Kennedy v AAI Limited t/as GIO - [2022] NSWPIC 342

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kennedy v AAI Limited t/as GIO [2022] NSWPIC 342
CLAIMANT:	Timothy Kennedy
INSURER:	AAI Limited t/as GIO
MEMBER:	Belinda Cassidy
DATE OF DECISION:	31 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); application for statutory benefits; insurer’s denial of ongoing benefits under sections 3.11 and 3.28 of the 2017 Act on the basis that the Claimant was wholly or mostly at fault; Claimant owner and rider of only vehicle (motorcycle) involved; accident occurred in country NSW when rear wheel fell off motorcycle; Claimant was experienced motorcycle rider felt something wrong at front of bike and pulled over to investigate; pushed bike up the road then mounted bike and rode off accelerating slowly before being thrown from motor bike; rear wheel never found; three potential causes of rear wheel dislodging; failure to maintain, catastrophic failure or tyre-fitter failure; Held- Claimant not wholly at fault because no evidence of failure to maintain and other two potential causes due to someone else or something else; Claimant not mostly at fault because reasonable person in the position of the Claimant (experienced rider; 40 kms from nearest town) would attempt to investigate and diagnose problem before calling for help.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.

STATEMENT OF REASONS

INTRODUCTION

On 27 September 2021, Timothy Kennedy was riding his BMW motorcycle from Hay towards Forbes. Shortly after turning into Sandy Creek Road from Pullabooka Road, he was thrown from his motor bike and injured.
On 30 October 2021, Mr Kennedy made a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (MAI Act). As there was no other vehicle involved, Mr Kennedy made the claim with GIO, his own compulsory third party (CTP) insurer. GIO accepted the claim and commenced paying benefits to Mr Kennedy1.
On, 28 January 2022, GIO wrote to Mr Kennedy saying that he was wholly at fault in causing his accident and that pursuant to sections 3.11(1) and 3.28(1) of the MAI Act, liability to pay any benefits beyond the first 26 weeks after the accident was denied2. An internal review was sought and GIO affirmed its original decision on 8 March 20223.
The dispute between Mr Kennedy and GIO about whether Mr Kennedy was wholly at fault in causing his accident was referred by Mr Kennedy to the Personal Injury Commission (the Commission) for determination. The dispute was allocated to me for assessment.
I have held a preliminary teleconference in the matter on 18 May 2022. I took some brief evidence from the claimant…

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 342
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the case of Kennedy v AAI Limited t/as GIO, the claimant sought statutory benefits under the Motor Accidents Injuries Act 2017 (2017 Act) following a motorcycle accident in which the rear wheel of the bike detached. The insurer denied ongoing benefits, asserting that the claimant was wholly or mostly at fault. The claimant, who was the sole owner and rider of the motorcycle, argued that the rear wheel came off while he was riding, causing him to be thrown from the bike. The rear wheel was never found, and three potential causes were identified: failure to maintain the bike, catastrophic failure, or a tyre-fitter error. The claimant, an experienced rider, maintained that he had not neglected the bike's upkeep and that he had attempted to diagnose the problem before continuing to ride.

The court was required to determine whether the claimant was wholly or mostly at fault under sections 3.11 and 3.28 of the 2017 Act. This involved assessing the potential causes of the accident and the claimant's actions leading up to the incident. The court considered whether the claimant's actions were reasonable given his experience and the circumstances of the accident, particularly the remote location and the need to investigate the problem before seeking assistance.

The court concluded that the claimant was not wholly at fault because there was no evidence to suggest that he had failed to maintain the motorcycle. The other two potential causes—catastrophic failure and tyre-fitter error—were attributed to external factors. Additionally, the court found that the claimant was not mostly at fault because a reasonable person in his position, an experienced rider who was 40 kilometres from the nearest town, would attempt to investigate and diagnose the problem before calling for help. The court found that the claimant's actions were reasonable under the circumstances.

As a result, the court ruled in favour of the claimant, allowing the application for statutory benefits. The insurer was ordered to provide the claimant with the ongoing benefits to which he was entitled under the 2017 Act.

Orders