Smythe v CIC Allianz Insurance Limited [2022] NSWPIC 758
CLAIMANT:
Joanna Smythe
INSURER:
CIC-Allianz
MEMBER:
Bridie Nolan
DATE OF DECISION:
13 November 2022
CATCHWORDS:
MOTOR ACCIDENTS -Motor Accident Injuries Act 2017 (MAI Act); combined miscellaneous claims assessment; claimant was a pedestrian injured by collision with insured taxi; failure to use a pedestrian crossing due to unawareness of its existence; claimant perceived there to be no immediate oncoming traffic while she moved between stationary vehicles in preparation to cross; claimant could see to her left and right according to the expert opinion; no evidence of alcohol or drugs contributing to the accident; whether the motor accident was caused by the fault of another person; general assessment of damages for non-economic loss; contributory negligence; dispute as to costs; whether the claimant kept a proper lookout; whether the provisions of section 5.1 are engaged; whether the accident is therefore a no-fault motor accident because it was not caused by the fault of the owner or driver of any motor vehicle involved in the accident and was not caused by the fault of any other person; Held – insured driver not “at fault”; the apportionment exercise required by sections 3.11 and 3.28 of the MAI Act cannot apply unless there is another tortfeasor; the claimant, who cannot be “at fault”, cannot therefore be “wholly or mostly at fault”; no reduction in statutory benefits therefore permitted; assessment of non-economic loss reduced in accordance with the provisions of section 5.5; insurer’s solicitor’s costs permitted under section 8.3(4).
DETERMINATIONS MADE:
CERTIFICATE OF DETERMINATION
Damages claim
In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the MAI Act), the Personal Commission’s (the Commission) determination of the Miscellaneous Claims Assessment Dispute and the Damages Claim is as follows:
1. For the purposes of s 3.11 of the MAI Act, the motor accident was not caused by the fault of another person.
2. The effective date of the determination in paragraph 1 above takes effect on 1 July 2019.
3. The amount of the claimant’s costs in the miscellaneous claims assessment matter is $1,876 inclusive of GST.
4. The amount of damages I have assessed as owing to the claimant is $300,000, which I have reduced in accordance with the provisions of s 5.5 of the MAI Act by 15%, to award, $255,000.
5. The amount of the claimant’s costs in the common law damages claim matter is $42,186.17 inclusive of GST calculated in accordance with the attached calculation sheet.
6. I permit the Australian legal practitioner retained by the insurer to be paid her legal costs incurred in representing the insurer in connection to the claim for statutory benefits pursuant to s 8.3 (4) of the Act at the rate of $311 per hour ex GST.
The claimant, Joanna Smythe, (the claimant) makes two applications:
(a) the determination of a miscellaneous claims assessment pursuant…
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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AGLC
Smythe v Cic Allianz Insurance Limited [2022] NSWPIC 758
Case
[2022] NSWPIC 758
Decision Date
CaseChat Overview and Summary
In the case of Smythe v Cic Allianz Insurance Limited, the claimant, a pedestrian, was injured by a collision with a taxi, leading to a dispute over the fault of the accident and subsequent compensation. The matter was heard in the relevant Australian court. The primary issue for the court was to determine whether the accident was caused by the fault of another person and to what extent the claimant's actions contributed to the incident. This determination was crucial for assessing damages under the Motor Accident Injuries Act 2017 (MAI Act).
The court meticulously examined the facts surrounding the incident, including the claimant's awareness of pedestrian crossings and her perception of oncoming traffic. Expert opinions were considered, and the court found that the claimant was not under the influence of alcohol or drugs at the time of the accident. The court concluded that the taxi driver was not at fault, thus the provisions of section 5.1 of the MAI Act were engaged. Since the accident was not caused by the fault of any other person, it was deemed a no-fault motor accident. The court further determined that the claimant, being unable to be "at fault," could not be "wholly or mostly at fault," thereby prohibiting any reduction in statutory benefits. However, the assessment of non-economic loss was reduced according to the provisions of section 5.5 of the MAI Act.
Following these determinations, the court ordered that the insurer’s solicitor’s costs were permissible under section 8.3(4) of the MAI Act. This ruling ensured that the claimant received a fair assessment of damages while upholding the statutory framework governing motor accident compensation in Australia.