Fatoula v AAI Limited t/as AAMI
[2023] NSWPIC 624
•22 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | ||
| CITATION: | Fatoula v AAI Limited t/as AAMI [2023] NSWPIC 624 | |
| CLAIMANT: | Samer Fatoula | |
| INSURER: | AAMI | |
| MEMBER: | Bridie Nolan | |
| DATE OF DECISION: | 22 November 2023 | |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment matters; power conferred on the Commission under schedule 2, clause 3(d), (e) and (n); single vehicle motorcycle accident; motorcycle rear tyre skid on leaves and debris in residential area causing motor cycle to slide and capsize; whether claimant as the owner and driver of a single vehicle motor vehicle involved in an accident can be wholly or mostly “at fault” for the motor vehicle accident; whether insurer is entitled to cease the payment of statutory benefits under sections 3.11 and 3.28; statutory interpretation; meaning to be ascribed to the word “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 assessment of a dispute as to a miscellaneous claims assessment matter under Schedule 2, cl 3(d) and (e) of the Motor Accidents Injuries Act 2017 (NSW) (the Act). The dispute is whether the claimant, the owner and driver of the motorcycle he was riding at the time of the subject of accident, is wholly or mostly at fault for the motor vehicle accident, such that the insurer is entitled, under ss 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (NSW) (the Act), to cease the payment of statutory benefits.
As the reasons for my decision reveal, this application raises difficult questions or statutory interpretation as to the meaning to be ascribed to the word “fault “as it appears in ss 3.11 and 3.28 of the Act. On the question of whether power is conferred on the Personal Injury Commission (Commission) in the context of a miscellaneous claims assessment matter to determine such questions, the insurer submits that Schedule 2 of the Act “designates for the purposes of Chapter 7” of the Act what is a miscellaneous claims assessment matter. In its submission, the purpose of Schedule 2 is only to provide “jurisdiction” to the various types of decision-makers identified in Chapter 7. It submits that Schedule 2 is limited in its operation to Chapter 7 and does not extend to interpret the substantive parts of the legislation. Statutory interpretation is a necessary incident of the power conferred by Schedule 2. If there be any doubt as to the source of the power to do so, as it is not directly raised by either Schedule 2, cl 3(d) and (e), I consider that the issue of legislative interpretation in the context of a miscellaneous claims matter is conferred on the Commission by Schedule 2, cl 3(n) which confers power on the Commission to resolve any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule.
Accordingly, this application engages the power conferred on the Commission under Schedule 2, cl 3(d), (e) and (n) and concerns the resolution of the three miscellaneous claims assessment matters.
BACKGROUND
The claimant submitted an Application for Personal Injury Benefits Claim Form dated
3 September 2022 in respect of an accident which occurred on 28 August 2022 at 11:00pm on Marco Avenue, Revesby. The claimant nominated his motorcycle as the registration of the vehicle, he believed to be at fault. The claimant provided the following accident description:“Riding motorcycle down Marco Avenue, approached speed bump at approx. 30-35km per hour. After exiting speed bump, immediately saw debris from overhead tree on road. Pressed the back brake and it caused the bike to lose control and slide over the road.”
The claimant was transported to Bankstown-Lidcombe Hospital by Ambulance. The Ambulance report records:
“pt was riding motorcycle at reportedly low-moderate speed around suburban streets when he came over speed hump and felt bike give way beneath him…”
The Bankstown-Lidcombe Hospital operation report dated 29 August 2022, records that the claimant fell from his motorbike at “40–50 kilometres when hitting a bump on the road”.
The New South Wales Police report relevantly recorded that:
“The driver of the motorbike has come to the caution hump opposite to the Max Parker Leisure Centre and Aquatic centre at approximately 20KPH and has not realised that the caution hump was approaching and has attempted to slow down and by doing so the rider of the motor bike has fallen off.”
The claimant was assessed by WorkFocus Australia on 23 September 2022. Its report dated 4 October 2022 records that the claimant reported that he was travelling home and proceeded to drive over a speed bump. Soon after clearing the speed bump, he drove over debris on the road, travelling at 30kmph, leading to him to lose control and sliding over the road.
