Lin v AAI Limited t/as GIO - [2022] NSWPIC 408

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…

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 408
Decision Date: 26 July 2022

CaseChat Overview and Summary

Lin, the applicant, brought proceedings against AAI Limited t/as GIO, the respondent, for recovery of damages following a motor accident. The applicant had been travelling across a road in a mixed commercial, residential and industrial area when she was struck by a vehicle. The applicant was wearing dark clothing and ran across the road at night. The driver of the vehicle was travelling at the speed limit and did not see the applicant until it was too late. The applicant was awarded damages for the accident, but the respondent contested the award, arguing that the accident was caused wholly or mostly by the fault of the applicant. The primary dispute in this case was whether the accident was caused wholly or mostly by the fault of the applicant. The court was required to determine the extent to which the applicant was at fault for the accident and whether the accident was caused wholly or mostly by her fault for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. The court also needed to consider the application of the Civil Liability Act 2002 and the case of Marien v Gardiner.

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