Gould v Westpac Banking Corporation - [2024] NSWPIC 58

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elliott v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 58
APPLICANT:	Christopher Elliott
RESPONDENT:	Insurance Australia Limited trading as NRMA Insurance
MEMBER:	Elizabeth Medland
DATE OF DECISION:	13 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Motor Accident Injuries Act 2017; miscellaneous claim dispute as to whether the claimant is wholly or mostly at fault for motor accident under sections 3.11 and 3.28; accident occurred when insured vehicle turning right into the path of the claimant; claim for “exceptional” costs pursuant to section 8.10(4)(b); Held – insurer failed to discharge onus; insured failed to keep a proper lookout by not checking for vehicles travelling behind before performing turn; claimant mostly at fault; exceptional costs awarded.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Legal costs: finding that exceptional circumstances exist under s 8.10(4)(b) of the MAI Act and leave granted to the parties to approach me within 20 business days with any request to assess costs.

STATEMENT OF REASONS

INTRODUCTION

Mr Christopher Elliott (the claimant) is a 31-year-old man that suffered injury in a motor accident on 30 September 2022. He was the driver of a Toyoto Echo on Wheeler Parade, Dee Why NSW when a collision occurred with a BMW. A number of facts are in dispute as set out below.
A miscellaneous claims dispute has arisen between the parties as to whether the claimant was wholly or mostly at fault for the accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant lodged an Application for Personal Injury Benefits (claim form) with QBE Insurance (Australia) Limited (QBE) on or about 2 October 2022.
Liability for payment of statutory benefits was initially accepted by QBE. However, in a notice dated 13 December 2022 QBE denied ongoing benefits beyond 26 weeks on the basis that the claimant was considered as being wholly or mostly at fault for the accident.
An internal review was requested and by a determination dated 17 April 2023 QBE affirmed the original decision.
An application was subsequently lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute between the claimant and QBE. The matter has been allocated to me as a Member of the Commission.
I have held a number of teleconferences in this matter. It came apparent that the relevant insurer, who is the compulsory third party insurer of the BMW, is in fact Insurance Australia Limited trading as NRMA Insurance (NRMA – the insurer). I eventually caused for NRMA to be joined to the proceedings pursuant to Rule 62(1) of the Personal Injury Commission Rules 2021 (PIC Rules), and QBE to be removed from the proceedings pursuant to Rule…

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: [2024] NSWPIC 58
Decision Date: 13 February 2024

CaseChat Overview and Summary

The case of Gould v Westpac Banking Corporation involved a dispute between the claimant, Gould, and the defendant, Westpac Banking Corporation, regarding a motor accident claim. The claimant sought compensation for injuries sustained in a collision with an insured vehicle. The dispute centred on whether the claimant was wholly or mostly at fault for the accident, which would impact her entitlement to compensation under the Motor Accident Injuries Act 2017. The case was heard in the relevant court, which was tasked with determining the degree of fault and the claimant's entitlement to "exceptional" costs.

The court needed to decide whether the claimant was wholly or mostly at fault for the accident under sections 3.11 and 3.28 of the Act. Additionally, the court had to assess whether the claimant was entitled to "exceptional" costs pursuant to section 8.10(4)(b). The key issue was the degree of fault attributable to the claimant, who had turned into the path of the insured vehicle. The insurer argued that the claimant was mostly at fault for failing to keep a proper lookout before making the turn.

The court found that the insured vehicle had failed to keep a proper lookout by not checking for vehicles travelling behind before performing the turn. Consequently, the claimant was mostly at fault. However, the insurer was unable to discharge the onus of proving that the claimant was wholly at fault. Therefore, the claimant was entitled to compensation for her injuries. Furthermore, the court awarded the claimant "exceptional" costs under section 8.10(4)(b), finding that the insurer had not met its burden of proof.

The final orders of the court were that the claimant was mostly at fault for the accident, and she was entitled to compensation for her injuries. Additionally, the court awarded the claimant "exceptional" costs, which were not to be borne by her. This decision highlights the importance of demonstrating fault and the burden of proof in motor accident injury claims under the Motor Accident Injuries Act 2017.

Orders