The insurer commissioned an investigation report, which largely does not advance the evidence relevant to the circumstances of the accident. Nevertheless, in a statement provided to the investigator, the claimant said, relevantly:
“14. I own a 2007 model Kawasaki Ninja ZX6R, 600cc motorcycle. It is yellow in colour with New South Wales registration number KBQ22. I am the owner of that motorcycle and have owned it for approximately four (4) weeks and since the day before I had the accident on it. I bought it on the 27 August 2022…
15. I only had that motor bike for one day before I had an accident on it.
…
17. I remember Sunday the 28 August 2022 at about 11.00pm the weather conditions were cold and dry night. It was night time and dark. I would describe the wind conditions as very still from what I remember. I would describe the street lighting as normal, I did not pay much attention to it because my headlights were working fine and I have a clear visor on my helmet, not tinted. The road was dry as it had not been raining. At the time of the accident it was not raining. The road was not slippery. The weather conditions did not have an impact on the accident I was involved in. There was not anything affecting my vision of the roadway in front of me before the accident.
18. The area where the accident occurred I describe as a single in each direction separated by unbroken lines. I was riding from Revesby to Panania. I don’t know if that is east, south, west or north. The lane width is just enough for one car. The speed limit is 50 kilometres per hour. The traffic volume low, there was hardly any traffic. The condition was normal and fine, it was good. There was a speed hump on the road where I had the accident. The road was straight and flat.
19. I am familiar with that part of the road because I ride or drive along it everyday. I have to drive along there every day to go to the shops or to go to work, for everything. There are no traffic lights at the location, there were no stop signs. There is a round about each side of the speed hump. When approaching the speed hump the round is about 200 meters. After the speed hump the other round about is about 300 metres away.
…
23. I was riding from the local shopping centre to see if it was open and going to back home. I was riding there to see if the shop was open. Woolworths was not open and I was on my home when the accident happened.
24. When I was approaching the speed hump I was going about 25 kilometers per hour. I slowed my motorbike down to about 18 kilometres per hour because I was going over a speed hump. My front wheel entered on to and over the speed hump. As soon as my back tyre entered on to the speed hump my back tyre slid to the right side and that is how the bike fell on to my left foot. In my opinion I think that the little tiny branches or something was on the road which caused the back tyre to slide out. The left-hand side of my bike collided with the road. I came off the bike and fell to the left. I was still holding the bike when it hit with the ground. The bike and I came down and hit the road on the speed hump and in the middle of my lane.
26. I think what caused the accident was low speed and debris from the trees around on the road. The street hasn’t been cleaned maybe.
27. My motor bike was either in second or third gear at the time of the collision. I was not accelerating or decelerating, neither. My motorcycle does not have traction control and it does not have adjustable rider modes for going slow or fast or in the wet.
28. I was not braking or accelerating, I was just riding at the same speed.
…
31. As a result of the accident my motorcycle come into contact with the roadway on top of the speed hump
…
43. Since the incident I have spoken to Police when they came to the hospital. I gave them a notebook statement and that is why they gave me an event number.
44. Regarding photos of my motorbike after the accident and at the scene, my son went the accident the next day and on the 29 August 2022. He took some photos of the bike at the scene. I can provide a copy of those photos my son took.”
The police notebook statement states that:
“I was travelling on Marco Avenue and I just got to that hump and just before that hump there was debris on the road. I hit the brakes and I slipped. I smashed my foot and my shoulder.”
SUBMISSIONS
Claimant’s submissions
The claimant submits that the subject motor accident was not caused by any fault on his part. He submits that the subject accident was not caused through inexperience unfamiliarity with riding in the area. He submitted that he rode or drove along Marco Avenue every day.
He submitted that on the date of the subject accident, he gradually slowed his motorbike down from about 25 kmph to 18 kmph because he was aware he was approaching the speed hump. He claims he was not speeding, nor did he suddenly forcefully apply his brakes, noting that there are no skid marks, and he was not charged with any offences such by the police.
