Taylor v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 182
•14 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Taylor v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 182 |
| CLAIMANT: | Gregory Taylor |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | David R Ford |
| DATE OF DECISION: | 14 April 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS- Whether the motor 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; claimant was riding his motorcycle on a road with a 100km/h speed limit; approaching a vehicle which appeared to be stationary at some distance in front of the claimant; no brake lights applied by the vehicle nor right hand indicator activated; vehicle then attempted to make a right hand turn across the roadway into a driveway; claimant on his motorcycle had to take evasive action to avoid a collision; lost control of the motorcycle and sustained injuries; Held- motor accident not caused wholly or mostly by the fault of the claimant; claimant entitled to payment of legal costs assessed at the maximum regulated fee. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.11 and of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 14 April 2022. 4. Legal Costs: The amount of the claimant’s cost assessed in accordance with Motor Accidents Injuries Regulation 2017 is to be assessed at the maximum regulated fee. |
REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT
Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017
BACKGROUND
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d)(e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 (statutory benefits after 26 weeks to injured persons and persons most at fault, or to injured persons with minor injuries).
This is a dispute between Gregory Taylor (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
The insurer undertook an internal review, and a statement of reasons is attached to the reply form and is dated 13 October 2021. The claimant seeks to challenge that determination.
On 10 April 2021 at approximately 3.00pm the claimant was riding his Harley Davidson motorcycle with a group of motorcycle riders in a western direction along Whiley Road heading towards Spring Hill.
At the same time, and at some distance ahead of the claimant’s motorcycle being driven by the insured driver which was towing a galvanised box trailer. It then transpired the insured driver intended to turn right into the driveway of a rural property know as 92 Whiley Road.
As the claimant drove towards the insured motor vehicle, he realised the said vehicle had come to a halt and it appeared the said vehicle was then attempting to make a right-hand turn into the driveway of the said property.
The claimant tried to avoid a collision with the rear of the trailer, applied the brakes of his motorcycle and steered the motorcycle to the left-hand side of the road which caused the motorcycle brakes to lockup and the motorcycle went into a skid and as a consequence the claimant was ejected from the motorcycle and sustained serious injuries.
The claimant was taken by ambulance to Orange Hospital where he was admitted. The claimant sustained the following injuries:
a. Fractured right clavicle.
b. Fracture of the right ankle.
c. Numerous lacerations.
d. Closed head injury.
The insurer undertook an internal review, and the insurer considered the claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under sections 3.28 and 3.36 of the Act were ceased.
The claimant submits he was neither mostly or wholly at fault in the motor accident and he is entitled to a continuation of his statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.
Documents considered
I have considered the documents provided in the Application and the Reply.
Insurer’s submissions
Firstly, the insured driver was not prepared to provide a written statement in relation to the circumstances surrounding his accident. At the special assessment conference, the solicitor for the insurer advised she was informed the insured driver had verbally informed the police officer who attended the scene of the accident that he had engaged his right blinker prior to attempting to make a right hand turn into the said driveway. I advised the solicitor for the insurer, in the absence of a written statement from the insured driver, I was not prepared to accept such hearsay evidence.
I refer to the internal review of the insurer dated 28 October 2021 and this document provides a detailed submission from the insurer in relation to the circumstances surrounding the subject accident and their determination that they consider the claimant to be mostly at fault in the motor vehicle accident.
The submissions are as follows:
a. It follows that at about 3.00pm on Saturday 10 April 2021, the claimant rode motorcycle EKK22 (NSW), a Harley Davidson in a westerly direction along Whiley Road, Spring Hill. That road had one lane of traffic in each direction. The claimant was in company with two other riders and he was positioned at the front of the group, towards the left hand side of the road.
b. The claimant approached an Isuzu D-Max utility, CR39AW (NSW) which was towing a trailer registration V57326 and was also travelling west along Whiley Road.
c. The claimant mistakenly believed that the vehicle was travelling at a similar speed to him, but it had actually slowed to make a right-hand turn into the driveway of a rural property known as 92 Whiley Road. The claimant momentarily looked into his mirror to see what was behind him, intent on overtaking the Isuzu and trailer. When he returned his focus to the road in front of him, the claimant realised the Isuzu and trailer was not moving at the speed he had initially thought and had commenced the right-hand turn into the driveway.
