Scott v AAI Limited t/as GIO - [2022] NSWPIC 544

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Scott v AAI Limited t/as GIO [2022] NSWPIC 544
Claimant:	Robert James Scott
insurer:	AAI Limited trading as GIO
Member:	Susan McTegg
DATE OF DECISION:	30 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act, 2017; claimant sustained serious injury; claimant riding motorcycle travelled behind bus in lane 2 before moving into lane 1 as the bus commenced to make left hand turn colliding with the bus; Held – bus activated left hand indicator at time claimant travelling behind bus in same lane; indicator was working; claimant failed to observe indicator and “do not overtake turning vehicle” sign on rear of bus; claimant failed to observe the slowing of the bus and the movement of the bus (albeit briefly) into lane one before attempting to drive past the bus; claimant failed to keep a proper lookout; claimant was wholly at fault for accident; costs assessed on the basis of exceptional circumstances.
determinations made:	1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $26,374.02 inclusive of GST.

REASONS FOR DECISION
INTRODUCTION

Mr Robert James Scott (the claimant) sustained serious injury whilst riding his motor bike on 3 December 2018 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer liable to pay statutory benefits to Mr Scott under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Scott completed an Application for Personal Injury Benefits on 7 December 2018.
On 5 February 2021 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis Mr Scott was wholly at fault for the accident.
On 5 February 2021 an application for an internal review was submitted by Mr Scott.
In an Internal Review Decision dated 22 February 2021 the insurer confirmed the decision that Mr Scott was wholly or mostly at fault for the accident.
Mr Scott lodged an application in the Personal Injury Commission (the Commission) on 23 April 2021.
In issue are the following disputes:
a. whether for the purposes of s 3.11 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant, and
b. whether for the purposes of s 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.

JURISDICTION

The Commission was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC…

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.

Keep reading for free

Create a free CaseChat account to read Scott v AAI Limited t/as GIO and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPIC 544
Decision Date: 30 September 2022

CaseChat Overview and Summary

Scott brought an action against AAI Limited trading as GIO, seeking compensation for serious injuries sustained in a motor accident. The incident involved Scott riding a motorcycle behind a bus in lane 2, subsequently moving into lane 1 as the bus began a left turn, resulting in a collision. The court was tasked with assessing the degree of fault attributable to Scott and the impact on his claim under the Motor Accident Injuries Act, 2017.

The primary legal issue was the extent of Scott's fault in the accident and whether this fault should preclude or reduce his entitlement to compensation. The court considered whether Scott was wholly or mostly at fault, as per sections 3.11 and 3.28 of the Act. Specifically, the court examined Scott's failure to observe the bus's left-hand indicator, the "do not overtake turning vehicle" sign on the bus, and the bus's slight movement into lane one. Additionally, the court evaluated whether Scott failed to keep a proper lookout and the implications of these findings on his claim.

The court concluded that Scott was wholly at fault for the accident. The reasoning hinged on Scott's failure to observe the bus's left-hand indicator, the warning sign, and the bus's movement, compounded by his failure to maintain a proper lookout. As a result, the court held that Scott's claim was barred by the provisions of the Act concerning contributory negligence. The court ordered that Scott's costs be assessed on the basis of exceptional circumstances, reflecting the unique and significant issues presented in this case.

Orders