He submits that the motorbike ran out of control and slipped to the right side after the front wheel had entered onto and over the speed bump and the back tyre had just entered the speed hump. He refers to the photo of the accident scene taken by his son on
29 August 2022, which depicts the road as littered with sticks and debris. He refers also to the photo of the accident taken at scene on 15 December 2022, in which also depicted debris on the road similar to that on the day of the subject accident.In response to the insurer’s reliance upon alleged inconsistencies in reporting of his speed as evidence that he was in fact travelling between 30 to 35kmph the claimant relies upon the fact that he told police at the accident scene that he was riding at approximately 20kmph. This is the most contemporaneous record, and he submits that great weight ought to attach to it. He notes that it was also recorded in Ambulance Report that the claimant was riding at low to moderate speed. The claimant also relies on his statement dated 3 November 2022 where he states that he was approaching the speed hump and was going about 25kmph before slowing down to about 18 kmph to go over the speed hump.
To the extent the Application for Personal Injury Benefits and the Workfocus Australia report record the claimant’s speed between 30 and 35kmph, the claimant makes two submissions:
(a)these speeds are consistent with the speeds e identified. He states he was travelling these speeds immediately before slowing down to approach the speed hump on Marco Avenue, and
(b)he was rigorously cross-examined about the representations made in the Application for Personal Injury Benefits. He submits that he gave credible evidence to the effect that he did not fill out the APIB. Rather, his son did while he was recovering from recent surgery and was disoriented from the effects of medication. Nor consider the document to be overly important. He was encouraged to fill it out by the hospital staff. A such he did not read or closely scrutinise what was represented in the Application for Personal Injury Benefits before signing it.
He submits that his evidence in cross-examination ought to be accepted. Common experience lends itself to the conclusion the evidence is credible. The claimant is not lawyer who would appreciate the importance of what was represented in the Application for Personal Injury Benefits, and it is perfectly plausible that he would not have filled out the form himself given the severity of his injuries and recent surgery.
The claimant submits that he does not know why the speed of 40-50km was recorded in the Final Report from Bankstown-Lidcombe Hospital. He does not recall saying it to the medical staff and this representation is inconsistent with all other evidence. He submits that no weight ought to attach to this report. Additionally, as a matter of procedural fairness, he submits that it ought to be noted that it is an established principle to treat representations made in clinical records with caution. By this I interpolate he is referring to usual caution to be applied to the histories given by a claimant to health professionals for the reasons set out in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], cited with approval in Mason v Demasi [2009] NSWCA 227 at [2].
The claimant is critical of the transcript of interview of Constable Daniel Hayes. Constable Hayes did not witness the accident. The record of interview represents Constable Hayes’ second hand reconstruction of events two months after the accident, without having conducted any tests to determine the claimant’s speed, nor did he have the qualifications to express an expert opinion in any event. Constable Hayes’ representation that the claimant was travelling between 45 and 55kmph is merely a guess. It is also based on an impermissible opinion of what might have occurred, even though his opinion is internally inconsistent with Constable Hayes’ own observations and the contemporaneous police records. At Q28, Constable Hayes confirms there was no evidence of braking or the bike ‘locking up’, yet he goes on to suggest a high-speed accident occurred whereby the claimant, due to inexperience, has ‘accidently locked up the brakes causing him to fall over and slide across the roadway’ and that he ‘panicked’ (Q40 and Q41).
The claimant points to his evidence in cross-examination that he had owned and ridden motorbikes in other countries and at friends/cousins’ places before becoming licensed to ride in May 2021. He was not a novice rider, nor was he unfamiliar with Marco Avenue. He had no reason to panic.
He submits that the physical evidence at the scene of the accident did not demonstrate any forceful or sudden braking, which is consistent with the his statements. Constable Hayes found no evidence of forceful braking (Q28), nor did Constable Johnson.
Insurer’s submissions
The insurer submits that I would not be satisfied that the claimant’s contemporaneous evidence as contained in his statement provided to NSW Police and his Application for Personal Injury Benefits are unreliable. Whilst the claimant may have been under the effects of pain relief medication, the insurer highlights that the versions provided to police and in the Application for Personal Injury Benefits were provided five days apart.
