Hourani v AAI Limited t/as GIO
[2022] NSWPIC 244
•3 May 2022
| 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 the MAI Act provides:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Schedule 2 clause 3(d) of the MAI Act declares a dispute as to whether for the purposes of section 3.11 the motor accident concerned was caused by the fault of another person as a miscellaneous claims assessment matter.
Schedule 2 clause 3(e) of the MAI Act declares a dispute as to whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person as a miscellaneous claims assessment matter.
Under section 7.42 of the MAI Act, a party can refer a miscellaneous dispute to the Personal Injury Commission for assessment under Division 7.6 of the MAI Act.
The evidence
The accident was reported to the NSW Police on 15 October 2020. The NSW Police report includes the following narration:
“At about 8.30pm on 19th September 2020 VEH1 was travelling in a westerly direction along Henson Street in Brighton Le Sands when it has attempted to negotiate a S bend in the road and has lost control and collided with the road way.”
The claimant has provided a number of versions of events that are set out below.
An application for personal injury benefits (claim form) signed by the claimant dated 16 October 2020. The description of accident included therein is as follows:
“I was riding my motorbike along Henson Street Brighton Le Sands around 8:30pm and I passed a roundabout . After the roundabout I saw that I was approaching a S bend towards the road ahead so I had to forcefully apply the brakes. The road had gravel and because of the forceful braking it caused my motorbike to slide and as I fell off the motorbike I slid with my bike onto the gutter that was on the left side of the road. I was sliding down with my bike. I fell off onto the left side of my body and put the majority of my weight onto my right hand which caused my wrist to fracture as well as my shoulder.”
A “GIO Greenslip Accident Report Form signed by the claimant dated 3 November 2020 states:
“I was riding my bike below the speed limit and was travelling at a speed of 4-50km/hr.
It was nighttime and the sharp S bend followed by the roundabout as well as the gravel on the road caused the accident.”
In a statement dated 17 September 2021, the claimant states relevantly as follows:
“2.On the 19th September 2020 I was driving along Henson St Brighton Le Sands on my motor bike travelling at 50 kilometres per hour
3.As I approached the S bend I touched the brakes gently to reduce speed and I was travelling at 40 kilometres per hour.
4.I say that there was gravel on the road as I turned into the S bend and I touched the brakes, the Bike slipped after touching the brakes
5.I say that I believe this is a no-fault blameless accident as I was travelling at 40 kilometres per hour At the time of the accident.” (sic)
The claimant was transported to St George Hospital following the accident. A discharge referral from the hospital. It relevantly states as follows:
“Mr. El Hourani presented to St George Hospital after a motorcycle crash travelling at 40-50km/h on the 20/9/20. He reported applying his brakes too forcefully, which caused him to lose control prior to falling onto his L) side…”
There is no evidence before me that accurately sets out the configuration of the relevant stretch of roadway.
Submissions
The claimant’s submissions
The claimant’s legal representatives have provided short written submissions dated 17 September 2021.
It is the claimant’s submission that the circumstances of the accident are such that the accident is a “no fault” accident as defined in section 5.1 of the MAI Act. The claimant submits that the no fault accident provisions contained in section 5.1 to 5.8 of the MAI Act entitle him to ongoing statutory benefits. It is submitted that the accident is a “blameless” accident on the basis that the claimant was not negligent as the driver and no other person was negligent in respect of the accident.
It is submitted that that the accident was caused by an unavoidable collision with gravel on the road.
The submissions then erroneously refers to the blameless accident provisions of the Motor Accident Compensation Act 1999.
It is also submitted that the onus is on the insurer to provide that the accident was not “blameless.” The claimant relies on section 5.3 of the MAI Act in this regard, which provides that a declaration by an applicant that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary
The insurer’s submissions
The insurer’s submissions set out the definition of a motor accident as provided for in sections 1.4 and 1.9 of the MAI Act.
Essentially the insurer submits that the claimant is the only person that was using or operating a motor vehicle capable of causing and resulting in his own injury and therefore the only person with a duty of care to ensure that such use or operation of the motor vehicle avoids foreseeable harm.
