Gillespie v AAI Limited t/as GIO - [2022] NSWPIC 383

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillespie v AAI Limited t/as GIO [2022] NSWPIC 383
CLAIMANT:	Peter Gillespie
INSURER:	AAI Limited t/as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	15 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the insurer is entitled to reduce weekly payments of statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act2017 (MAI Act); claimant riding an e-bicycle in Byron Bay to the left of the insured vehicle who turned left into the path of the claimant; whether reasonable for the claimant to travel to the left of traffic; whether the insured gave sufficient notice of intention; consideration of expert traffic engineer evidence; claim for exceptional costs pursuant to section 8.10(4) of the MAI Act; Held – no contributory negligence; claimant travelling reasonably and lawfully to the left of traffic; insured failed to give any or any reasonable intention to turn left; regulated legal costs awarded.
DETERMINATIONS MADE:	1. For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 31 December 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $7,524.20 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a dispute between the parties as to whether the insurer is entitled to reduce weekly payments of statutory benefits after 26 weeks on the basis of contributory negligence, pursuant to s 3.38 of the Motor Accident Injuries Act 2017 (MAI Act).

Mr Peter Gillespie (the claimant) is a 51-year-old male who suffered injury as a result of a motor vehicle accident that occurred on 1 July 2021 in Byron Bay, NSW.
The claimant was riding an electric bicycle along Jonson Street to the left of the insured vehicle when the insured vehicle made a left hand turn into Kingsley street into the path of the claimant.
A claim for statutory benefits was lodged with the insurer that was accepted.
In a notice dated 19 October 2021 the insurer accepted liability for statutory benefits after 26 weeks, however, indicated that payments of weekly statutory benefits would be reduced by 40% on account of the insurer’s assessment of contributory negligence.
The claimant, through his lawyers, lodged an application for internal review with the insurer on 20 October 2021.
On 5 November 2021 the insurer issued an internal review decision that set aside the original assessment of 40% contributory negligence and determined contributory negligence to be 15%.
The claimant’s lawyer subsequently lodged an application with the Personal Injury Commission (the Commission). The dispute has been allocated to me for determination.
The insurer alleges as part of the dispute before me that contributory negligence ought to be assessed between 25-30%. The…

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 383
Decision Date: 15 July 2022

CaseChat Overview and Summary

In Gillespie v AAI Limited t/as GIO, the plaintiff sought compensation from the defendant, an insurer, for injuries sustained in a motor accident. The plaintiff, riding an e-bicycle, was struck by the defendant’s insured vehicle, which turned left into the plaintiff’s path. The defendant argued that the plaintiff was contributorily negligent and sought to reduce the statutory benefits payable under section 3.38 of the Motor Accident Injuries Act 2017 (MAI Act). The plaintiff, in turn, argued that they were travelling reasonably and lawfully, and the defendant failed to give reasonable notice of the turn.

The court had to determine whether the plaintiff’s travel to the left of traffic was reasonable and lawful, and whether the defendant provided sufficient notice of their intention to turn left. The court examined expert traffic engineer evidence and considered the circumstances of the incident, including the plaintiff's actions and the defendant's driving behaviour. The court found that the plaintiff was not contributorily negligent, as they were travelling reasonably and lawfully to the left of traffic. Additionally, the court found that the defendant did not provide any notice of their intention to turn left, let alone reasonable notice.

As a result, the defendant’s claim for reduction of benefits on account of contributory negligence was dismissed. The court also considered the plaintiff's application for exceptional costs under section 8.10(4) of the MAI Act. The court found that the circumstances justified the award of regulated legal costs to the plaintiff. The court ordered the defendant to pay the full amount of statutory benefits without reduction and to pay the regulated legal costs incurred by the plaintiff.

Orders