Ormonde-James v AAI Limited t/as GIO

[2022] NSWPIC 555

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Ormonde-James v AAI Limited t/as GIO [2022] NSWPIC 555
Claimant:	Paul Ormonde-James
insurer:	AAI Limited t/as GIO
Member:	Shana Radnan
DATE OF DECISION:	4 October 2022
CATCHWORDS:	MOTOR ACCIDENTS - Injured person wholly or mostly at fault; single vehicle accident; motorcycle leaves roadway; allegation rear tyre deflation loss of control, speed and condition of road surface; Held – for the purposes of sections 3.28 or 3.36 of the Motor Accident Injuries Act2017 the motor accident was caused mostly by the fault of the injured person.
determinations made:	1. For the purposes of ss 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person.

Reasons for Decision

Background

1. Paul Ormonde-James (the claimant/injured person) was involved in a single vehicle accident on 16 June 2020.

1. An application for statutory benefits was lodged on 5 August 2020.

1. The provisions of ss 1.4.and 1.9 of the Act apply where an injured person claims benefits, he has the onus to establish that the injury results from a motor accident and that the motor accident was the proximate cause of his injury.

2. The definition includes that the

   (a)     incident or accident;

   (b)     involved the use or operation if a motor vehicle that causes injury;

   (c)    the injury is as a result of or caused during the driving/collision, and

   (d)    the injury results from the use or operation of a motor vehicle.

3. The injured person discharged this onus and the insurer provided statutory benefits for the first 26 weeks.

4. A dispute arises in relation to whether the claimant is entitled to receive statutory benefits beyond 26 weeks.

5. The insurer determined that the injured person was the only person using or operating a motor vehicle (in the case riding his motorcycle) and the injuries were caused wholly by the fault of the injured person in liability decision made on 14 September 2020 and again confirmed in review decision dated 29 December 2020.

The legislation

1. Sections 3.11 and 3.28 of the Act requires an assessment of fault of an injured person.

2. Fault is defined by s 1.4 as “negligence or other tort”.

3. Injured person is defined as a person who has suffered an injury in respect of which the Act applies as provided by Division 1.3. The Act applies “in respect of the death or injury to a person that results from the use or operation of a motor vehicle.”

Teleconferences

1. I held a teleconference with the injured person and the representative of the insurer on 28 March 2022.

2. A further teleconference took place on 8 July 2022. The injured person during this conference advised me that he considered that the accident was caused by his rear tyre deflating which caused the motorcycle to slide out from underneath him. He disputed the contents of the police report on the basis the constable involved was a probationary constable and did not have the experience to properly determine the cause of the accident.

3. The injured person confirmed he would be able to provide me with additional evidence to establish that the lack of rear tyre pressure in the rear would render the motorcycle uncontrollable. That he would provide me with additional statements and photographic evidence to prove that the accident was not caused by any conduct on his part.

4. Following the teleconference, I made directions that the injured person provide me with the additional material by 8 August 2022. The insurer was given a further 14 days thereafter to provide final submissions and I would determine the matter thereafter.

5. The injured person did not provide any further material by the allocated date. I made contact with the parties through the Personal Injury Commission (the Commission) portal requesting an update whether the injured person required additional time to provide the material he claimed would assist his position.

6. No response was received from the injured person. I then requested that the insurer make contact with the injured person to seek details of whether any additional material would be produced.

7. I was advised by the injured person an extension would be granted to 9 September 2022 and the insurer to 16 September 2022 and if no further material was received, the matter would be determined on the information I held.

8. The insurer confirmed that the injured person had been contacted on 16 September 2022 and he advised he would not be providing any further information.

Injured person’s submissions

1. The injured person provided oral submissions during the teleconference held on 8 July 2022. He could not recollect the circumstances of the accident as he suffered amnesia. Possibly hitting his head.

2. His statements could not be relied upon as he had no recollection of the contents of the interviews he gave to police.

3. He believed the cause of the accident was the condition of the road surface containing a number of potholes and this must have caused the damage to his rear tyre.

