Stuparu v GIO

Case [2021] NSWPIC 189
CERTIFICATE OF DETERMINATION OF MEMBER 
Citation: Stuparu v GIO [2021] NSWPIC 189
APPLICANT: Alexandru Stuparu
RESPONDENT: GIO
Member: Terence Stern
DATE OF DECISION: 23 June 2021
CATCHWORDS:

MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act 2017; motorcycle accident; T-intersection; vehicle failed to give way; Police and Ambulance did not attend; fractured left-hand; swerve then came off his motorcycle; raining; rider fell with his motorcycle, and he skidded along the road with his bike; independent witnesses; conflict in the evidence; contributory negligence; Held- driver of the vehicle at the T-intersection most likely more responsible than the claimant.
Determinations made:

1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the Claimant.

2.   Effective Date: This determination takes effect on 16 June 2021.

3.   Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accidents Compensation Regulation 2015, Personal Injury Commission Regulation 2020 is $1,796.30.

4.   A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

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

NATURE OF THE DISPUTE

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) (e) of the Motor Accident Injuries Act2017, about whether the Claimant who sustained injury in a motor vehicle accident on 10 September 2020 was the person mostly at fault.

Background

  1. The Claimant alleges he was injured in a motor vehicle accident on 10 September 2020.

  2. The insured driver alleges that an unidentified vehicle was at fault.

  3. Police did not attend.

  4. The Claimant reported the accident to the Police on 18 September 2020.

  5. The Police did not investigate the accident.

  6. The Insurer alleges the Claimant was wholly or mostly at fault.

Issue

  1. The issue in dispute is whether, for the purposed of the Motor Accident Injuries Act2017 (‘the Act’), the Claimant was mostly at fault.

Abbreviations

  1. I use the following Abbreviations in these Reasons:

Alexandru Stuparu ‘Claimant’
AAI Limited ABN 48 005 297 807 AFSL 230859 t/as GIO ‘GIO’
Date of Original Decision Denying liability of statutory benefits of 21 December 2020 “Original Decision ‘Original Decision’
Internal Review 2 February 2021 ‘Internal Review’
Accident of 10 September 2020 ‘the accident’
Application for Personal Injury benefits by the Claimant ‘APIB’
Open Reduction and Internal Fixation ‘ORIF’

Chronology

  1. I briefly set out the Chronology:

15 September 1996 Birth of the Claimant
10 September 2020 at about 8.30 pm Accident
28 September 2020 Claimant lodges APIB
21 December 2020 Liability Notice – Benefits after 26 weeks issued by GIO denying liability for payment of Statutory Benefits after 26 weeks
21 January 2021 Application for Internal Review
2 February 2021 Internal Review upholds decision of 21 December 2020 denying liability

Evidence

Claimant’s Statement of 16 May 2021

  1. The Claimant made a statement on 6 May 2021 which I briefly…

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Stuparu v GIO [2021] NSWPIC 189
Case
[2021] NSWPIC 189
Decision Date

CaseChat Overview and Summary

In the matter of Stuparu v GIO, the claimant sought compensation for injuries sustained in a motorcycle accident. The dispute centered on the degree of fault attributable to each party under the Motor Accident Injuries Act 2017, specifically whether the accident was caused mostly by the claimant's fault as per section 3.28. The case was heard in the Supreme Court of New South Wales.

The legal issues at the heart of this case were whether the claimant's actions contributed to the accident to such an extent that he was more than 60% at fault, and whether the driver of the vehicle involved in the accident was negligent. The court had to determine the respective shares of responsibility for the damage by comparing the culpability of both parties, taking into account the evidence provided by independent witnesses and the circumstances of the accident.

His Honour carefully weighed the conflicting evidence from various witnesses, including the claimant, independent witnesses, and the driver of the vehicle involved. The court found that the evidence of the driver was consistent and should be preferred over the claimant's evidence and that of another witness. It was concluded that the claimant lost control of his motorcycle while negotiating a turn in wet conditions. Despite the insurer's argument that the accident was caused wholly or mostly by the claimant's fault, the court found that the driver of the vehicle at the T-intersection was more likely to be responsible than the claimant. The court thus held that the claimant was not more than 60% at fault.

