Hourani v AAI Limited t/as GIO - [2022] NSWPIC 244

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hourani v AAI Limited t/as GIO [2022] NSWPIC 244
CLAIMANT:	Hussein Hourani
INSURER:	AAI Limited t/as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	3 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the claimant was mostly at fault under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Single vehicle accident; Claimant a rider of a motorbike in Brighton Le Sands and lost control whilst negotiating an “S” bend; Claimant argued that no-fault accident provisions (Part 5) applied; Held- claimant failed to drive to the prevailing conditions and was mostly/wholly at fault.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 18 March 2021. 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.

Reasons for Decision

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

Background

This determination relates to a dispute arising between the parties due to the insurer denying liability for ongoing statutory benefits after 26 weeks on the basis that the injured person is mostly at fault under section 3.11 and 3.28 of the Motor Accident Injuries Act 2017

Mr Hussein Hourani (the claimant) suffered injury as a result of a motor accident occurring on 19 September 2020. At the relevant time, the claimant was the driver of a motorbike. The claimant lost control of the motorbike causing him to be alighted and suffer injury. There is a dispute as to the cause of the accident.
A claim was made against the insurer of the motorbike, GIO (the insurer), and liability was accepted for statutory benefits for the first 26 weeks.
Via notice dated 28 January 2021 the insurer denied payment of ongoing statutory benefits after 26 weeks on the basis that the insurer considered the claimant to be wholly or mostly at fault.
The claimant subsequently lodged an application for internal review. In a certificate dated 18 March 2021 the insurer affirmed the original decision.
An application was then lodged with the Personal Injury Commission by the claimant’s legal representatives. The matter has been allocated to me for determination.
I have held two teleconferences with the parties. Subsequent to the first teleconference the parties both provided submissions and the claimant provided a short, signed statement. Both parties agreed that it was appropriate for me to determine the matter on the papers.

Documents Considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Legislative Framework

Succinctly, payments of statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) are payable after 26 weeks unless the motor accident was caused wholly or mostly by the fault of the injured person.
In this regard, section 3.11 of…

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 244
Decision Date: 3 May 2022

CaseChat Overview and Summary

The case of Hourani v AAI Limited t/as GIO concerns a single vehicle accident involving the claimant, a rider of a motorbike, who lost control while negotiating an “S” bend in Brighton Le Sands. The claimant sought compensation under the Motor Accident Injuries Act 2017, asserting that the accident was a no-fault situation as per Part 5 provisions. The defendant, AAI Limited trading as GIO, opposed the claim, arguing that the claimant was mostly or wholly at fault, thereby excluding him from compensation under sections 3.11 and 3.28 of the Act.

The court was required to determine whether the claimant was mostly at fault for the accident and if the no-fault provisions applied. Key issues included whether the claimant had driven to the prevailing conditions, and whether his actions contributed to the accident. The court had to balance the claimant’s account of the accident against the evidence presented regarding the road conditions and his driving behaviour.

In its reasoning, the court found that the claimant had failed to drive to the prevailing conditions, particularly in negotiating the “S” bend, which was a critical factor in losing control of the motorbike. The court concluded that the claimant was mostly or wholly at fault for the accident, thus disqualifying him from compensation under the no-fault provisions. The court emphasised the importance of adapting to road conditions and maintaining control, especially in challenging situations such as navigating sharp bends. The claimant's failure to do so led to the finding of majority fault.

The court ordered that the claimant's claim for compensation be dismissed. The claimant was found to be mostly at fault for the accident, and therefore ineligible for compensation under the no-fault provisions of the Motor Accident Injuries Act 2017. This decision reinforces the principle that claimants must drive in accordance with prevailing conditions to be eligible for compensation in the event of an accident.

Orders