Pham v AAI Limited t/as GIO - [2022] NSWPIC 304

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pham v AAI Limited t/as GIO [2022] NSWPIC 304
CLAIMANT:	Michael Pham
INSURER:	AAI Limited t/as GIO
MEMBER:	Shana Radnan
DATE OF DECISION:	17 June 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault and whether benefits should cease under sections 3.11 and 3.28 of the 2017 Act; claimant swerved to avoid hitting a dog which suddenly ran across his path; claimant subsequently collide with a tree sustaining serious injuries; single vehicle accident; Held– claimant not wholly or mostly at fault; issues of constructions of ‘motor accident’ and “fault” and section 1.4 of the 2017 Act considered; consideration as to cases in single vehicle accidents; costs assessed on exceptional basis pursuant to section 8.10(4)(b)of the 2017 Act.
DETERMINATIONS MADE:	1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. The amount of the injured person costs assessed in the sum of $11,662.20 inclusive of GST.

REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

BACKGROUND

Michael My Duy Pham (the injured person) was injured on 14 October 2020 at around 5.00pm on Magpie Hollow Road at Rydal, in New South Wales when he swerved to avoid a dog, lost control of his vehicle and collided with a tree.
In the accident he sustained the following injuries:
(a)   right comminuted midshaft femoral fracture;
(b)   right open ulna with forearm fracture and elbow laceration;
(c)   fracture of middle finger;
(d)   fracture to the sternum and right rib;
(e)   left undisplaced based 3^rd metacarpal fracture;
(f)    left undisplaced small trapezoid fracture requiring splint, and
(g)   cuts and bruises soft tissue injuries.
The injured person made a claim against GIO, the third-party insurer of his own vehicle.
A dispute has arisen in connection with the claim as to whether the injured person is entitled to receive statutory benefits after 26 weeks. The injured person has referred that dispute to the Personal Injury Commission (the Commission). The dispute is before me for determination.
The matter has been the subject of numerous teleconferences and an Assessment Conference which took place on 1 April 2022 with Mr Stone senior counsel of counsel appearing for the injured person and Ms J Gumbert of counsel appearing for the insurer.

Statutory framework

The claim is one for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
Under s 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…

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 304
Decision Date: 17 June 2022

CaseChat Overview and Summary

Pham v AAI Limited t/as GIO involved a claim for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (2017 Act). The dispute centred on whether the claimant was wholly or mostly at fault for the accident, which would entitle the insurer to cease benefits under sections 3.11 and 3.28 of the 2017 Act. The claimant swerved to avoid hitting a dog that ran across the road, resulting in a collision with a tree and serious injuries. The insurer argued that the claimant was wholly at fault for taking evasive action at high speed and that such action was not reasonable.

The court was required to decide several legal issues, including the interpretation of the terms ‘motor accident’ and ‘fault’ under the 2017 Act, and the applicability of the provision to single vehicle accidents. The court considered whether the claimant's actions in swerving to avoid the dog constituted the actions of a reasonable person, given the unexpected nature of the event. The court also evaluated the insurer's argument that the accident did not qualify as a ‘motor accident’ because it was not caused by the claimant's use or operation of the vehicle. The court examined previous cases such as NSW Insurance Ministerial Corporation v Reeve and Member Cassidy's reasoning in Yankovich, which held that the accident qualified as a ‘motor accident’ as it involved the use of the vehicle, regardless of the cause.