d. The claimant had closed a significant amount of distance from the time he first saw the vehicle and trailer. He braked heavily and the bike skidded. At the last second, he steered the bike to the left-hand side of the road, exiting the bitumen and entering dirt and loose gravel on the roads edge. That evasive action allowed the claimant to avoid colliding with the rear of the trailer, or the vehicle towing it.
e. The claimant lost control and was ejected from the motorcycle, landing in long grass. The motorcycle sustained moderate damage.
f. A police investigation was conducted, and the claimant was deemed at fault. He received an infringement notice for Negligent Riding. Alcohol was not a factor. The accident was recorded in E79310540.
g. In the statements the claimant and witness Lou Godwin suggest the rear right hand indicator of the trailer was not activated as the Isuzu commenced its right-hand turn into the driveway.
h. There is no physical evidence as to whether the indicator on the rear of the trailer was activated as the claimant rode upon the vehicle, but police enquiries made contemporaneous to the accident did not result in any party alleging that the indicator was not on.
i. It follows that the risk of harm was foreseeable and a reasonable person in your position ought to have ascertained and exercised reasonable caution in keeping a safe and proper lookout and distance by listening, looking and observing to take any appropriate steps to correct any change circumstances. This is supported by the version of the claimant and his friend who both corroborate that the claimant first recognised the trailer and vehicle some 200 metres prior.
j. From the facts and statement provided by the claimant and witness that they had seen the truck two hundred metres ahead which indicates that the claimant had ample time to reduce his speed and drive according to the condition and slowed down. Had he kept a proper look out and reduced his speed and paid attention to what was happening ahead he would have been able to avoid the collision, instead the claimant maintained the speed and tried to overtake the truck from the left side and lost control.
k. It is NRMAI’s view that the claimant is wholly at fault for failing to keep a safe and proper lookout as to what was ahead and not paying attention to the surrounding and failing to maintain safe distance with the vehicle ahead and failing to reduce speed instead of trying to overtake from the left side where his motorcycle slipped entering the dirt and gravel on the roads edge.
l. In failing to take the safe precautions of a reasonable driver in your position to avoid the impact and having regard to other road users, your conduct fell below that of a reasonable person in your position.
m. Accordingly, the original decision is affirmed that you are wholly at fault and there will be no change in the management of your claim.
Claimant’s submissions
The insurer arranged for the claimant to be interviewed by their investigator and I refer to the record of the interview dated 2 May 2021. The record of interview was lodged on the portal and the pages have been paginated. On page 116 I note the following:
Q144
And how far away from you do you think that was when you first saw it that vehicle?
A
Oh, two hundred metres. Maybe. I, I’m only guessing. I couldn’t tell you
Q145
When you first saw that vehicle, did you believe that It was moving?
A
Yes. I, I thought it was do… it was doing its eighty k’s cause there was no lights, no blinkers, no brake lights.
Q146
And do you know what the speed limit is in that area?
A
Hundred kilometres.
Q147
And what were you riding at the time?
A
I’d say ninety to a hundred, just normal speed.
Q148
And as you got closer to that vehicle and you looked in your mirror to consider to overtake, what happened then?
A
Well, I looked back and realised the vehicle had stopped or didn’t move at all. Hadn’t gone anywhere.
Q149
And?
A
…. And so ive picked, picked the line which is left and I can’t remember anything after that.
Q150
Thank you and when you say pick a line, what was that in order to do?
A
That’s to ride my bike, a path to take where I could try to get out of this situation….
Q151
Yeah but….
A
….without running into the trailer.
I also refer to paginated page 122 as follows:
Q198
Do you remember if there was anything coming in the other direction?
A
No, there wasn’t.