4. He did not agree with the insurer that the cause could be speed related as he believed there were no skid marks on the road when the scene was investigated .

5. The rupture of the rear tyre noted by the police must have been the cause. He relied upon his prior good riding history of no prior collisions, he believed he was not speeding as when he rode he did not speed and had been riding for many years.  

6. At the location of the accident, the corner was not that steep. He thought the speed for the area was 100km and he believed he was within the limit.

7. I should disregard most of the statements he made as when they were taken, he would have been under the influence of medication, believed he hallucinated and may have suffered memory loss.

8. He believed the deflation of tyre pressure was the cause of instability and as he regularly services his motorbike, it was not his fault.

Insurer’s submissions

1. GIO issued a liability notice on 14 September 2020 (Reply Document 8) determining that the motor accident was caused wholly or mostly by the fault of the claimant, and therefore the claimant was not entitled to statutory benefits for weekly payments and treatment and care expenses incurred more than 26 weeks after the motor accident in accordance with ss 3.11(1)(a) and 3.28(1)(a) of the Act.

2. The claimant sought an internal review of that decision on 8 December 2020 (Reply Document 9). 

3. On 29 December 2020, GIO issued a Certificate of Determination and Statement of Reasons affirming the above decision (Reply Document 10).

4. The Application for Personal Injury Benefits dated 5 August 2020 records that the claimant was “unable to recall the circumstances of the accident…” (Reply Document 1) 

5. The police report (Reply Document 2) recorded:

   “Sometime between 8am and 10:15am on 16th of June 2020, the PN was riding north along Great North Road in the Bucketty Area. The PN has ridden off the left hand side of the road of a right hand bend and grazed by a tree…”

6. The police report recorded that the claimant was responsible for the collision. 

7. John Hunter Hospital records (Reply Document 4) that the claimant was involved in a single vehicle motorcycle accident at 80km/hour or 100km/hour. The claimant was noted to be amnesic to the event.

8. The claimant provided a verbal description of the motor accident to GIO on 20 July 2020 (Reply Document 5). The following description was recorded:

   “Accident circumstances: CL was riding on MB, came into corner on road. Road was wet, the back wheel kicked out and CL tried to over correct and bike hit gravel. CL then fell off bike onto road. CL advised it was raining day before. CL was wearing full protective suit, helmet, Kevlar jeans, motorbike boots. CL advised he has approx. 15 years experience. CL advised he was travelling approx. 80 km/h in a 100km road area. Trees were shadowing the road. CL is very familiar with area and the road…”

9. Factual investigation report dated 17 August 2020 (Reply Document 6) contains the following evidence:

   a.      Unsigned statement of the claimant dated 5 August 2020 (relied upon in the claimant’s application), recorded:

   “38.6 months prior to the accident, the motorcycle was last serviced…

   42. … The condition of the tyres were new and were fitted at Harley Davidson, West Gosford at the last service…

   53.I recall the weather that day was fine, and the roads were dryish, however the corners may have been damp…

   55.… I continued on travelling north along Great Norther Road to Bucketty. 

   58.The section of roadway where the accident occurred is sealed bitumen with a single lane each way with double centre lines into the corner. I recall there was no safety barrier. I recall the corner was shaded and darker…

   59.To my knowledge the speed limit in the area is 100km/hour. I remember that I slowed down because of the corner as it is a sweeping right-hand corner. 

   60.I had a good line of site coming into the corner. I was going around the corner travelling at about 80-90km/hour. As I came out of the corner the back end slipped to the left-hand side. I was leaning to the right going to the right-hand side. I have tried to counter steer to recover but the back end slipped out. I then hit the gravel as the bike slipped sideways. The bike continued to slide off the roadway into the bush on the left-hand side of the road… 

   61. They asked me what happened and I said, ‘the motorbike slid from under me.’ 

   b.     Interview with Probationary Constable Michael Maunder on 7 August 2020 recorded:

   i.Officer arrived on the scene at 11am and observed that there were no skid marks on the road. He observed tracks that led off the road to where the motorcycle and the claimant were lying, just on the grass patch before it dropped down in length about 2 metres.  

