Grinter v Cic Allianz Insurance Limited - [2024] NSWPIC 267

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grinter v CIC Allianz Insurance Limited [2024] NSWPIC 267
CLAIMANT:	Grant Grinter
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Susan McTegg
DATE OF DECISION:	23 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Motor Accident Injuries Regulations 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained serious injury in a motor accident on 8 July 2021; claimant was driving a vehicle which collided with the rear of a large trailer being towed by a truck; in dispute was whether the rear and side lights of the truck and trailer were on shortly before and at the time of impact; Held – on balance of probabilities lights were working on the trailer at the time of the accident; the insured truck would have been visible by the claimant at a distance of 113 metres providing sufficient time to either brake or steer his vehicle to avoid collision; the claimant ran into the back of the insured truck and trailer because he was not keeping a proper lookout; claimant was wholly at fault for accident; costs in favour of the claimant assessed on the basis of exceptional circumstances under section 8.10(4); application by insurer for an order under section 8.3(4) that it be permitted to pay legal costs to its lawyers outside of costs permitted by the Regulations on the basis of exceptional circumstances; application opposed by claimant; AAI Limited T/as GIO v Moon only available judicial guidance; in exercising discretion for insurer to pay legal costs to its lawyers in excess of the regulated amount appropriate yardstick provided where it has been found that exceptional circumstances exist to justify an order in favour of the claimant under section 8.10(4); where the insurer bears the evidentiary onus.
DETERMINATIONS MADE:	CERTIFICATE Issued under section 7.36 of the Motor Accident Injuries Act 2017 ( the MAI Act) The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s costs incurred in connection with the claim pursuant to section 8.10(4)(b) of the MAI Act in the sum of $26,510 inclusive of GST. 4. The insurer is permitted to pay its lawyers reasonable costs for the legal services provided in relation to the claim in excess of the costs permitted by the MAI Regulations. 5. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

Grant Grinter (the claimant) was involved in a motor accident on 8 July 2021. He was driving down the Pacific Highway a little south of Ballina when he collided with the rear of a large trailer being towed by…

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 267
Decision Date: 23 May 2024

CaseChat Overview and Summary

In the case of Grinter v Cic Allianz Insurance Limited, the court was tasked with determining the liability of the claimant in a motor accident that occurred on 8 July 2021. The claimant, who sustained serious injury, collided with the rear of a large trailer being towed by a truck. The central dispute was whether the rear and side lights of the truck and trailer were functioning properly at the time of the accident. The court had to decide if the claimant was wholly or mostly at fault under the Motor Accident Injuries Act 2017 and the Motor Accident Injuries Regulations 2017.

The legal issues before the court included whether the lights on the truck and trailer were operational prior to and at the time of the collision, and if the claimant was negligent in failing to maintain a proper lookout. The court concluded that, on the balance of probabilities, the lights were working, and the claimant's failure to observe the truck and trailer constituted the primary cause of the accident. The claimant was therefore deemed wholly at fault. Additionally, the court assessed costs in favour of the claimant under section 8.10(4) due to exceptional circumstances, while also addressing the insurer's application to pay legal costs exceeding the regulated amount.

The insurer sought to pay its lawyers costs beyond the regulated limit, arguing exceptional circumstances justified such an order. The claimant opposed this application, referencing the case of AAI Limited T/as GIO v Moon as the only available judicial guidance. The court considered the appropriate standard for determining exceptional circumstances in this context, ultimately ruling in favour of the claimant. The final orders reflected the court's determination on liability, costs, and the insurer's application for additional legal costs.

Orders