Gulati v Insurance Australia Limited t/as NRMA Insurance - [2023] NSWPIC 549

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gulati v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 549
CLAIMANT:	Adarsh Gulati
INSURER:	NRMA
MEMBER:	Bridie Nolan
DATE OF DECISION:	13 October 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act; miscellaneous claims assessment; whether insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38 in respect of a motor vehicle accident; claimant pedestrian walking across driveway on footpath; insurer conceded breach of duty of care; whether claimant guilty of contributory negligence; Held – insured driver’s failure to maintain a proper lookout was a significant departure from the requisite standard of care which carried the relevant causal potency for the accident; claimant’s actions did not in any way diminish the insured’s ability to maintain a proper lookout, which was the sole cause of the accident; insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 7 August 2022. 3. Legal Costs:** The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is nil.

STATEMENT OF REASONS

INTRODUCTION

The claimant lodged an Application for Personal Injury Benefits on 30 August 2022 in respect of an accident which occurred on 7 August 2022.
The insurer issued a Liability Notice - Benefits up to 26 Weeks on 1 September 2022 accepting liability for statutory benefits for 26 weeks from the date of the motor accident.
The insurer also issued a Liability Notice - Benefits After 26 Weeks on 21 November 2022 accepting liability with contributory negligence for statutory benefits after 26 weeks from the date of the motor accident. It determined that the claimant contributory negligence was assessed at 50% because she failed to ensure it was safe prior to crossing and failed to observe the vehicle moving towards her prior to crossing the road.
The claimant requested an internal review of the insurer's fault decision on 15 December.
The insurer conducted the internal review on 28 December 2022 and substituted the original decision for a determination that the claimant contribution to the accident and/or her injuries amounted to 25%. A Further Liability Notice - Benefits After 26 Weeks was subsequently issued on 30 January 2023.
The claimant applies to the Personal Injury Commission (Commission) for the determination of a miscellaneous claims assessment matter under Schedule 2, cl 3 (g) of the Motor Accident Injuries Act 2017 (the Act) as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 (Reduction of weekly statutory benefits…

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.

Continue reading Gulati v Insurance Australia Limited t/as NRMA Insurance

Details

AGLC: Gulati v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 549
Case: [2023] NSWPIC 549
Decision Date: 13 October 2023

CaseChat Overview and Summary

The case of Gulati v Insurance Australia Limited t/as NRMA Insurance involved a dispute between the claimant, Gulati, and the insurer, NRMA Insurance, concerning the assessment of statutory benefits payable following a motor accident. The claimant, Gulati, was a pedestrian struck by a vehicle while walking across a driveway on a footpath. The driver of the vehicle, who was insured by NRMA Insurance, conceded a breach of duty of care in failing to maintain a proper lookout. The key issue before the court was whether Gulati's actions contributed to the accident and whether the insurer could reduce the statutory benefits payable under section 3.38 of the Motor Accident Injuries Act.

The court examined whether Gulati's actions constituted contributory negligence, potentially entitling the insurer to reduce the benefits payable. It was determined that Gulati's actions did not diminish the driver's ability to maintain a proper lookout, which was the sole cause of the accident. The driver's failure to maintain a proper lookout was a significant departure from the standard of care and had the causal potency for the accident. The court concluded that Gulati's conduct did not contribute to the accident and that the insurer was not entitled to reduce the statutory benefits payable.

The court's reasoning was grounded in the principle that contributory negligence must be assessed in the context of the specific circumstances of each case. Here, the driver's breach of duty of care was the sole cause of the accident, and Gulati's actions were not contributory. Therefore, the insurer's entitlement to reduce benefits under section 3.38 was negated. The court emphasised the importance of assessing each party's conduct in the context of the accident's causation.

The final orders of the court were that the insurer was not entitled to reduce the statutory benefits payable to Gulati in respect of the motor accident. The court's decision reinforced the necessity for drivers to maintain a proper lookout and highlighted the importance of contributory negligence assessments in determining the extent of statutory benefits.

Orders