McDonough v Youi Pty Limited - [2024] NSWPIC 445

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McDonough v Youi Pty Limited [2024] NSWPIC 445
CLAIMANT:	Adam Charles McDonough
INSURER:	Youi Pty Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	19 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment following insurer’s decision to deny liability on the basis claimant wholly or mostly at fault; claimant riding motorbike at night when he saw stationary traffic ahead, braked, and lost control; claimant did not know what caused him to lose control but thought there may have been oil or diesel on the road; no evidence from witnesses or emergency services as to presence of oil on the road; both parties provided expert reports; matter determined on the papers; findings of fact as to where the claimant braked and how he braked, distance he and his motorcycle slid on the road, and his speed; Held – Member satisfied the road surface was contaminated, therefore, claimant could not be wholly at fault; claimant contributed to the accident due to his speed; claimant mostly at fault.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant.

STATEMENT OF REASONS

INTRODUCTION

General background to the dispute

Adam McDonough was involved in a motor accident on 19 July 2021. Mr McDonough was riding his motor bike to work, it was 8:00pm, dark and cold. He says he passed through one intersection looked ahead to the next intersection and saw vehicles stationary at that intersection. He braked and lost control of his motorbike, coming off and sliding along the road.
Mr McDonough was wearing full protective gear and lucky to have avoided serious injuries. He sustained no fractures or dislocations but was bruised and injured his lower back.
On or about 4 August 2021, Mr McDonough made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Youi, the insurer of Mr McDonough’s motorcycle.
The insurer has denied liability for ongoing statutory benefits on the basis Youi believes
Mr McDonough was wholly or mostly at fault for causing his accident.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. Youi affirmed its decision and on 27 February 2024 Mr McDonough referred the issue of whether he was wholly or mostly at fault to the Personal Injury Commission (Commission) for assessment in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me.

Procedural issues

I held a preliminary conference on 27 March 2024. Mr McDonough was present, and Mr Hunt represented the insurer.
Mr McDonough raised…

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.

Keep reading for free

Create a free CaseChat account to read McDonough v Youi Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 445
Decision Date: 19 August 2024

CaseChat Overview and Summary

The case of McDonough v Youi Pty Limited involved a dispute regarding a motor accident claim under the Motor Accident Injuries Act 2017. The claimant, McDonough, had been riding a motorcycle at night when he encountered stationary traffic ahead. He braked but lost control of the motorcycle, resulting in an accident. McDonough was uncertain about the cause of losing control but suggested it might have been due to oil or diesel on the road. Neither witnesses nor emergency services confirmed the presence of such contaminants. Both parties submitted expert reports, and the matter was decided based on the written submissions.

The central legal issue before the court was to determine the degree of fault attributable to McDonough in the accident. Specifically, the court had to decide whether McDonough was wholly or mostly at fault. This determination was crucial as it would impact the assessment of his miscellaneous claim following the insurer's decision to deny liability based on McDonough being wholly or mostly at fault. The court considered evidence including the findings of fact about McDonough's braking, the distance his motorcycle slid, and his speed at the time of the accident.

The court found that the road surface was indeed contaminated, which meant McDonough could not be wholly at fault. However, the court also concluded that McDonough contributed to the accident by riding at a speed that made it difficult to regain control of the motorcycle upon braking. Consequently, the court determined that McDonough was mostly at fault, leading to the insurer's denial of liability for the claim. The court's findings and reasoning led to a clear outcome that balanced the evidence and legal principles applicable to motor accident claims under the relevant Act.

Orders