Legal Research
Cases
Koster v NRMA

Koster v NRMA

Case [2021] NSWPIC 484 26 November 2021

Type to search within this case.

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Koster v NRMA [2021] NSWPIC 484
CLAIMANT:	Luke Koster
INSURER:	NRMA
MEMBER:	Terence Stern
DATE OF DECISION:	26 November 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act2017; motorcycle accident with vehicle; contributory negligence; winding unmarked road; steep road and blind corner; learner driver; conflict in evidence; legal costs; exceptional circumstances; claim for fees of Senior Counsel; Held - driver of the vehicle likely more at fault than the claimant.
DETERMINATIONS MADE:	The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person 2. Effective Date: This determination takes effect on 26 November 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with section 8.10(4) of the Act is $ 12,831.50 inclusive of GST. A brief statement of my reasons for this determination is attached to this certificate.

Reasons for Decision

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

BACKGROUND

This determination relates to a miscellaneous claim which is a reviewable decision under Schedule 2(3)(d)(e) of the Act about cessation of statutory benefits pursuant to sections 3.11 and 3.28 of the Act

There is a dispute between Luke Koster, ‘the Claimant’ and the Insurer with respect to the cessation of statutory benefits pursuant to ss 3.11 and 3.28 of the Act.
The Claimant was injured in an accident on 14 November 2019 at about 6:30 pm when the motorbike he was riding, CZL42 was involved in a collision with a vehicle YGQ491 driven by Sarah Aspinall, ‘the Insured driver’.
The location of the accident was Macquarie Pass part of the Illawarra Highway near Robertson NSW with the nearest cross street being Mount Murray Road.

Brief Undisputed Facts

At the time of the Accident the Claimant was riding his motorcycle in a southerly direction i.e. down Macquarie Pass and the Insured driver was driving her motor vehicle in a northerly direction.
Macquarie Pass is a steep and winding mountain pass with a combination of a number of sharp bends and winding roads with blind corners.
The collision occurred on a left sweeping bend from the Insured driver’s direction of travel and at the exit of a blind corner where the view was obstructed by a rock wall at the immediate edge of the roadway of the Insured driver’s line of travel.

Factual Dispute

The factual dispute can be summarised shortly. The Insured driver alleges that she was “hugging” the rock wall and definitely on her side of the road which was not marked by any line. While the Claimant alleges that the Insured driver’s vehicle was well away from the rock wall.
The competing versions shortly put. The Insured driver maintains [Statement of 20 January 2020]:
“[24]…

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 Koster v NRMA

Details

AGLC: Koster v NRMA [2021] NSWPIC 484
Case: [2021] NSWPIC 484
Decision Date: 26 November 2021

CaseChat Overview and Summary

Koster v NRMA involved a dispute between the plaintiff, Mr Koster, and the defendant, NRMA Insurance, following a motorcycle accident. The central issue was whether Mr Koster's motor accident was caused wholly or mostly by his own fault, as stipulated by section 3.28 of the Motor Accident Injuries Act 2017. The case was heard and determined in the Supreme Court of New South Wales.

The legal issues before the court were whether Mr Koster was at fault in the accident and, if so, to what extent. The court had to consider evidence from both parties, including expert opinions on road conditions, visibility, and driver behaviour. The case also examined the applicability of contributory negligence, given that Mr Koster was a learner driver at the time of the accident.

The court concluded that the driver of the vehicle was likely more at fault than Mr Koster. The evidence indicated that the road was winding, unmarked, steep, and had a blind corner, factors that significantly contributed to the accident. The court found that the driver of the vehicle had not exercised reasonable care, particularly given the challenging road conditions. The judge deemed that exceptional circumstances existed to justify the costs of Senior Counsel, and Mr Koster's claim for legal costs was approved.

Orders