Evic v AAI Limited t/as GIO - [2023] NSWPIC 626

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

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

1. For the purposes of s 3.11 of the Motor Accident Injuries Act2017 (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.

2. 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.

3. Effective Date: This determination takes effect on 20 November 2022.

4. Legal Costs: The claimant is not entitled to costs.

5. A brief statement of my reasons for this determination are attached to this certificate.

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…

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: [2023] NSWPIC 626
Decision Date: 22 November 2023

CaseChat Overview and Summary

In the case of Evic v AAI Limited t/as GIO, the claimant sought to recover compensation for injuries sustained in an accident involving a stationary motorcycle in a residential carport. The primary dispute was whether the claimant could be deemed to be "at fault" under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017, and consequently, whether the accident was a result of failing to exercise reasonable care for his own safety. The court was tasked with interpreting the scope of "fault" in the context of a single motor vehicle accident and determining if the statutory provisions applied to such scenarios.

The legal issues revolved around the interpretation of "fault" within the statutory context and whether the provisions could apply to a single motor vehicle accident. Specifically, the court had to decide if a driver could be wholly or mostly "at fault" in an accident where no other party was involved, and whether the concept of exercising reasonable care for one's own safety could be considered in such a case. The claimant argued that the accident was a mere accident, without fault, while the insurer contended that the provisions applied, potentially reducing the claimant’s entitlement to compensation.

The court reasoned that for fault to be applicable under sections 3.11 and 3.28, there must be a circumstance where a duty of care is owed. It held that a motorist does not owe a duty of care to themselves, thus a single motor vehicle accident cannot be caused wholly or mostly by the fault of the driver. The court also found that the claimant did not fail to take reasonable care for his own safety, as the incident was an unforeseen accident. This reasoning aligned with the decision in Fatoula v AAI Limited t/as AAMI, reinforcing that the statutory provisions were not intended to apply in cases of single motor vehicle accidents.

The court concluded that the claimant’s injuries were the result of an accident without fault and ordered the insurer to pay the full amount of the claimant's damages, without any reduction under the contested sections.

Orders