saving his wife and he pulled the brakes up as hard as he could and aimed for the edge of the road so as to try and fall on a softer surface rather than bitumen.
Submissions
Claimant submissions
In support of his application the claimant has provided written submissions. It was explained that the description of accident in the form was not provided, other than a drawing, given the injuries suffered by both the claimant and his wife and the form was submitted with advice and help from social workers at the Gold Coast Hospital.
In respect of the NSW Police Report it was noted that the report included incorrect information such as the claimant and his wife were taken to Lismore Base Hospital when this was not the case. In addition, it was stated that the helmet was full faced when it was not.
Referring to the MJM investigation report, it was noted that the report highlighted the claimant’s exemplary driving/riding record for the past 30 years without incident. It was noted the impression was that the report supported the claimant not being at fault. The submissions highlight the fact that Senior Constable Wehr found no evidence to say the claimant was negligent as he was not speeding and there were no witnesses to say otherwise. It was also noted that the officer could not conclude that the accident happened due to driver error ‘in total.’
It is submitted that the impression formed is that with the investigation conducted in the claimant’s home by MJM, with the police putting the accident down to an unfortunate event due to road conditions, and given the claimant’s exemplary driving record the claimant would not be found at fault.
In conclusion, it is submitted that the road condition was the main cause of the accident and that the police actually attended the scene of the accident and were unable to conclude that the accident occurred due to driver error ‘in total’ then it does not follow that the insurer hold the claimant at fault.
Insurer submissions
The insurer states that its primary submission is that the claimant was the only person involved in the use of operation of the motor vehicle that caused his injury and as such he is wholly at fault for the accident. It is further stated that the claimant was wholly at fault due to:
(a) riding over an uneven road surface;
(b) failing to keep a proper lookout for hazards on the roadway;
(c) failing to take evasive action so as to avoid hazards on the roadway;
(d) failing to control his motorbike so as to avoid injury
(e) failing to take any, or any reasonable care for this own safety, and
(f) failing to take any or any reasonable care to avoid injury.
The insurer refers to the fact that the police determined that driver error was a factor in the cause of the accident.
The case of Manley v Alexander [2005] HCA 79 is relied upon by the insurer, specifically at 12 were the majority observed:
“…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
The insurer then goes on to submit that the claimant had a duty to himself and the pillion passenger to avoid any hazards on the roadway. It is further described as “significant” that the claimant was the only rider in a convoy of motorbike riders that lost control and sustained injury.
It is then submitted that I would be satisfied the claimant’s injuries were caused by and resulted from his use and operation of the vehicle.
The submissions then go on to deal with a possible finding that the accident was caused by a “pothole” and not the fault of the claimant. It is submitted that sections 1.4 and 1.9 of the Motor Accident Injuries Act (MAI Act) require that the injury must be “a result of and caused by the use or operation of the motor vehicle” and not some other factor.
It is then submitted that if I were to find that the injuries were caused by the negligent actions of a third party in failing to maintain the roadway, then the injuries were not caused by a motor vehicle accident. Essentially, it is submitted that the accident would then not meet the definition of “motor accident” under the MAI Act and it would follow that the claimant and his pillion passenger would not be indemnified by the CTP policy, and accordingly, have no entitlement to statutory benefits.
Reasons
The argument that underpins the claimant’s application is that the accident was caused by the condition of the roadway and was not due to his own fault.
Whilst there is a suggestion of the motorbike wheel coming into contact with a pothole, this appears to be mere conjecture. From the transcript of interview with Senior Constable Wehr this suggestion appears to have originated from a fellow motorbike rider who stated that the rear wheel moved “as if” it had hit a pothole.
There is nothing before me that identifies any pothole. Instead, the police officer noticed a patch on the roadway that was “shiny” but was not undulated.
Based upon the evidence before me, I find that the most likely scenario is that the accident was caused by the claimant riding the motorbike around a corner and on a smooth area of the roadway, as described by Senior Constable Wehr, causing the vehicle to lose control.
I find that that this situation arose due to the fault of the claimant. I accept the insurer’s submission that the claimant must keep a proper lookout for hazards. The claimant must ride the motorbike according to prevailing conditions. Whilst the NSW Police did not find evidence sufficient for a charge of negligent driving, this is not the test that I must apply.
I also agree with the submission of the insurer that if the accident was not the fault of the claimant, and instead was entirely due to the condition of the roadway (as submitted by the claimant), then the accident would not meet the definition of ‘motor accident’ in section 1.4 of the MAI Act or otherwise would fall outside the scope of the MAI Act as set out in section 1.9. In this regard, in such scenario whilst the injury would result from the use or operation of a motor vehicle it would not be as a ‘result of’ the driving of the vehicle. In such situation, the MAI Act would not apply and there would, in turn, be no entitlement to statutory benefits. Instead, there may exist an avenue to claim damages under the relevant civil liability legislation.
Costs
The claimant is not legally represented and I therefore make no allowance for costs.
Legislation
In making my decision I have considered the following legislation and guidelines:
• Motor Accident Injuries Act 2017 (NSW) (the MAI Act)
Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission
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