| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Lin v AAI Limited t/as GIO [2022] NSWPIC 408 |
| CLAIMANT: | Xiuying Lin |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Brett Williams |
| DATE OF DECISION: | 26 July 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - miscellaneous assessment matter; whether motor accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; accident occurred at night; mixed commercial, residential, industrial area; claimant wearing dark clothing; claimant ran across road and tripped prior to the collision; driver travelling at speed limit; application of Civil Liability Act 2002; Marien v Gardiner applied; Held — accident caused wholly by the fault of the claimant; claimant failed to exercise reasonable care for her own safety; accident not caused by the fault of the driver; had finding of fault on the part of the driver been made finding would have been made that the accident was caused mostly by the fault of the claimant. |
| DETERMINATIONS MADE: | Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 78 of the Personal Injury Commission Rules. The findings of the assessment of this dispute are as follows: 1. For the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 the motor accident was caused wholly by the fault of the claimant. 2. A brief statement of my reasons for this determination are attached to this certificate. |
Reasons for Decision
BACKGROUND
Xiuying Lin (the claimant) was involved in a motor vehicle accident on 13 July 2021. The accident occurred as the claimant was crossing Queens Road, Five Dock. Following the accident she made a claim for statutory benefits dated 23 July 2021. AAI Limited t/as GIO (the insurer) denied liability for the claim on 19 October 2021 on the basis that the accident was caused wholly by the fault of the claimant. The decision was affirmed by an internal reviewer on 30 November 2021.
The dispute between the parties is whether, for the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAI Act), the accident was caused wholly or mostly by the fault of the claimant. The dispute is a miscellaneous assessment matter: Sch 2 cl 3(n) of the MAI Act.
ON THE PAPERS
The parties agree that the proceedings can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 and Procedural Direction PIC2 I have concluded that the matters that arise in the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the issues without holding a formal hearing.
STATUTORY FRAMEWORK
The claimant seeks payment of statutory benefits in accordance with Part 3 of the MAI Act. She is not entitled to weekly payments of statutory benefits or benefits for treatment and care more than 26 weeks after the accident if the accident was caused wholly or mostly…
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- Case
- [2022] NSWPIC 408
- Decision Date
CaseChat Overview and Summary
The court found that the accident was caused wholly by the fault of the applicant. The court held that the applicant had failed to exercise reasonable care for her own safety by running across the road in dark clothing at night. The court found that the driver of the vehicle was not at fault for the accident as she was travelling at the speed limit and did not see the applicant until it was too late. The court also noted that if the court had found that the driver was at fault, it would have found that the accident was caused mostly by the fault of the applicant. The court relied on the case of Marien v Gardiner, which held that a plaintiff who runs into the road in the dark and is struck by a vehicle travelling at the speed limit is wholly at fault for the accident. The court held that the applicant was wholly at fault for the accident and, therefore, the respondent was not liable for damages. The court dismissed the applicant's claim for damages.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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