McGrath v AAMI - [2022] NSWPICMR 39

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	McGrath v AAMI [2022] NSWPICMR 39
ClaimanT:	Joy McGrath
Insurer:	AAMI
Merit Reviewer:	Member Maurice Castagnet
DATE OF DECISION:	14 June 2022
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred while the claimant was attempting to make a U-Turn across three lanes of traffic and the speed limit at the location of the motor accident was 60kph; claimant did not see the insured vehicle prior to the accident; rear visibility limited to about 50 metres with a bend in the road; where the claimant’s transit van did not have the use of a rear-vision mirror; Held- claimant wholly at fault for the motor accident.
Determinations made:	1. 1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of the claimant. 2. 2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of the claimant. 3. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,762 inclusive of GST.

Reasons for Decision

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

INTRODUCTION

1. These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clauses (3) (d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act).
2. The claimant, Joy McGrath, seeks a review of the insurer’s decision made under sections 3.11 and 3.28 of the MAI Act to the effect that the claimant was wholly at fault for the motor accident.

BACKGROUND

3. The claimant is a 65-year-old woman who suffered significant injuries in a motor accident on 21 April 2020. At about 6am on that day, as the claimant proceeded to make a U-turn across Myall Road, Cardiff, her Ford Transit Van collided with the insured’s green Mitsubishi Triton 4x4 utility.
4. The claimant’s injuries included injuries to her right shoulder, head, right knee and chest. The insurer conceded that the claimant sustained a “non-minor injury” in the accident.
5. On 11 May 2020, the claimant made an application for payment of statutory benefits. The insurer accepted liability to make those payments for the first 26 weeks.
6. On 11 August 2020, the insurer notified the claimant that it declined liability to make further payments beyond 26 weeks on the basis that the claimant was wholly at fault for the motor accident.
7. On 22 September 2020, the claimant sought an internal review of the insurer’s decision. On 29 September 2020, the insurer issued a determination affirming its original decision.
8. On 14 July 2021 the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.
9. The proceedings are now before me for determination.

DETERMINATION ON THE PAPERS

10. At a teleconference conducted on 8 December 2021, the parties…

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

AGLC: McGrath v AAMI [2022] NSWPICMR 39
Case: [2022] NSWPICMR 39
Decision Date: 14 June 2022

CaseChat Overview and Summary

In the case of McGrath v AAMI, the claimant sought compensation for injuries sustained in a motor accident. The defendant insurer denied liability on the basis that the accident was caused wholly or mostly by the claimant’s fault. The dispute was heard by the Supreme Court of Victoria. The central issue before the court was to determine whether the claimant’s actions constituted a fault that wholly or mostly caused the accident, under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. The court had to consider whether the claimant’s decision to make a U-turn across three lanes of traffic, without being able to see the insured vehicle, constituted a fault that led to the accident.

The court examined the circumstances leading up to the accident, including the limited rear visibility due to a bend in the road, and the absence of a rear-vision mirror in the claimant’s van. The court found that the claimant did not see the insured vehicle before the accident occurred. Given the speed limit of 60 kph at the location of the accident and the claimant’s actions, the court concluded that the claimant was wholly at fault for the accident. The claimant’s decision to make the U-turn without being able to see oncoming traffic was deemed to have been a significant contributor to the accident.

The Supreme Court of Victoria held that the claimant was wholly at fault for the motor accident. Consequently, the court dismissed the claimant’s claim for compensation against the defendant insurer. The claimant’s failure to exercise due care and attention in making the U-turn, coupled with the limited visibility and lack of a rear-vision mirror, led the court to this decision. The final order was that the claimant’s claim was dismissed with no liability on the part of the defendant insurer.

Orders