The court concluded that the claimant was not wholly or mostly at fault for the accident. The reasoning hinged on the interpretation that a reasonable person, faced with an unexpected event such as a dog suddenly running across the road, might take evasive action even at high speeds. The court found that such action did not necessarily make the claimant wholly at fault. Additionally, the court held that the 2017 Act covered single vehicle accidents and that the claimant's injuries resulted from the use of the vehicle, fulfilling the definition of a ‘motor accident’. The court found the insurer's submissions on the cessation of benefits to be without merit, affirming the claimant's entitlement to statutory benefits. Costs were assessed on an exceptional basis pursuant to section 8.10(4)(b) of the 2017 Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the statement of reasons in the internal review conducted by the insurer the decision continued:-“the writer has assessed the issue of whether you were wholly or mostly at fault on the following basis:1. You were travelling approximately 100km/h. The writer notes that you have not stated your speed in any of the documents however you the Police report records your pre-crash speed as 100km/h and that has not been challenged. 2. It was daylight (as recorded in the Police report). 3. The dog appeared suddenly on the road in front of you. 4. You took evasive action by swerving to avoid the dog and as a result you collided with a tree….“The question therefore is whether your actions in swerving to avoid a dog when travelling at 100km/h were the actions of a reasonable person when faced to act in an unexpected and unheralded situation. It is patently obvious that a reasonable person would have been aware that there was a risk of serious injury when taking evasive action at such high speed. The writer considers that the risk of injury was so great that a reasonable person in your position would not have taken such evasive action and would have unfortunately collided with the dog. In support of that position the writer refers to NSW Insurance Ministerial Corporation v Reeve (NSW Court of Appeal, unreported decision, 24 September 1993). In that case a driver on the Pacific Highway had stopped suddenly to avoid some ducks crossing the road. The Chief Justice observed: “Perhaps somewhat generously to Mr Cotterill, his Honour did not seem to regard it as an aspect of negligence on his behalf that he did not decide to run over the ducks rather than imperil the people in the cars behind him.” The writer acknowledges that this was mere obiter dicta but the sentiment expressed supports the proposition that a reasonable driver would run over an animal on the road rather than imperil other road users or themselves. Having regard to the above, the writer considers that you were wholly at fault for the subject motor accident and that the evasive actions taken in order to avoid a collision with a dog were not the actions of a reasonable person in that position. “Conclusion In determining an Internal Review Application, the Internal Reviewer is to review the matter on the merits and make their decision having regard to the material before them, including your version of events and the Police version. The writer notes that the Police found you to be responsible for the accident. The writer submits that the legislation [Motor Accident Injuries Act 2017 (NSW)] is clear on the cessation of entitlements after 26 weeks for persons who are found to be wholly or mostly at fault. All CTP insurers in New South Wales are bound by the stipulations of this legislation and there is no room for digression or flexibility from what this legislation dictates. The writer has made the decision to affirm the decision of the GIO Claims Team and considers that you were wholly at fault for the subject accident. Accordingly, your weekly benefits will cease 26 weeks from the date of the motor accident, and, you will not be entitled to treatment and care incurred 26 weeks from the date of the motor accident.”

Ratio Decidendi

Legal Principle Established

The injured person highlighted that the insurer’s submissions as to how the circumstances of a single vehicle accident did not constitute a motor accident and did not fall within the scope of the MAI Act was a submission made in this matter in near identical terms and the injured person argued the decision set a precedent that I should follow. The relevant extracts of Member Cassidy’s reasoning included the following:“64. The thrust of the insurer’s submissions appears to be that in order for the injured person’s accident to be considered a “motor accident” within the definition, her injury must be caused by her use or operation of her vehicle. If her accident was caused, as she says by the sun, then the insurer says it was not caused by her use or operation of the vehicle and therefore she was not injured in a “motor accident” and the insurer has no liability to pay benefits.65. The definition of “motor accident” can apply to a single vehicle accident or a multi-vehicle pile-up. It can apply to an incident such as when a passenger falls in a bus or an accident in its more usual sense of a collision between a vehicle and another vehicle or object. But the incident or accident does not have to be caused by the use or operation of the vehicle, the incident or accident must simply involve the use or operation of a motor vehicle. (emphasis added)66. Whatever the cause of the accident, human or environmental, her injuries were caused as a result of and during her driving of the motorcycle and her collision with the tree.67. I agree with the injured person’s submissions that Ms Yankovich was injured in a “motor accident” within the meaning of section 1.4.70. For the insurer to now argue that the third-party scheme does not provide any benefits to persons injured by “environmental factors” while using or operating a motor vehicle appears to ignore section 3.1(1) and the remainder of Part 3 which provides no such exclusion or restriction.71. The injured person was injured in a “motor accident” and has an entitlement to statutory benefits.” It was submitted that I should not depart from the interpretation taken by Member Cassidy and that if anything the insurer should address in supplementary submissions in reply where these determinations relied upon by the injured person were incorrect and should not be followed. In the submissions dated 10 May 2022 the insurer responded:(a) whilst the injured person seeks to rely upon the determination of Member Cassidy in Yankovich where the Member found the injured person was wholly at fault for the motor accident and concluded:“121, While the word fault in the MAI Act suggests negligence, liability or culpability which in turn suggests blame and guilt, the word fault can also be interpreted to simply mean responsibility. In my view, on the facts and circumstances of this case the responsibility for this accident lies with Ms Yankovich.” (b) this decision is another decision of the Commission that is inconsistent with the decisions ALQ v GIO Insurance and Desmond v GIO [2020] and the Supreme Court in Abberton and the Court of Appeal in Melenewycz, and(c) the Commission’s decision of Yankovich is not binding upon me.