The claimant also provided a further written statement (paginated page 188) and I note the following:
“Whiley Road as it runs up to the town of Spring Hill turns left off Millthorpe Road. It is straight for about one kilometre and it then veers to the left. At no point prior to Whiley Road veering to the left did I see the other vehicle. I was keeping a proper lookout and riding my motorcycle at less than 100km/h. The weather conditions were fine and dry and the traffic was light. As I came around the left veer and bend in the road I saw the other vehicle. When I first saw it I thought it was moving and I knew that the double white lines had ceased and I was permitted to overtake so I looked in my mirror to see whether there was anything on my right to prevent me overtaking and then I looked back in front of me and noticed that the vehicle was in fact stationary. I estimate that from the time when I first saw the vehicle, looked into my mirror and then looked back this was a period of about four seconds and I was approaching the vehicle quickly and as I said to the investigator I needed to pick a line to try and avoid colliding with the vehicle and chose to go towards the left. I put on my brakes and attempted to avoid the vehicle and that is how the crash occurred.
There was no sign or any person warning me that the other vehicle was stationary. It did not have its brake lights on, it did not have its hazard lights flashing and there was otherwise no means of me knowing that the vehicle was stationary.
There is no way the vehicle had been brought to a stationary position slowly because I never saw it to have its brake lights illuminated. It is clear to me now that this vehicle was stationary the entire time from when I first saw it but because I was about 200 metres away from it when I first saw it I could not initially judge that it was stationary. It did not have its right indicator on or its left indicator on and there was otherwise no way of me knowing was stationary when I first saw it.
The insurer arranged for an investigator to interview a witness Kevin Middleton by telephone and there is a record of such interview on 12 May 2021. I refer to paginated page 169 as follows:
Q23
Great, look, probably the easiest way to get through this, can you tell me what happened.
A
Oh mate. Well um, ah, we came off the um, the ah, the main road from the highway to Millthorpe to turn back towards Spring Hill. It was a fairly long street there. Um, I was probably a good hundred, hundred and fifty metres um, behind Lou and Greg. Um, I had a pillion passenger on behind me. Um yeah, and ah I could see in front of them there was a um, well, at the time, I could only see it as a, stock float, sort of as big as a horse, double horse float type of thing. I couldn’t see what was pulling it cause it was behind it of course. Um, sun in our eyes a little bit I guess you’d say and um, next thing I know, all I seen was um, smoke flying out of motorbike tyres and also realised that he must have been stopped dead in the road, in the middle of the road and they were trying to ah, trying to pull up as quick as they could and um, I seen Lou go down the ah, right hand side of the trailer and pull up safely and um, Greg not being able to pull up quite as well. Um I don’t believe his bike had ABS but Lou’s did and um, he was oh, getting a little bit sideways, I suppose with his back wheel locked up and I thought he’s going to slam into a trailer and just last moment, he seemed to let his brakes off and it spat him out to the left, down the side of the trailer and um, yeah, his bike pulled up reasonably quick after a couple of slips into the grass and um, Greg kept on going um, yeah, head over tail um, probably two or three flips I’d imagine before he came to a, came to a stop.
Q24
Thanks Kevin, and when you say stopped dead in the road, do you mean that the vehicle that was towing the trailer?
A
Yes mate. Yeah. It just didn’t seem to move. Like I said I was, I was a bit further back than what they were but didn’t seem to be moving anywhere. If I was surmising anything Andrew, I… because when I pulled up there, they were an older couple and it looked ….cause there was a, a um, a stock ramp there and a set of double gates and I think they were deciding whether the trailer would fit over the stock ramp or whether they had to , whether they had to um, go and open the double gates and they were sort of in two minds about whether they were going to do that or not um, and I think that’s why they were stopped there and weren’t, weren’t expecting someone to come up behind them and um all of a sudden um, yeah, all hell broke loose.
Q25
Thank you, and I know that you were a hundred to a hundred and fifty metres behind Greg and Lou.
A
Mm.
Q26
When you first saw that stock trailer, can you estimate how far away from you it was?
A
Um, oh, mate, I don’t know. Like I said, if, if it, if they were, if they were a hundred metres away from it and I was a hundred metres behind them, I might have been two hundred metres away from it but you know but perhaps not that far either. You know it all happened rather quickly. I might have only been a hundred fifty or a hundred metres. Its um……
Q27
Yes.