Those versions are consistent with each other insofar as the claimant indicated that he observed debris on the roadway and hit/pressed the brakes resulting in him losing control of his motorcycle. In the insurer’s submission, if the version provided to police was inaccurate due to the effects of medications, it would be unlikely that the claimant would provide a similar inaccurate version to his son five days later. Engaging briefly with this submission, at this point, that the insurer does not deal with the possibility that the claimant’s impairment, by reason of pain medication will presumably have subsisted at both times and could provide the relevant explanation for any perceived inconsistency.
The insurer submits that I would reject the claimant’s explanation that the inconsistencies in his evidence were due to a language barrier given that the claimant was able to provide evidence during the Assessment Conference without any difficulty and without the use of an interpreter. The claimant conceded that he speaks English well.
The insurer submits that I would be satisfied that:
(a) there was no debris on the roadway, but rather leaf matter being material that it commonly found on a roadway and that the claimant was on notice and ought to have been aware of its presence given his familiarity with the scene;
(b) the claimant was travelling at 30-35kmph which was in excess of the 25kmph speed advisory sign, and
(c) the claimant ‘hit the brakes’ (i.e. applied his brakes with force suddenly) resulting in him losing control of his motorcycle.
In supplementary submissions, requested by me at the assessment conference, the insurer engaged with the reasons for the decision in ABZ v AAI Limited t/as AAMI [2021] NSWPIC 246 (ABZ), decided prior to the 2022 amendments to the Act, to which I refer below. Particularly, supplementary submissions were sought as to a threshold issue of whether an owner driver of an insured vehicle engaged in a single vehicle motor accident could be wholly or mostly at fault under ss 3.11 and 3.28 of the Act. Accordingly, these reasons should be read in conjunction with that decision, the substance of which I do not set out here.
The insurer refers me to and relies upon the reasons given in two decisions of the Commission in Yankovich v AAI Limited t/as GIO [2022] NSWPIC 137 and Al Helou v AAI Limited t/as GIO [2022] NSWPIC 579 (Al Helou). Neither engages with my reasons in ABZ.
By its supplementary submissions, the insurer concedes that a person does not owe themselves an actionable duty of care which could found a suit in negligence in accordance with Whitfield v Melenewycz [2016] NSWCA 235; 92 NSWLR 624 (Whitfield). It submits that it does not necessarily follow however that a driver in a single vehicle accident cannot be guilty of negligence or contributory negligence. To construe the subject provisions of the Act to the contrary, it submits, is erroneous. It therefore invites me to reconsider the conclusions to which I came in ABZ with respect to the meaning of the word “fault” as contained in ss 3.11 and 3.28 of the Act. It invites me to conclude that the meaning to be ascribed to the expression “fault” in ss 3.11 and 3.28 of the Act is that clearly borrowed from ss 5 and 5R(2)(a) of the Civil Liability Act 2002 (NSW) (CLA) being “failure to exercise reasonable care and skill”.
In support of this approach the insurer relies on the decisions of Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 (Aziak) and Davis v Swift [2014] NSWCA 458; 69 MVR 375 (Davis) in the case of a “blameless” accident under Division 1A of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). It submits that the approach taken in Axiak was not challenged in Davis and was adopted in Nominal Defendant v Dowedeit [2016] NSWCA 332. Each of these cases dealt with the meaning of the word ‘fault’ under (the blameless accident provisions) in the MAC Act, which, it submits, was subsequently re-enacted in the Act. It is submitted that the re-enactment presumption applies to the interpretation of ‘fault’ in the Act and is consistent with favours the Insurer’s approach to the assessment of contributory negligence.
It submits that blameless or no-fault accidents are accidents not caused by the fault of anyone, including the injured driver. In those cases, the court found the approach should be to look at the claimant’s departure from the standard of care he or she is required to observe in the interests of his or her own safety.
It submits that the reasoning in ABZ that a driver of a vehicle involved in a single vehicle accident cannot be considered at “fault” is inconsistent with the objects of the Act and expands the cover of statutory benefits to drivers injured in single vehicle to a lifetime of benefits regardless of fault. Such construction, it submits, produces unfair and inconsistent entitlements to injured persons. It submits for illustrative purposes, if the claimant in this case negligently lost control and injured another person, he would be found to have been at “fault”.
