Evic v AAI Limited t/as GIO
[2023] NSWPIC 626
•22 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| CITATION: | Evic v AAI Limited t/as GIO [2023] NSWPIC 626 | |
| CLAIMANT: | John Evic | |
| INSURER: | GIO | |
| MEMBER: | Bridie Nolan | |
| DATE OF DECISION: | 22 November 2023 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment dispute; what constitutes “fault” for the purposes of sections 3.11 and 3.28; reasoning consistent with Fatoula v AAI Limited t/as AAMI; single motor vehicle owner driver accident; claimant injured while mounting stationary motorcycle and dislodging motorcycle foot peg at commencement of ride in residential carport; peg accidentally caught in motorist’s leather pants, causing motorcycle to capsize and injure motorist; whether the driver of a single motor vehicle can be wholly or mostly “at fault”; whether single motor vehicle accident can give rise to consideration of whether a driver was exercising reasonable care for his own safety; Held – fault for the purposes of sections 3.11 and 3.28 pertains to circumstances where a duty of care is owed; a motorist does not owe a duty of care to himself or herself; therefore a single motor vehicle accident could not be caused wholly or mostly by the fault of the single motor vehicle driver; in any event, the claimant did not fail to take reasonable care for his own safety; mere accident. | |
| DETERMINATIONS MADE: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017
| |
STATEMENT OF REASONS
INTRODUCTION
This is an application for the determination of a miscellaneous claims assessment dispute made pursuant to Schedule 2, cl 3(d) and (e) of the Motor Accident Injuries Act2017 (NSW) (the Act).
This decision needs to be read in conjunction with the decision I have issued in the matter of Samer Fatoula v GIO trading as AAMI, matter no. M10559214/23 dated 22 November 2023 (Fatoula). A copy of that decision is annexed to these reasons.
In that decision I deal with the threshold question of what constitutes “fault” for the purposes of ss 3.11 and 3.28 of the Act and how those provisions operate in circumstances, such as those which arise in the present matter: a single motor vehicle owner driver accident.
BACKGROUND
The claimant was involved in a motor accident on 20 November 2022 at about 6:30am on 109 Auburn Road, Birrong when his pant leg became caught in the foot peg of his motorbike, causing the claimant to fall from his motorbike. There is no dispute that the accident occurred in the course of the driving of the motorcycle.
The following description of the accident was provided by the claimant in the Application for Personal Injury Benefits dated 29 March 2023:
“After mounting my motorcycle, I lifted my leg to move the lever into neutral, when I moved my leg towards the ground. The foot pig went between my boots and riding pants, preventing the leg from reaching the ground. The bike fell to the left side, with the foot peg, crushing my left lower leg and trapping me under the bike. Luckily, my wife was also riding with me. On that day, I called loudly, she came and then woke my daughter and grandson to assist with lifting the bike off me.”
As a result of the accident, the claimant sustained a spiral fracture to his left leg, which the insurer concedes is a non-minor or non-threshold injury.
The insurer issued a notice denying liability for statutory benefits after 26 weeks as the claimant was found by it to be wholly at fault for the motor accident. The finding a fault was made on the basis that the insurer considered that the claimant failed to maintain control of his vehicle so as to avoid an accident.
In a chronological history provided under copy of letter, dated 4 April 2023, written in support of his reasons for the delay in lodging his claim for Personal Injury Benefits, the claimant said relevantly of the accident:
“I woke at 6 am, got dressed into my motorcycle protective gear, went into the backyard where the motorbike is parked covered under our large pergola. I removed the cover, put on my helmet and gloves and mounted the bike at approximately 6:30 am. I then powered the bike up, pushed the side stand up with my left foot and noted the bike was in gear, I then shifted the bike into neutral, lifted my left foot from the left foot peg to return it to the ground, when my foot peg [sic] was caught between my boots and riding pants causing the bike to topple onto me.
The bike fell on my left leg and trapped me under the lower left side of the bike. I was in excruciating pain, calling loudly for my wife who was waiting on the street in her riding gear as she was coming with me to Bulli for breakfast, and three other people I ride with every weekend (weather permitting). She came and saw me trapped under the bike. She then woke up my daughter and 12-year-old grandson who were able to lift the bike enough for me to drag my leg out from underneath the bike.”