The final orders of the court were that the insurer was liable for the claimant's damages, as the claimant's contribution to the accident was not more than 60%. The court determined that the driver of the vehicle was primarily responsible for the accident, thereby absolving the claimant of a significant portion of the fault.

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

His Honour then referred to the decision in Podrebersek v Australia Iron and Steel Pty Ltd 59 ALJR 492 at [43]: “The making of an apportionment as between the Plaintiff and the Defendant of the respective shares in the responsibility of the damage involves a comparison base of culpability, i.e. of the degree of departure from the standard of the reasonable man … and of the relative importance of the acts on the parties in causing the damage…” His Honour continued [53] to state that there were difficulties in applying the same legal principles in determining the negligence of the defendant and whether the injured party was contributorily negligent in failing to take precautions against the risk of harm. In Boral Bricks Pty Limited v Cosmidis (No 2) [2014] NSWCA 139, Basten JA, with whom Emmet JA agreed, referred to section 5R of the Civil Liability Act at paragraph [99] – [100]. McColl JA would have assessed contributory negligence at 10% (as against 30% from the majority) said [47]:“The correct legal question in determining the issue of contributory negligence in accordance with s 5R is ‘whether a reasonable person in the position of the [plaintiff], i.e. having the knowledge which the [plaintiff] had, or ought to have had, was negligent’...” In Manley v Alexander [2005] HCA 79 the respondent was struck and injured by a tow truck when he was lying down on the carriageway on Middleton Beach Road. The appellant was travelling along the same road and was distracted by the friend of the respondent whom he believed was intoxicated. Believing that the friend was going to step out onto the road, veered to the centre of the road and maintained his speed. He then noticed something lying in the carriage way commenced braking, then thought he should not and as a consequence ran over the respondent. Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:“It may readily be accepted that the possibility that someone would be found lying on a roadway… at 4.00 am is… remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.” I briefly summarise:1.-10. deals with background only.11. refers to the Claimant’s statement.12. refers to Constable Stojanovski’s statement.14. refers to the Discharge Summary.15. refers to the Statement of Wafaa Najem. 16. refers to the Statement of Ivy Ho.17. refers to the Statement of Richard Nicholas.19. not apparent whether the Claimant makes any allegation of negligence on the part of Wafaa Najem.20. the Police report is limited to the details provided by the Claimant. I should have more regard to the evidence the Claimant did not provide to the Police.21.1. the evidence of Richard Nicholas is contradicted by the evidence of the Claimant, two independent witnesses and Constable Stojanovski and should be treated with caution as he is not an independent witness.21.2. the evidence of Wafaa Najem is consistent and should be preferred to the evidence of the Claimant and Richard Nicholas. 22.1. the Claimant has failed to establish that an unidentified vehicle commenced to make a right-hand turn into Salisbury Avenue across the path of the Claimant causing him to lose control of his vehicle. 22.2. on the balance of probabilities, the Claimant lost control of his motorcycle negotiating the turn from McEvoy Street into Stoney Creek Road in wet conditions.23. where I accept where the accident occurred and set out in the preceding paragraphs, the insurer submits that for the purposes of s 3.11 and s 3.28 of the Act the accident was caused wholly or mostly by the fault of the Claimant.24. if I am satisfied that the vehicle driven by Wafaa Najem was involved and contributed to the Claimant losing control I should still find that the Claimant’s contribution was more than 61%.25. refers to s 5R of the Civil Liability Act 2002.26. refers to Manley v Alexander [2005] HCA 79.27. the Claimant knew or ought to have known that the vehicle driven by Wafaa Najem was intending to make a turn from Salisbury Street into Stoney Creek Road and that a reasonable rider would have modified his riding to permit him to stop safely in wet conditions in the event of an emergency.

Ratio Decidendi

Legal Principle Established

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