Ojala v Youi Pty Limited - [2024] NSWPIC 380

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ojala v Youi Pty Limited [2024] NSWPIC 380
CLAIMANT:	Sonya Ojala
INSURER:	Youi Limited
MEMBER:	Susan McTegg
DATE OF DECISION:	16 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; claimant failed to stop at a ‘give way’ sign and collided with insured driver; claimant alleged speed on behalf of the insured driver; Sibley v Kais, O’Neill v Liddle and Podrebersek v Australian Iron and Steel Pty Ltd considered; Held – claimant did not slow down prior to accident and did not keep a proper lookout; insured driver speeding prior to intersection however not satisfied ‘but for’ his speed collision would not have occurred; insured driver was not keeping proper lookout; obligation on each driver of vehicle approaching intersection to take reasonable care; claimant not wholly at fault; departure from standard of care of the reasonable person would amount to contributory negligence; claimant’s contributory negligence assessed at 80%; claimant mostly at fault for the accident; insurer to pay claimant’s expenses.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.36 of the Motor Accident Injuries Act 2017* (the MAI Act)** The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s expenses incurred in connection with the claim pursuant to section 8.10(1) of the MAI Act in the sum of $1,100 inclusive of GST in respect of the report fee paid to Gilmore Engineers in respect of the expert report of Mr Petty. 4. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act, 2017 (the MAI Act).
Mr Sonya Ojala (the claimant) was involved in a motor vehicle accident at the intersection of Moulder Street and Hill Street, Orange on 15 January 2023.
Youi Pty Limited (the insurer) is the relevant insurer liable to pay statutory benefits to the claimant under the MAI Act.
Ms Ojala completed an Application for Personal Injury Benefits on 22 January 2023.
On 18 May 2023 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis Ms Ojala was wholly or mostly at fault for the accident and on the basis she had sustained a threshold injury.
Ms Ojala sought an internal review of that decision and on 16 June 2023 in an Internal Review Decision the insurer confirmed the decision that she was wholly or mostly fault for the accident.
The insurer issued an amended liability notice dated 15 September 2023 conceding Ms Ojala had sustained a…

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: [2024] NSWPIC 380
Decision Date: 16 July 2024

CaseChat Overview and Summary

The case of Ojala v Youi Pty Limited involved the claimant, Ojala, who had an accident with the insured driver, represented by Youi Pty Limited. Ojala failed to stop at a ‘give way’ sign and collided with the insured driver. Ojala alleged that the insured driver was speeding, which contributed to the accident. The dispute centred around the Motor Accident Injuries Act 2017 and the assessment of miscellaneous claims, specifically whether Ojala was wholly or mostly at fault and the degree of contributory negligence.

The court had to determine if Ojala breached the standard of care expected of a reasonable person, and if so, to what extent. Additionally, the court had to assess whether the insured driver was speeding and if this speed contributed to the accident. The court considered relevant cases such as Sibley v Kais, O’Neill v Liddle and Podrebersek v Australian Iron and Steel Pty Ltd to assist in its determination.

The court found that Ojala did not slow down prior to the accident and did not maintain a proper lookout, which were breaches of the standard of care. While the insured driver was found to be speeding prior to the intersection, the court was not satisfied that this speed was the sole cause of the collision. Both drivers were found to be negligent; the insured driver was not keeping a proper lookout. The court concluded that each driver had an obligation to take reasonable care when approaching the intersection. Ojala was not wholly at fault, but his departure from the standard of care of a reasonable person amounted to contributory negligence, assessed at 80%. Therefore, Ojala was mostly at fault for the accident, and the insurer was ordered to pay Ojala’s expenses.

Orders