Moon v AAI Limited t/as GIO - [2022] NSWPIC 516

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Moon v AAI Limited t/as GIO [2022] NSWPIC 516
Claimant:	Ok Soon Moon
insurer:	AAI Limited t/as GIO
Member:	Terence Stern
DATE OF DECISION:	19 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault; whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant was a pedestrian on a busy (vehicles and pedestrians) roadway; objective significant risk of presence of pedestrians; collision between pedestrian and vehicle; claimant alleged to have emerged from between two vehicles; insured driver alleged to have failed to keep proper look out; Held – non-minor injuries; claimant not mostly at fault; legal costs; exceptional circumstances.
determinations made:	1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs is assessed at $5,500.00 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Ok Soon Moon (Claimant) was injured in a motor vehicle accident on 2 April 2021 sustaining injuries subsequently agreed as non-minor.
The Claimant was born in June 1959.
On about 8 April 2021 the Claimant made a claim against GIO the CTP Insurer of the vehicle which collided with her.
A dispute has arisen in connection with the claim. The claimant has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
I have had a number of telephone conferences arising from the fact that the driver and the passenger were both charged, and proceedings were commenced in the Hornsby Local Court. It was not possible to obtain a transcript until those proceedings have been completed.
I had the most recent telephone conference on 5 May 2022, when the parties legal representatives agreed that I should decide the dispute on the papers.

LEGISLATIVE BACKGROUND AND INSURER DECISION MAKING
Statutory framework

The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act.
Under section 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
However, pursuant to sections 3.11 (relevant to weekly benefits) and 3.28 (relevant to treatment and care benefits), after 26 weeks from the date of the accident, an injured person is not entitled to statutory benefits if the injured person only has minor injuries (within the definition in section 1.6) or if the injured person was wholly or mostly at fault for causing the accident. In this case there is…

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 516
Decision Date: 19 September 2022

CaseChat Overview and Summary

The case of Moon v AAI Limited t/as GIO involves a dispute over statutory benefits under the Motor Accident Injuries Act 2017 (2017 Act). The claimant, a pedestrian, sought benefits following an accident where they were struck by a vehicle. The insurer argued that the claimant was mostly at fault, leading to a cessation of benefits. The court had to determine whether the claimant was indeed mostly at fault and if benefits should therefore cease under sections 3.11 and 3.28 of the 2017 Act.

The legal issues before the court involved interpreting the relevant sections of the 2017 Act to ascertain the fault of the pedestrian in the accident. Specifically, the court needed to assess whether the pedestrian’s actions contributed significantly to the accident and if their fault was such that it warranted a cessation of statutory benefits. The court also considered the objective circumstances, including the presence of both vehicles and pedestrians on a busy roadway and the potential for significant risk.

The court found that the claimant was not mostly at fault and that their injuries were non-minor. The insured driver was found to have failed to keep a proper lookout, which was a critical factor in the collision. Given these findings, the court ruled that the claimant was entitled to the statutory benefits. Additionally, the court found exceptional circumstances and awarded the claimant their legal costs.

The final orders of the court mandated that the insurer pay the claimant their statutory benefits and also cover the legal costs incurred by the claimant in this proceeding. The court emphasised the importance of motorists maintaining proper lookout in areas where both vehicles and pedestrians are present.

Orders