A
….it all happened that quickly but I was, I was, I wasn’t that far like I could, I could see everything happen very clearly so it wasn’t as if I was hundreds of metres away
Q28
Yeah, thank you. Where I was going to lead with that was from your riding experience, when you look at something that’s ahead of you sort of two hundred odd, maybe two hundred and fifty metres ahead, is it challenging to see if something’s stopped in the road at that point as opposed to whether it’s in motion?
A
Oh, it is mate, for sure.
Q29
Yeah
A
Um, you know cause its very hard…. On a dead straight road its very hard to get a, get a perspective on something when you’re looking at the very back of it cause there’s, there’s no reference point to….. cause its as if you’re going around a curve so you can’t really see whether it’s moving or not.
I also refer to paginated page 174 as follows:
Q54
Yeah, Thank you. And that particular vehicle and the horse float, do you know what it did after you know, Greg had come off the motorcycle?
A
It turned right in towards the um, the property where it, where it decided it was going to turn into but it turned, turned right and pulled up in front of the double gates like, like as if that was the position they eventually made, they were gonna pull up, pull up in front of the double gates.
I also refer to paginated page 39 as follows:
Q67
And do you believe they were attempting to turn into a driveway or something to their right?
A
Yes, yes. So, I did actually talk to an other couple I believe were the drivers. Im not a hundred precent because I was a little bit shaken up but I do believe they were going to the driveway so there was a driveway with a grid and then right next to the grid was a set of double gates. I believe they were looking to see if they could get over the grid or if they had to use the gates to go into that property to get hay.
Q68
Thank you. And just to be absolutely clear, as you were approaching the rear of that vehicle you didn’t see a right hand indicator on either the trailer or the vehicle?
A
No, no, no. There was definitely no indicator otherwise I wouldn’t have went the way I went either. I probably would have tried to go the same way as Greg.
Q69
And at any point in time before getting onto the brakes, did you see the brake lights of that trailer come on?
A
Right when I had got on my brakes, yes. They had just come to a complete stop in the middle of the road so the couple of photos that I have sent through to yah …
I refer to paginated page 37 as follows:
Q53
Thank you. Now, as you got closer to that vehicle, when did you first see it do something other than driving in a straight direction?
A
So, I’m coming up behind it and as we’ve got it a safe di … distance to overtake I’ve kind of gone to overtake and then realised they, they have just stopped. Um, no blinkers, just brake light has just come on dead stop and um, that’s when I broke.
The insurer arranged for an investigator to also interview Lou Godwin and I refer to the record of telephone interview dated 6 May 2021. I refer to paginated page 150 and the following:
Q50
And was it your believe that the vehicle was in motion when you first saw it?
A
Yes, yes. It was travelling along all the way coming up to it. IT was travelling along…. I, I couldn’t say what speed but yes, to me it was moving along. I, I didn’t…it… at, at all felt I needed to brake or anything like that.
I refer to paginated page 153 as follows:
Q68
Thank you and just to be absolutely clear, as you were approaching the rear of that vehicle you didn’t see a right hand indicator on either the trailer or the vehicle?
A
No, no, no. There was definitely no indictor otherwise I wouldn’t have went the way I went either. I probably would have tried to go the same way as greg.
A69
And at any point in time before getting onto the brakes, did you see the brake lights of the trailer come on?
A
Right when I got on my brakes, yes. They had just come to a complete stop in the middle of the road so the couple of photos that I have sent through to yah….
There was a further statement taken from Mr Godwin and I refer to paginated page 189 as follows:
3.
When I first saw the truck I was about 20 m behind Greg Taylor I first saw the truck as I came around a left bend on Whiley’s Road. The truck was about 200m from me. When I first saw the truck it was definitely moving in a forward direction and it was not stationary. I kept my eyes on the truck because I judged it was moving at a slow speed and a speed slow enough to permit me to safely go around it on the right-hand side. In keeping my eyes on the truck I observed that at no point did its brake lights or indicators illuminate. After about 3 to 4 seconds from first seeing it I observed it to stop and come to a complete halt. At that point Greg was about 50 m from it and I then observed Greg to put on his brakes and attempt to go to the left to avoid the truck.
4.
I have ridden motorcycles for about 15 years and in my opinion, there is absolutely no way Greg was able to avoid the accident. Greg did everything he possibly could to avoid collision with the truck. The truck was most definitely at fault because it was travelling and then without any warning it came to a complete halt.