It refers to the Second Reading Speech made 9 March 2017, introducing the Act, wherein the Minister stated:
“At the moment, at-fault drivers can only claim a maximum of $5,000 under the accident notification form. This includes drivers, for instance, who may have been injured due to a momentary lapse in concentration or being blinded by the sun. …. NCTP will extend coverage by providing a six-month safety net for all at-fault drivers.”
It submits that to construct an expansion of compulsory third party motor vehicle insurance coverage, to create a liability of the insurer to pay statutory benefits post 26 [sic] weeks to all drivers injured in single vehicle accidents regardless of “fault”, does not serve the objects of the Act.
REASONS
The following observations are relevant to an analysis of these submissions.
First, the term “fault”, defined by s 1.4 of the Act as “negligence or any other tort” is inapt to include the definition of negligence in the CLA: cf. AlHelou at [64] – [65]. True it is that s 5 of the CLA, within Division 1 of Pt 1A of the CLA, provides that, in Part 1A, “negligence means failure to exercise reasonable care and skill.” But as s 5A(1) of the CLA, also within Division 1 of Part 1A, provides, that Part 1A applies to “any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.” Thus, the reference in the CLA s 5(1) to liability “in negligence” includes an action beyond a claim in tort and includes claims under contract, under statutes such as the Australian Consumer Law and so on. For this reason, the definition in s 5 of the CLA does not neatly transpose the definition of “fault” housed in s 1.4 of the Act. And, in any event, I am unaware of any authority going to the approach to be taken to statutory construction that would permit the transposition of a definitional provision in earlier statute to override the clear legislative choice of a definition in subsequent legislation. Rather, the temporal approach to statutory construction would support the conclusion that the legislature had within its contemplation the definition of “negligence” in s 5 of the CLA at the time of promulgating the Act, and chose instead, the different definition of “fault” in s 1.4 the Act, qualified by clause “or any other tort” to denote the tortious concept of negligence.
Second, the term “fault” in ss 3.11 and 3.28 works to confer power on the insurer to avoid statutory benefit in circumstances where an injured person is wholly or mostly at fault. The principle relied upon in Aziak by reference to Kelly v The Queen [2004] HCA 12; 218 CLR 216 (Kelly) at [84] and [103] that statutory definitions are not a source of substantive power, and instead operate as an aid to the construction of the statute, although often approved, is not absolute. In Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; 256 CLR 437 at [61]-[62], French CJ, Kiefel, Bell and Nettle JJ described it as a “general principle” and said that it can be departed from where there is “a clear, contrary legislative intent”.
Third, the entitlement to statutory benefits created by Part 3 of the Act is a new creature, not formally known to the statutory regime providing for the scheme of compulsory third-party insurance in this State at the time that Aziak was decided. It is to be contrasted to the scheme as it was implemented by the MAC Act, which was held by McHugh J not to provide “a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle”: see Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568 at [43]. Accordingly, care must be taken in appropriating the conclusions emerging from case law ascribing meaning to the expression “fault” in an incongruent statutory context.
Fourth, originally framed, the equivalence of the “blameless” accident provisions about which Aziak speaks, called “no-fault motor accidents” housed in Part 5 to the Act, applied in respect of statutory benefits. However, the application of the Part to a claim for statutory benefits was removed by Motor Accidents and Workers Compensation Legislation Amendment Act 2022, Schedule 1.2[19]–[21] and [23], which amended Part 5 to make it clear the Part does not apply to the recovery of statutory benefits.
Of these amendments, in his second reading speech the Minister, Mr Victor Dominello, (NSW Legislative Assembly Hansard – 9 June 2021) said relevantly:
“Fourthly, schedule 1 amends provisions in part 5 of the Motor Accident Injuries Act 2017 to clarify that all individuals injured in a motor vehicle accident who are not wholly or mostly at fault and who have more than one minor injury are entitled to receive statutory benefits past 26 weeks. This includes drivers injured in no-fault accidents. Members may know that some ambiguities of the no-fault accident provisions were highlighted in a Supreme Court decision in AAI Limited v Singh. The Motor Accident Injuries Act 2017 currently contains several deeming provisions in part 5 that appear to deem fault on a person in circumstances where no driver is actually at fault for the motor accident. The proposed amendment addresses this potential injustice and ensures that a driver who, for example, swerved to avoid a kangaroo that suddenly jumped on the road and caused an accident is entitled to statutory benefits for loss of income up to two years, and treatment and care benefits for life if needed. This amendment will ensure the best outcome for injured people by improving clarity and fairness of access to compensation entitlements. It is both prudent and necessary to ensure that no driver is disadvantaged where they are not at fault for the accident.”
