Dutton v AAI Limited t/as GIO - [2022] NSWPIC 759

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION: Dutton v AAI Limited t/as GIO [2022] NSWPIC 759

CLAIMANT: Rodney Dutton

INSURER: AAI Limited t/as GIO

MEMBER: Bridie Nolan

DATE OF DECISION: 18 November 2022

CATCHWORDS:
MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant on mountain bike riding on footpath and crossing road at pedestrian island when struck by four-wheel-drive vehicle; whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person; whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor vehicle accident in accordance with section 3.38; claimant on disability support pension; no requirement to make assessment regarding section 3.11; Held – accident caused by the insured driver’s failure to keep a proper lookout when changing lanes and claimant’s inattention to vehicles on roadway; claimant failed to alight bicycle to cross the roadway; claimant’s contributory negligence at 55%; claimant not wholly and mostly at fault; insurer entitled to reduce the statutory benefits payable in respect of the motor accident by 55%.

DETERMINATIONS MADE:
Certificate

Issued under s 7.36(4) of the Motor Accident Injuries Act 2017

The findings of the assessment of this dispute are as follows:

1. For the purposes of s 3.28 the claimant is not mostly at fault.

2. For the purposes of s 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 55%.

3. Effective Date: This determination takes effect on 12 January 2021.

4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.

Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
This determination relates to an application for a miscellaneous claims assessment dispute arising from a Certificate of Determination issued in accordance with cl 7.29 of the Motor Accident Guidelines (Guidelines) wherein the insurer found that the claimant was mostly at fault for the subject motor vehicle accident.
The questions for me to determine are framed by Schedule 3, cl 3(e) and (g) of the Motor Accident Injuries Act 2017 (NSW) (the Act), which require me to determine whether for the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the injured person. It follows that if I am not so satisfied, I must determine whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor vehicle accident in accordance with s 3.38 of the Act for contributory negligence. As the claimant is on a disability support pension, I do not consider I need to engage on this miscellaneous claim assessment with the questions concomitant to s 3.11 of the Act.
Background
1.Rodney Dutton (the claimant) was involved in a motor vehicle accident on 12 January 2021.
2.He lodged an Application for Personal Injury Benefits on 3 February 2021. In his claim…

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 Dutton v AAI Limited t/as GIO

Details

AGLC: Dutton v AAI Limited t/as GIO [2022] NSWPIC 759
Case: [2022] NSWPIC 759
Decision Date: 18 November 2022

CaseChat Overview and Summary

The case of Dutton v AAI Limited t/as GIO involves a claim for benefits under the Motor Accident Injuries Act 2017. The claimant, Dutton, was riding a mountain bike on a footpath when he crossed a road at a pedestrian island and was struck by a four-wheel-drive vehicle. The dispute centres on whether the motor accident was caused mostly by Dutton's fault and, if so, whether the insurer, AAI Limited, is entitled to reduce the statutory benefits payable in respect of the accident.

The primary legal issue the court had to decide was whether Dutton's actions constituted the majority fault for the accident under section 3.28 of the Motor Accident Injuries Act 2017. Additionally, the court had to determine if the insurer was entitled to reduce the statutory benefits payable in accordance with section 3.38. The court considered whether Dutton's contributory negligence, which was assessed at 55%, meant that the accident was caused mostly by him.

In reaching its decision, the court found that the accident was caused by the insured driver’s failure to keep a proper lookout when changing lanes and Dutton's inattention to vehicles on the roadway. The court also noted that Dutton failed to alight from his bicycle to cross the roadway. The court assessed Dutton's contributory negligence at 55% for his failure to keep a proper lookout. However, the court held that Dutton was not wholly and mostly at fault, as his contributory negligence did not reach the threshold required under section 3.28. Therefore, the insurer was entitled to reduce the statutory benefits payable by 55% under section 3.38.

The court ordered that the insurer, AAI Limited, was entitled to reduce the statutory benefits payable in respect of the motor accident by 55%. The decision underscores the importance of both parties' conduct in determining fault and the consequent impact on the entitlement to statutory benefits under the Motor Accident Injuries Act 2017.

Orders