The insurer submits the claimant is wholly at fault and lists a number of reasons for such position. These include, failing to drive to prevailing conditions and failing to keep a proper lookout. It is also submitted that the claimant failed to sufficiently slow down and negotiate the S bend appropriately and was travelling too fast in the circumstances.
The insurer relies upon the observations of Sidis ADCJ in the case of Jay Alexander Bramstedt v The Nominal Defendant [2016] NSWDC 4 at 76 (Bramstedt):
“It is often stated, in the context of tort law, that life does not always present a level playing field. It is not unusual to encounter material on the surface of roads, such as leaves or other debris from roadside vegetation, puddles of water or even gravel or loose material from roadside verges. All demand care on the part of motorists.”
With reference the claimant’s statement in his accident report that the S bend followed by a roundabout and gravel is the cause of the accident, the insurer submits that such an allegation is akin to saying the injury was not caused by a motor vehicle accident as defined in the MAI Act.
The insurer, in response to the claimant’s declaration in his submissions and statement that the accident was a no-fault accident, refers to the findings of Fagan J in the case of AAI Limited v Singh [2019] NSWSC 1300. The insurer submits that Fagan J found that the no-fault accident provisions in Part 5 of the MAI Act have no bearing on the entitlement to statutory benefits in Part 3 and called upon parliament to amend the MAI Act accordingly.
Reasons
On the basis of the evidence before me I find the claimant to have been mostly and wholly at fault in respect of the accident.
Whilst, the claimant in his statement alleges that he “touched” his brakes to reduce his speed, this is inconsistent with his more contemporaneous version of events contained within the claim form. In this regard, the claim form states that he had to “forcefully” apply the brakes. This is consistent with the discharge referral of St George Hospital.
Whilst I have no evidence before me that confirms the configuration of the roadway, the claimant himself in the claim form states that after driving through a roundabout he noticed the S bend and that is the reason he “forcefully” applied the brakes. The claimant then notes that the roadway had gravel upon it which caused the accident.
I do not accept that the accident is a “no fault” accident. Section 5.1 of the MAI Act defines a no-fault accident to mean a “motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”
I find that section 5.1 has no application to this matter as I make a finding that the claimant is at fault.
On the evidence before me, I make a finding that the claimant failed to drive to the prevailing conditions of the roadway. Firstly, he failed to drive at an appropriate speed relative to the roadway noting that by his own admission in the claim form that he had to “forcefully” apply the brakes when he noticed the S bend. Furthermore, the claimant failed to observe the gravel on the roadway and drive his vehicle accordingly. As found by Sidis J in Bramstedt, is not an unusual hazard on a roadway and that such occurrence demands care from motorists.
This leads to a finding that the claimant failed to keep a proper lookout as he did not appropriately anticipate the configuration of the roadway as he was driving upon it. In this regard, it was not until after he had negotiated the roundabout that he noticed the S bend. A reasonably prudent driver of a motor vehicle would look ahead to confirm the configuration of the roadway on approach so as to avoid the necessity of braking “forcefully.”
Costs and Disbursements
Neither party has provided submissions as to costs.
As a regulated miscellaneous claims matter under Schedule 1 Clause 3(2)(e) & (d) of the Motor Accident Injuries Regulation 2017 (the Regulation), legal costs may be awarded.
However, I have found against the claimant. I do not consider that there was a reasonable basis to allege that the claimant wholly or mostly at fault in respect of the accident.
Accordingly, I do not award costs in the claimant's favour.
Conclusion
My determination of the Miscellaneous Claim is as follows:
For the purposes of section 3.11 the motor accident was not caused by the fault of another person
For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person
Effective Date: This determination takes effect on 18 March 2021.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $0.
Legislation
In making my decision I have considered the following legislation and guidelines:
• MAI Act
• The Regulation
• The Civil Liability Act 2002
Elizabeth Medland
Member (Motor Accidents Division)
Personal Injury Commission
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