I also refer to the record of interview between the investigator appointed by the insurer and constable Jason Burcher. I refer to paginated page 59 as follows:
Q33
Did you have cause to obtain a Version from Mr McNeill about what had occurred?
A
Yeah because it’s a motor vehicle accident, I … he was the driver, um, obviously we got there, we breathalysed him um, and then got a Version from him um, ah …
Q34
Was his breath test negative?
A
It was a negative breath test. Yep.
Q35
And are you in a position to relay the Version that he gave to you at the accident scene?
A
Ah, yeah. So, he told us that he was ah, travelling West on Whiley Road. Ah, he was in the area. He’s not from here. He’s from South Coast. He was here to pick up some cattle um, and they were looking for the driveway. Um, when they saw it, they stopped, put the indicator on to go around and then they’ve turned in and then they’ve heard some noise and turned around and um, then Gregory Taylor was off the side of the road. They didn’t know it was Gregory Taylor though.
Q36
Thank you. And is it your understanding or do you know whether they came to a complete stop before they attempted to make that turn into the driveway?
A
Ah, he did say he did stop. Um, they stopped for a period of time. It was a short period of time, just to confirm that that was the house they were meant to be at and then they started the turn into the driveway.
Q37
And is there any evidence of whether or not he had his indicator on at the time of being stopped?
A
Ah, look, I … um, Colin himself said he definitely had the indicator on. Um, also ah, other riders that were with Gregory Taylor, they said that they did see the indicator on as they were coming up behind the car ‘cause they were behind Gregory um …
Q38
Okay. Thank you.
A
… as well. Yep.
Q39
And that turn that Mr McNeill was going to make in the four wheel drive, was that a right hand turn?
A
It was a right hand turn. Yeah.
I refer to paginated page 61 as follows:
Q56
Thank you. And as part of your enquiries, does any testing get done at the scene of whether or not the lights were working or the indicators were working?
A
Ah, we did … his lights were on at the time. Um, you could see um, the rear ah, what do you call? Tail lights of the trailer, you could see that they were on. Um, we did not test the indicator as because he told us they were on. Witnesses told us that it was working, that they had seen it.
Q57
Yep.
A
Ah …
Q58
So, you were satisfied that …
A
I was satisfied that …
Q59
Yep.
A
… the indicator was on. Um, ah, other than that, there was no testing on the other vehicle.
I refer to further paginated page 63 as follows:
Q80
… if that’s alright?
A
So, the Event Number is E79310540.
Q81
Thank you.
A
… Ah, so at the start we’ve got all motor vehicles and drivers’ information all recorded. Um, Mr Taylor is considered as vehicle one um, and Mr McNeill’s considered as vehicle two in this matter. Ah, vehicle one is a Harley Davidson motorcycle. Vehicle two is a Isuzu D-Max Utility and it was towing a trailer. Ah, “Vehicle one was travelling West on Whiley Road at about a hundred kilometres per hour. Vehicle two was stationary facing West at the time indicating to turn right into a driveway. Vehicle one approached vehicle two and attempted to overtake. As vehicle one came closer, the rider noticed the indicator of vehicle two signalling right. The rider of vehicle one then made a left turn to avoid a collision and ran off the road. The rider fell off the bike and himself and the bike stopped in a ditch on the side of the road. No collision was caused between the two vehicles. The rider was conveyed to Orange Hospital because he has sustained injuries to his shoulder and foot. Police are yet to speak with the rider due to him being treated for his injuries at the time. Police arrived at the hospital. A Version will be obtained from the rider at a later date. Conditions of the road were dry, sealed and traffic was low at the time of the accident. Visibility was good in natural daylight.” So, from there, a Case was made I believe.
Q82
And just I suppose for identification purposes, I know that we are talking about the same parties but …
A
Yep.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
i.the Act;
ii.Motor Accident Injuries Act Regulation 2017;
iii.Motor Accident Guidelines 2020, and
iv.Civil Liability Act 2002 (NSW).
REASONS
Was the motor accident caused wholly by the fault of the claimant?