   ii.Estimated the claimant’s motorcycle travelled approximately 20 metres from  where it left the road and it was found to have grazed a tree 

   iii.Officer interviewed the claimant a couple of weeks prior to 7 August 2020. He reported to barely remember the incident itself. Officer advised there was “not a lot of investigating cause it just appeared to us that the driver just took the corner too wide and as soon as he’s off, it’s just an instant crash…”  

   iv.Officer suggested the cause of the accident was that the claimant took the corner too wide. Officer Maunder stated it could have been the claimant was travelling too fast or failed to lean enough into the corner.  

   v.Officer recalled that the weather on the date of the accident was fine all morning and day with a little bit of cloudiness. Officer recalled that there was no rain or wetness. The road was noted to be windy and hilly and through a forest, with shade cast across the road space quite often.  

   vi.Officer did not observe any significant potholes at the crash site. Officer stated that along the road there was average spots where there are some potholes and potholes that had been filled.  

   vii.Officer indicated that there were no contaminants on the roadway that may have contributed to the accident.  

   viii.In relation to the damage to the motorcycle, Officer indicated there was some pipe or hose damage somewhere, the handlebar was a little bent and he thought there might have been a ruptured tyre.  

   ix.Officer was asked to read out the claimant’s version of events (provided on 19 July 2020). He stated as follows:  

   “…the rider stated that he remembered very little. He was riding up Great North Road, heading towards Wollombi, where he was planning to stop and eat. The rider said he remembered the back bike wheel losing grip and sliding out towards the left kerbside. He fully slid off the road and onto the dirt grass embankment, causing the crash to happen. Afterwards, he said he only remembered lying on his back and being taken into a helicopter.”  

   c.     Investigator attended the accident scene on 9 August 2020 and observed the road was in good condition with no defects/potholes on the approach to the accident site. Investigator observed the speed limit of 80km/hour with an 55km/hour and winding road advisory sign visible approximately 120m prior to the accident scene (refer to photograph 4 (depicted below) and site diagram). Investigator observed new curve signs indicating the left-hand and right-hand bends prior to the accident site and at 400m prior to the accident site there was a motorcycle reduce speed sign.  

10. Eleni Kozanitis, psychologist assessed the claimant and recorded in her report dated 2 September 2020 (R7):

    “The accident occurred when the back wheel of his motorbike malfunctioned whilst riding over wet gravel.”  

11. In his request for internal review dated 8 December 2020 (R9), the claimant indicated that he believes there was an issue with the road that could not be immediately seen. He confirmed that the bike condition was excellent with no mechanical issues and new tyres replaced only 2,000km or six months ago. 

12. The claimant suggests in his application that it is more than likely a ruptured tyre caused the bike to have a back end kick out and be the cause of the accident.

13. For the purposes of ss 3.11(1)(a) and 3.28(1)(a) of the Act, an injured person is not entitled to statutory benefits for weekly payments for any period of loss of earnings or earning capacity that occurs, and care expenses incurred, more than 26 weeks after the motor accident if the motor accident was caused wholly or mostly by the fault of the person.  

14. The claimant was riding his motorcycle on Great North Road near Bucketty when he approached a sweeping right hand bend and during the process of navigating the righthand bend, came off the motorcycle, slid off the road and sustained injury.  

15. Six months following the accident, the claimant speculated that there was an issue with the road that could not be immediately seen. The attending officer did not observe any significant potholes at the crash site or any contaminants on the roadway that may have contributed to the accident. The investigator observed that the road was in good condition with no defects/potholes on the approach to the accident site. 

16. Seven months following the accident, the claimant suggested that it is more than likely a ruptured tyre caused the accident. The insurer submits that this is mere speculation. The claimant’s evidence is that his motorcycle was in excellent condition with no mechanical issues and new tyres replaced only 2,000km or six months prior to the accident.  