To the extent to which a statutory intention can be gleaned from these remarks it seems that the effect of the deeming provisions housed in the Part 5 were expressly intended not to apply to statutory benefits provisions. That is because the legislative intention was to provide for a period of cover for up to two years for loss of income, or treatment for life, in so far as it is reasonable and necessary, where no driver is actually at fault for the motor accident.
Indeed, it is significant, and should not, in my view, be discounted, that that the potential injustice that the amendments are designed to avoid directly engage the facts in Whitfield. In that case a motorcycle rider claimed damages under the “blameless accident” provisions under the MAC Act when a kangaroo jumped from the side of a remote unsealed country road and collided with the motorcycle he was riding. The plaintiff did not have time to avoid the kangaroo.
The Court of Appeal held that where the driver of a vehicle in a single vehicle accident is also the owner of the vehicle (which was not the case in Whitfield), the driver cannot rely on the “blameless accident” provisions under the MAC Act to deem fault on his or her own part, and then rely on his or her own “deemed fault” to attribute liability to his or her compulsory third party insurer. Meagher JA said in Whitfield relevantly at [31] that:
“Section 7B deems fault for the purposes of a claim which depends on the claimant establishing liability under the common law. It does not deem liability. Under the common law a driver cannot have a claim in negligence against him or herself: see in the context of an asserted subrogated claim, Simpson & Co v Thomson (1877) 3 App Cas 279.”
By the express incorporation of the Whitfield example, it would appear that it was intended that a single motor vehicle accident involving the owner of that motor vehicle, although not liable to himself or herself and thereby, not at fault, can by reason of these amendments, nonetheless qualify for statutory benefits, for two years for income loss, or for life, for treatment. Indeed, such an approach is consistent with the temporal approach to statutory construction to which I refer above. That is, the legislature would have in its contemplation at the time of promulgating the 2022 amendments to the Act decision such as Whitfield and the amendments can be understood to account for and address the statutory incongruities to which it gave rise.
It should perhaps be noted that the 2022 amendments were assented to on 16 June 2022 and apply to the subject accident.
Fifth, the effect of the insurer’s submissions as I understand them is to appropriate a different meaning to the expression “fault” as it appears within a single provision (either ss 3.11 or 3.28), depending on the circumstances of the subject accident. That is, when the provisions of s 3.38 of the Act, which expressly incorporate the principles attributed to common law and statutory contributory negligence as they have developed through the lens of an actionable duty of care (whereby fault is adjudicated by reference the degree to which each has departed from the standard of conduct required of them and the relative causal potency of each actor’s acts), can be engaged, they should be engaged, but when they cannot, the analysis to be applied is to assess whether the injured person caused the accident “by failing to take reasonable care and skill in all the circumstances”.
The insurer cites no authority for this unique approach to statutory construction. This is despite the fact that it is well settled as a matter of orthodox statutory construction that if the same word is used in multiple places in the same provision, statute or related legislation, Parliament intends the same words to be given the same meaning: see Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon [1975] HCA 41; 132 CLR 611 at 618; Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154; 145 FCR 523 at [14], [16]; Parmar v Minister for Immigration and Citizenship [2011] FCA 760; 195 FCR 186 at [18] unless the context otherwise demands: see Parmar at [18]; Huynh v Minister for Immigration and Border Protection [2015] FCA 701; 232 FCR 497 at [62] per Griffiths J. In this case, the statutory language nor the context demands that “fault” be given different meanings depending on the circumstances of the case.