SUBMISSIONS
In his application for an internal review of the insurer’s decision, the claimant said relevantly:
“I have been riding motorbikes for over 40 years. During this time, I have followed the same safe procedures for riding. These include wearing the appropriate safety equipment, which includes protective clothing, riding boots, helmet and gloves, all of which I was wearing when the accident occurred.
The accident occurred not due to my negligence, or as a result of being unsafe or careless. It was a freak occurrence whereby I lifted my left leg to change the gear lever (left foot mounted) to place the bike into a neutral gear so it could be started. This was done, but on returning my left foot to the ground, my riding pants caught the left foot peg between them and my riding boots stopping my leg from extending to the ground and that movement causing the bike to tilt to the left and then fall on top of my left leg breaking the tibia and fibula. I thereby refute that I was at fault, I had done nothing that I had not done before in preparing to start this or any other motorbike I have owned.
I did not set out to injure myself, who would?? I was looking forward to a lovely ride with my wife on that day. She was also in her riding gear at the time of the accident, but waiting for me to bring the bike out onto the street.”
The insurer submits that I would find that the claimant was wholly or mostly at fault for the accident and in accordance with ss 3.11 and 3.28 of the Act, there is no entitlement to statutory benefits beyond 26 weeks.
As I indicated to the insurer in the course of the preliminary teleconference in this matter, I was of the preliminary view that this motor vehicle accident was of the kind by discussed in my decision in ABZ v AAMI [2021] NSWPIC 246. The insurer in this matter is also the insurer in the proceedings of Fatoula, to which I refer above. In both this matter, and the matter of Fatoula it provided extensive written submissions in support of its contentions, which it repeats in large part in its written submissions to me in this matter.
It submits that the correct approach to an assessment of whether the claimant was wholly or mostly at fault involves an assessment of whether the facts support the conclusion that the claimant failed to exercise reasonable care and skill in all the circumstances. It involves consideration as to:
(a) whether the claimant’s actions or omissions contributed to the cause of the accident;
(b) whether they departed from the standard of care they should have observed in the interest of their own safety, and
(c) evaluation as to the extent of the departure.
REASONS
For the reasons and conclusions to which I came in the matter of Fatoula as to the threshold issue of “fault” in the context of the relevant provisions, ss 3.11 and 3.28 of the Act, I am not satisfied that the claimant was wholly or mostly at fault for the accident.
If I be wrong in my conclusions in Fatoula, I am not satisfied that the claimant failed to exercise reasonable care and skill in the operation of his motorcycle, for the reason set out by the insurer or at all. The reasons upon which the insurer relies are:
(a) failing to lift his foot from the foot peg with due care to ensure his pants did not catch on, or in the foot peg;
(b) failing to exercise caution when lifting his foot from the foot peg, and
(c) failing to take reasonable care, to avoid injury to himself.
The insurer submits that a reasonable person in the claimant’s position and exercising reasonable care skill would have avoided the accident in the injuries. It does not give any explanation as to how this might be so and fails to engage with the factual analysis required by its own submissions (see paragraph 11 herein) on the correct statutory task. It has thereby failed to discharge its onus (see Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909) to satisfy me that the claimant did fail to take all reasonable precautions necessary to ensure his own safety.
The material before me satisfies me that the claimant could not have taken any necessary precautions to avoid what was clearly an innocent accident.
CONCLUSIONS
Accordingly, I conclude that:
(a) for the purposes of s 3.11 of the Act (Cessation of weekly payments after 52 weeks to injured persons most at fault or with threshold injuries) the motor accident concerned was not caused wholly or mostly by the fault of the claimant, and
(b) for the purposes of s 3.28 of the Act (Cessation of statutory benefits after 52 weeks to injured adult persons most at fault or to injured persons with threshold injuries) or s 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was not caused wholly or mostly by the fault of the claimant.
COSTS
The claimant is self-represented and not entitled costs.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
· the Act;
· Motor Accidents and Workers Compensation Legislation Amendment Act 2022 No 25 (NSW);
· Civil Liability Act 2002 (NSW);
· Interpretation Act 1987 (NSW);
· Motor Accident Injuries Regulation 2017 (NSW), and
· Motor Accidents Guidelines.
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