17. The insurer submits that the evidence, in its totality, does not support the proposition that the cause of the accident was by a fact or event beyond the claimant’s control  and relied on Douglas v AAI Limited t/as AAMI [2022] NSWPIC 246 (24 May 2022)

18. To the claimant’s knowledge, the speed limit was 100km/hour, however the speed limit was in fact 80km/hour. The claimant states that he slowed down because of the corner and was going around the corner travelling at about 80-90km/hour. The claimant makes no reference to the 55km/hour and winding road advisory sign positioned approximately 120m prior to the accident scene. 

19. The insurer submits that the claimant was riding at an excessive speed in the circumstances and failed to maintain proper control of his motorbike whilst navigating the right-hand bend.  

20. The insurer has discharged its onus, after investigating, collecting and assessing all the relevant information and determined that the injured person was at wholly at fault for the motor accident. 

21. In the insurer’s submission, the claimant was wholly, or in the alternative mostly, at fault for the following reasons: 

    (a)    Travelling too fast in the circumstances, namely travelling at 80-90km/hour in an 80km/hour zone. 

    (b)    Failing to see and/or heed to a 55km/hour and winding road advisory sign positioned approximately 120m prior to the accident scene.

    (c)    Failing to see, slow down and take evasive action so as to avoid any hazards on the roadway (if it is accepted that there was a hazard on the roadway, which is not conceded).

    (d)    Failing to sufficiently slow down and negotiate the bend appropriately. 

    (e)    Failing to drive to the prevailing conditions.

    (f)    Failing to take reasonable and adequate care for his own safety.  

    (g)    Failing to control his motorcycle so as to avoid an accident. 

    (h)    Failing to maintain his motorcycle, namely that his tyres were maintained (if it is accepted that a ruptured tyre contributed to the accident, which is not conceded). 

22. The claimant declared in his request for internal review and application that the motor accident be considered a no-fault motor accident. 

    a.   ‘No-Fault accident’ is defined in Section 5.1 of the MAI Act as: 

    “…a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.” 

23. Section 5.3 of the Act provides that an averment by the plaintiff that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary. 

    a.     In AAI Limited v Singh [2019] NSWSC 1300, Fagan J held that the no-fault accident provisions in Part 5 of the Act have no bearing on the entitlement to statutory benefits in Part 3 and called upon parliament to amend the Act accordingly.

    b.     In any event, it is submitted that the insurer has discharged its onus and the evidence supports a finding that the motor accident was caused by the fault of the owner or driver. 

    c.     Part 3 of Schedule 2 of the Act provides that the following matters are declared to be miscellaneous claims assessments: 

    …

    (d)(whether for the purposes of section 3.11 (Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks) the motor accident concerned was caused by the fault of another person,  

    (e)whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) or 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was caused mostly by the fault of the injured person, 

24. The insurer submits that the Member would be satisfied, on the balance of probabilities, having regard to all of the material available, that the motor accident was caused by the fault of the claimant for the purposes of (d) and that accident was caused mostly by the fault of the claimant for the purposes of (e).

DETERMINATION

1. I have considered the documents provided in the application and the reply and any further information provided by the parties.

2. Whilst the injured person questioned the report of Probationary Constable Maunder referenced E388267193, I note that attending the site was also Senior Constable Luke Marks.

3. A witness Shane Supple was not a direct witness to the accident as he came across the injured person in the bush at approximately 10.15am and called for emergency assistance.

4. The accident scene was located on Great North Road Bucketty 300m northwest of Bucketty Private Road No.3. The road was bitumen and single lane each way. The surrounds were dense bushland.

5. The investigations undertaken by MJM on behalf of the nominal defendant described the accident scene as follows at page 4.

   “The road is sealed bitumen with a single lane each way heading generally north/south separated by double yellow lines. The road is in good condition with no defects/ potholes on the approach to the accident site. There are no edges or shoulder leading up to the accident site. The road slopes slightly downhill and the subject right-hand bend is cambered to the right.