Sixth, the High Court has cautioned against giving too much weight to the general purpose of legislation in the construction of particular provisions within a scheme. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [51], Hayne, Heydon, Crennan and Kiefel JJ (as the former Chief Justice then was) said:
“Fixing upon the general legislative purpose of raising revenue carried with it the danger that the text did not receive the attention it deserves. This danger was adverted to by Gleeson CJ in Carr v Western Australia when he said:
“[I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.”
Last, it is not the role of the Commission or indeed the court to emancipate the statutory language from its contextual constraints so that it is apt to grapple with a perceived unfairness. As the majority of the High Court (Kiefel CJ, Keane, Nettle and Edelman JJ) observed in Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54; 263 CLR 551 at [52], it is not the judicial (nor indeed administrative) function to construe a provision as if it had a meaning Parliament did not intend it to have in order to overcome unintended consequences, particularly, to avoid hypothetical potential consequences. There the majority said:
“The Court’s ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court’s function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court.” (citations omitted)
Nor is it the role the Commission or the court to presuppose that there is sitting behind the legislation no actuarial choice to extend statutory benefits in a manner seemingly inconsistent to the perceived safety net to which the insurer relies in its submissions. As the Motor Accidents Guidelines state (at cl 1.5) “[t]he premium framework recognises that this liability scheme, which is compulsory and privately underwritten, blends risk-based and community-rated approaches to assist with the object of affordability.”
Indeed, it is conceivable in a federal system such as the Commonwealth, that actuarial choices are made, based on the existence of third party insurance schemes in each of the States and Territories, which take into account relative burdens upon the federally funded health system and the ability of State insurance schemes to reinsure risks so as to relieve the fiscal burden occasioned to the Commonwealth thereby.
Consideration
Against these seven observations, and despite the force of the purposive arguments made by the insurer, the text and context of ss 3.11 and 3.28 of the Act do not accommodate the meaning it seeks to attribute to the word “fault”.
Section 1.9 of the Act is the “governing provision for the application of the Act”: see Axiak at [60]. It makes plain that the Act is not limited to injuries arising out of motor accidents where a driver is at fault. It casts the compensation net more broadly to provide that the Act applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
It then focuses the compensatory purpose of the Act into two distinct categories: statutory benefits, which is reminiscent of the safety net employed in worker’s compensation schemes; and, what is referred to as, common law damages.
The statutory intention regarding statutory benefits is clearly articulated by s 3.1 of the Act, viz. if death or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by Part 2. Section 3.2 of the Act provides that statutory benefits are payable, except as otherwise provided by Part 3, “whether or not the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use operation of the vehicle or even if the motor accident was caused by the fault of the person to whom statutory benefits are payable”. Section 3.2 also makes plain that statutory benefits are payable by the relevant insurer even if the motor accident concerned involved only one motor vehicle with motor accident insurance cover or if the accident concerned involved more than one motor vehicle – the insurer of the at-fault motor vehicle.
This is to be contrasted with the provisions of Part 4, Award of Damages, which s 4.1 of the Act provides applies to and in respect of an award of damages, that relates to the death of, or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use for operation of the vehicle. An assessment of damages under the scheme is predicated on an insurer’s liability for those damages in accordance with the common law of negligence. Further s 3.40 of the Act provides that if a claimant recovers damages in respect of the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use of operation of the vehicle, then the claimant ceases to be entitled to further statutory benefits and is required to pay back the statutory benefits paid to the person who paid those statutory benefits, thereby making plain that in circumstances where fault is ascertainable, statutory benefits are understood to be an extension of a claim for damages assessed through the prism of an actionable claim in negligence.
In this context, a person with no actionable claim in negligence against a tortfeasor would not be entitled to common law damages. Therefore, it does not seem so incongruous, given the legislative history, that a claimant for statutory benefits with no actionable claim in negligence is extended the benefit of the statutory benefits scheme for up to two years for loss of income, and for lifetime, should the circumstances warrant. This perceived incongruity applies in circumstances where a single motor vehicle is involved, including cases involving pedestrians. That is, for example, if an inebriated pedestrian runs onto a road, they have breached their duty of care owed by all road users to exercise reasonable care for other road users. In these circumstances, an owner driver who had not concomitantly breached their duty of care would not be “at fault”. Nevertheless, the scheme of statutory benefits would ensure that that driver, if injured, would be compensated, not by common law damages, but by statutory benefits.
