Sarcasmo v AAI Limited t/as GIO - [2021] NSWPIC 337

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sarcasmo v AAI Limited t/as GIO [2021] NSWPIC 337
CLAIMANT:	Jake Sarcasmo
INSURER:	AAI Limited t/as GIO
MEMBER:	Brett Williams
DATE OF DECISION:	7 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous assessment matter; the claimant was crossing the road at intersection on his electric scooter; insured driver was travelling in a westerly direction along Captain Cook Drive approaching the intersection; collision between the claimant and the insured driver occurred at the intersection; at all times when the claimant was crossing the road he had a red ‘don’t walk’ pedestrian signal facing him; speed limit 60km/h; insured driver travelling below the speed limit; insured driver faced with a solid green light; claimant’s scooter collided with the driver’s side of the insured driver’s vehicle; whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; Held - insured driver was keeping a proper lookout; insured driver did not breach the duty of care owed; accident not caused by the fault of the insured driver; accident caused wholly by the fault of the claimant.
DETERMINATIONS MADE:	1.For the purposes of section 3.11 the motor accident was caused wholly by the fault of the claimant. 2.For the purposes of section 3.28 the motor accident was caused wholly by the fault of the claimant. 3.Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Act and Regulation 2017 is $1,660 plus GST. .

Reasons for Decision

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

Background

On 12 May 2020 at approximately 1.45 pm, Jake Sarcasmo (the claimant) was crossing the road at the intersection of Taren Point Road and Captain Cook Drive, Caringbah on his electric scooter. The insured driver was travelling in a westerly direction along Captain Cook Drive approaching the intersection of Taren Point Road. A collision between the claimant and the insured driver occurred at the intersection (the accident).
The claimant submitted an application for personal injury benefits to the insurer dated 20 May 2020. The insurer accepted liability to pay statutory benefits for the first 26 weeks after the accident. By letter dated 26 August 2020 the insurer denied liability to pay statutory benefits after the first 26 weeks on the basis that the accident was caused mostly by the fault of the claimant, the insurer having assessed the claimant’s contributory negligence at 75%. At the claimant’s request an internal review of this decision was conducted. On 19 November 2020 the internal reviewer found that the accident had been caused wholly by the fault of the claimant. As a consequence of this decision the claimant was not entitled to weekly payments of statutory benefits[1] or benefits for treatment and care[2] more than 26 weeks after the accident.
[1] s 3.11(1)(a) Motor Accident Injuries Act 2017 (MAI Act).
[2] s 3.28(1)(a) MAI Act.
The claimant commenced these proceedings in…

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: [2021] NSWPIC 337
Decision Date: 7 September 2021

CaseChat Overview and Summary

In Sarcasmo v AAI Limited t/as GIO, the claimant, while crossing the road on his electric scooter, collided with a vehicle driven by an insured driver. The claimant was crossing at an intersection with a red ‘don’t walk’ pedestrian signal, while the driver was travelling in a westerly direction along Captain Cook Drive with a solid green light. The speed limit at the intersection was 60 km/h, and the driver was travelling below that limit. The collision occurred at the intersection, with the claimant’s scooter hitting the driver’s side of the vehicle. The court had to determine whether the 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.

The primary legal issue before the court was to ascertain whether the accident was caused wholly or mostly by the claimant’s fault. This involved examining whether the driver breached any duty of care and whether the driver was keeping a proper lookout. Given that the claimant was crossing against a red signal, it was inherently risky. The court also needed to consider if the driver's actions, or lack thereof, contributed to the accident.

The court found that the driver was keeping a proper lookout and did not breach any duty of care owed to the claimant. The driver was following the traffic signals and was not speeding. Given these circumstances, the court concluded that the accident was not caused by the fault of the driver. Instead, the accident was caused wholly by the claimant’s fault, due to the claimant crossing the road when the pedestrian signal was red.

The court ordered that the claimant’s claim against the insured driver was dismissed, and there was no entitlement to any compensation. The decision underscored the importance of adhering to traffic signals and the potential consequences of disregarding such signals.

Orders