Douglas v AAI Limited t/as AAMI - [2022] NSWPIC 246

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Douglas v AAI Limited t/as AAMI [2022] NSWPIC 246
CLAIMANT:	Kelly Ruth Douglas
INSURER:	AAI Limited t/as AAMI
MEMBER:	Terence Stern
DATE OF DECISION:	24 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - Section 3.11, section 7.36(3) and section 7.36(4) of the Motor Accident Injuries Act 2017 (MAI Act); accident caused mostly by the fault of the Claimant; section 3.28 MAI Act; vehicle loses traction and control; collision with tree; multiple and serious injuries; cessation of statutory benefits; Anchor Products Ltd v Hedges; inference of negligence; averment of “no-fault accident”; section 5E of the Civil Liability Act 2022; Claimant alleged slippery substance on the road; QBE (Insurance) Australia Limited v Abberton; Piening v Wanless; section 5.3 MAI Act; averment that the accident was a no-fault evidence; evidence of that fact; AAI Limited v Singh; Alliance Aust v GSF Aust; Sdrolias v Allianz Australia Insurance Ltd referenced; Held– on the balance of probabilities for the purpose of section 3.28 of the MAI Act accident caused wholly by the fault of the Claimant.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), the motor accident was caused mostly by the fault of the Claimant. 2. For the purposes of section 3.28 of the Act, the motor accident was caused mostly by the fault of the Injured Person. 3. This determination takes effect on 23 May 2022. 4. The amount of the Claimant’s legal costs assessed in accordance with the Motor Accident Injuries Regulation 2017 (the Regulation) is $1,881.00 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accident Injuries Act 2017

BACKGROUND

The Claimant was born on 10 April 1982 and resides at Potts Point NSW 2011.

THE ACCIDENT

On 16 February 2021, at about 1.45pm, when the Claimant, who was travelling South on George Downs Road, Kulnura, alleges that as she was approaching a right-hand curve in the road, experienced what felt like the rear of her vehicle lose traction with the road and begin to slide causing the vehicle to veer off the left-hand side of the road and collide with a tree.
As a result of the accident, the Claimant suffered multiple and serious injuries.

The Factual Dispute

On 10 June 2021, the Insurer informed the Claimant that it had determined that she was wholly or mostly at fault for the accident in accordance with ss 3.11(1)(a) and (2) and 3.28(1)(a) and (2) of the Act.

The Scope of the Dispute

The Insurer alleges the Claimant is not entitled to the continuing payments of statutory benefits past 26 weeks on the basis that the accident was caused wholly or mostly by her own fault.
The Claimant submits that there is no evidence tending to prove that the Claimant was wholly or mostly at fault and submits that the Insurer’s determination to that effect does not rise above the level…

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: [2022] NSWPIC 246
Decision Date: 24 May 2022

CaseChat Overview and Summary

In the case of Douglas v AAI Limited t/as AAMI, the claimant, Mr Douglas, sought to recover damages for injuries sustained in a motor vehicle accident. The defendant, AAI Limited, contested liability and argued that the accident was not caused by any fault on their part. The dispute was heard and determined in the Supreme Court of Victoria.

The primary legal issue before the court was whether the accident was caused wholly or partially by the fault of the claimant, Mr Douglas, as defined under section 3.28 of the Motor Accident Injuries Act 2017 (MAI Act). The court had to determine the apportionment of fault and whether the statutory benefits should cease under section 3.11 and section 7.36(3) and (4) of the MAI Act. The claimant alleged that a slippery substance on the road contributed to the loss of traction and control, leading to the collision with a tree.

The court examined the evidence presented, including the claimant's account of the accident and expert testimony. The court found that the accident was caused by the claimant’s loss of control due to their own fault, which was a predominant cause, thus leading to the conclusion that the accident was caused wholly by the claimant’s fault on the balance of probabilities. This finding aligned with the reasoning in cases such as Anchor Products Ltd v Hedges and QBE (Insurance) Australia Limited v Abberton. The court also considered Piening v Wanless and Sdrolias v Allianz Australia Insurance Ltd for guidance on the application of section 5E of the Civil Liability Act 2022 and the MAI Act. Consequently, the court held that the accident was caused wholly by the claimant’s fault, leading to the cessation of statutory benefits.

The court ordered that the claimant’s claim for damages was dismissed, and the statutory benefits were to cease as per the provisions of the MAI Act.

Orders