Indeed, the statutory scheme of statutory benefits contains multiple incongruities with the traditional common law scheme of personal injury damages. For example, located within
ss 3.11 and 3.28 of the Act is the exception to the requirement to pay statutory benefits to those considered mostly at fault, which those provisions define as being 61% contributory negligence. However, that determination of 61% contributory negligence does not preclude a claim for damages. Not only by reason of s 3.44(1)(b) of the Act, which permits the re-agitation of the assessment contributory negligence, but also is not so constrained in an actionable claim for damages, where a claim for damages can nevertheless survive if contributory negligence is found to be greater than 61% and be determined afresh in the assessment of damages.It should also be noted that s 3.44(a)(a) and (b) of the Act makes it distinction between fault and contributory negligence rendering them as distinct concepts. This segregation lends constructional force to the proposition that “fault” denotes liability.
It is for these reasons, that I remain of the view that “fault” must be construed in ss 3.11 and 3.28 of the Act consistently, through the prism of the actionable tort of negligence such that an owner driver injured in a single motor accident cannot be “at fault”, and therefore cannot be wholly or mostly at fault. This is because the concept of contributory negligence ascribed by these provisions to the assessment of fault must be applied consistently in the provision itself. That is, the usual comparative analysis of culpability undertaken in an actionable claim in negligence.
It is, given the Act’s legislative history, and the statutory context, inapt to apply principles derived from perceived legislative incongruities in the context of blameless accident provisions, to the interpretation of the work to be done by the term “fault” in the framework of the statutory benefits provisions. It is not consistent with the objectives of the legislation to introduce, as the insurer contends, a constructional dissonance to the application of the “term” as housed the provisions based solely on the facts of each case, even if to not do so would produce hypothetical unintended consequences or the perception of unfairness.
Accordingly, I am not satisfied that the claimant was wholly or mostly at fault for the purposes of ss 3.11 and 3.28 of the Act.
Even if I be wrong in this threshold issue of construction, assuming the insurer’s submission to be correct, I am not satisfied that the claimant departed from the standard of care required of him, so as to amount to 61% contributory negligence as that term is understood in Axiak and Davis.
The contemporaneous evidence at the time of the accident records, the claimant was travelling at 20 kmph. This is the evidence which I consider most reliable and uninfected by any self-interest. I accept that the claimant was an experienced motorcyclist. I also accept that the claimant did encounter debris on the road as this is consistent with the contemporaneous photographs he has provided in support of his claim. I am not satisfied that the claimant could or should have done anything more than he did, which was to slow down to the speed limit being 25 kmph, so is to take any better or more reasonable precaution for his own safety in the circumstances. Finally, I am not satisfied that the claimant applied his brakes in a manner inconsistent with the standard of care to take reasonable care for his own safety. There is simply no reliable evidence to support that he did apply the brakes in a manner inconsistent with standard of reasonable care expected of him. Thus, I am not satisfied that the claimant in any way at all departed from the standard of reasonable care that he was required to take in the circumstances for his own safety. The insurer bears the onus of demonstrating that the claimant was wholly or mostly at fault: see Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909. I am not satisfied that it has discharged that onus.
CONCLUSION
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 makes an application for exceptional costs in the amount of $5,500, inclusive of GST.
Given that the application involves the assessment of three distinct miscellaneous claims assessment disputes, the claimant is entitled to the statutory regulated costs for each of those three disputes. I am satisfied that the complexity of the questions that have risen by reason of the matters I have addressed herein, together with the need for an oral hearing conducted by counsel, and the extensive cross examination and preparation of submissions by the parties that the claimant is entitled to the maximum regulated costs. This amount eclipses the $5,500 plus GST sought by way of exceptional costs.
I therefore award the claimant $6,332.70 inclusive of GST in 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);
· CLA;
· Interpretation Act 1987 (NSW);
· Motor Accident Injuries Regulation 2017 (NSW), and
· Motor Accident Guidelines.
0
19
0