   The speed limit in the area is 80 km/hr. There is a speed advisory sign to travel 55km/hr and winding road sign located approximately 120m before the accident site.”

1. The find that the injured person lost control of his motorcycle on his evidence as he was negotiating the corner.  His statement “As I came out of the corner the back end slipped to the left hand side, I was leaning to the right to the right-hand side. I have tried to counter-steer to recover but the back end slipped out.”

2. Hitting the gravel at this point the motorcycle slipped sideways and went off the roadway into the bush on the left-hand side of the roadway. The injured person and his motorcycle then collided with a fallen burnt log approximately 5-10m from the roadway. It is upon the brushing past the log that the injured person is believed to have been ejected from the motorcycle.

3. The police noted damage to the handle bars, wreckage strewn at the site and fuel leaking. No action was taken by the police as a result of the accident. They could not determine the cause of the crash but provided a “likely cause of the accident was that the rider took the corner too wide and speed may have been a factor”.

4. The injured person suffered injury to his right elbow with bone protruding through the skin and blood coming through the jacket. He was airlifted to John Hunter Hospital and then undertook rehabilitation at Mt Wilga Private Hospital at Hornsby.

5. I reviewed the photographic evidence produced in the matter.

6. The police did not find skid marks at the scene. The damage to the motorcycle included handlebar slightly bent and fuel leaking.

7. When Probationary Constable Maunder was asked by the insurer’s investigator the “cause of the accident?” He responded “as best as we can determine, he just took the corner too wide. Whether that was too fast or he just didn’t lean in enough, but it could – could be either really.”

8. Probationary Constable Maunder did not think any other factor was involved. He confirmed no evidence of skid or tyre marks or anything that indicated he swerved. The injured person did not mention he evaded anything.

9. Constable Maunder was asked about the condition of the roadway and his response was:

   “Yeah, the actual road itself, I didn’t notice any significant potholes at the crash site. Along the road, there is – there are average spots where there are – there’s some potholes and some pot holes have been filled, yeah. It’s still average.”

10. Discharge records from John Hunter Hospital confirmed that the injured person sustained:

    “Right distal humerus fracture

    Right scapula fracture dislocation

    Multiple rib fractures

    Spinal fractures acute cystitis

    Calculus of kidney and ureter”

66.The accident was not a blameless accident. There was some culpability on the part of the injured person in travelling too fast for the conditions.

1. Whilst the injured person reasoned the rear tyre lost grip and slid out due to loss of tyre pressure, this was not confirmed by the evidence. It is equally likely the accident and collision in the bushland could have cause the tyre to deflate. The lack of gravel mark or skid mark noted by the police attending the scene suggests the deflation was not the cause of the accident.       

2. I gave the injured person opportunity to produce the evidence to support his contention, however he failed to produce any evidence on this issue, even though he sought additional time to produce reports and photographs.

3. I accept the reasoning of the insurer and the evidence of the factual investigations and the statement obtained from the police I agree with the insurer’s submission, the claimant was wholly, or in the alternative mostly, at fault for the following reasons: 

   (a)     Travelling too fast in the circumstances, namely travelling at 80-90km/hour in an 80km/hour zone. 

   (b)     Failing to see and/or heed to a 55km/hour and winding road advisory sign positioned approximately 120m prior to the accident scene.

   (c)     Failing to sufficiently slow down and negotiate the bend appropriately. 

   (d)     Failing to drive to the prevailing conditions.

   (e)     Failing to take reasonable and adequate care for his own safety. 

   (f)      Failing to control his motorcycle so as to avoid an accident.

4. The insurer’s determination that the injured person was wholly or mostly at fault is correct.

Conclusion

My determination of the Miscellaneous Claim is as follows:

1. For the purposes of ss 3.28 or 3.36 the motor accident was caused wholly or mostly by the fault of the injured person.

Effective Date: This determination takes effect on 4 October 2022.

1. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $0 inclusive of GST as no legal representation was used by the injured person.

Legislation

1. In making my decision I have considered the following legislation and guidelines:

• The Act