I again state there is no statement from the insured’s driver. I accept the statement of the claimant and the other motorcycle riders referred to above and I find at no time did the insured driver engage his right blinker before attempting to make a right hand turn into the driveway of the rural property.
I also find that at no time did the insured’s driver engage his brake lights to indicate his vehicle was slowing down. I do find the brake lights were engaged but only when the insured’s driver commenced to make his right-hand turn.
I also find there was ample opportunity for the insured’s driver to check his rear vision mirror to ensure there was no oncoming traffic, having regard to the fact, I find he would have had a clear vision behind him of up to two hundred metres and had he looked, he would have seen the claimant and the other oncoming motorcyclists.
I find the insured’s driver was travelling at a very slow speed if at all, which made it difficult for the claimant to be put on notice as to the possible intentions of the insured’s driver with regard to the driving of his vehicle. I find it was incumbent upon the insured’s driver to check his rear-view mirror to insure there were no other motor vehicle or motorcycles approaching from the rear.
When making such a right-hand turn, as happened in this case, the driver of the motor vehicle attempting this manoeuvre, should be keeping a proper lookout, which includes not only looking towards oncoming traffic, but also any traffic approaching from the rear.
I therefore find the insured’s driver negligent in the driving of his vehicle, as he had not kept a proper lookout, failed to look into the rear-view side mirror for approaching traffic from the rear, and therefore, attempting to make a right hand turn into the driveway when it was unsafe to do so.
I also find the insured’s driver should not have been driving at such a slow speed having regard to the fact he was travelling in a 100km/h speed zone and should have engaged the right-hand blinker well before attempting to make the right hand turn into the driveway.
I therefore find the claimant was not wholly at fault in causing the accident.
Was the accident caused mostly by the fault of the claimant?
The onus proving contributory negligence rests upon the insurer.
In deciding whether the claimant was guilty of contributory negligence, I must have regard to the standard of care set out in section 5R of the Civil Liability Act 2002 (NSW).
As stated above, I find the insured’s driver was not keeping a proper lookout and should have looked into his rear-view mirror before attempting to make a right hand turn into the driveway. If he had done so, he would have seen the claimant approaching on his motorcycle and allowed him to pass safely.
I find the claimant is not guilty of any contributory negligence in the circumstances of this accident as, for the reasons stated above, it was not evident to the claimant at any time that the insured’s driver would be attempting to make a right hand turn into the driveway. The claimant was riding his motorcycle at a safe speed in all the circumstances and not in excess of the speed limit for this particular roadway.
Counsel for the claimant also referred me to the decision of the Isley V Boots NSW Court of Appeal 1969. I found this decision to be highly relevant to the facts and circumstances of this case. I note the following at paragraph 30:
“On the defendant’s own account of what happened he was guilty of a breach of duty of care by not ascertaining there was no car approaching at the time when he commenced his turn or that no car was approaching in such proximity that he should have taken that proximity into account.
In the circumstance, the defendant was bound to ascertain accurately the condition of the road behind him in relation to traffic. The defendant’s breach of duty of care was still operating and operative at the time when the collision occurred.”
Counsel for the insurer also referred to me the decision of AIO v AIG t/as NRMA (claims assessment) 2020 NSW SIRADRS16.
The solicitor for the insurer submitted I should find the claimant was guilty of contributory negligence to the extent of 80%. I reject this submission.
Accordingly, I find the motor accident was not caused mostly by the fault of the claimant.
FINDINGS
I therefore find the accident of 10 April 2021 was not caused wholly by the fault of the claimant.
I find the action of 30 April 2021 was not caused mostly by the fault of the claimant.
COSTS AND DISBURSEMENTS
Costs are awarded in accordance with the Motor Accident Injuries Act Regulation 2017 Schedule 1, and I award the claimant his costs which I assessed at the maximum regulated fee.
CONCLUSION
My determination of the miscellaneous claim is as follows:
a. For the purposes of sections 3.28 and 3.36, the motor accident was caused by the fault of another person.
b. For the purposed of sections 3.28 and 3.36 the motor accident was not caused by the fault of the injured person.
c. Effective Date:
This determination takes effect on 14 April 2022.
d. Legal Costs:
The amount of the claimant’s cost assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is asssessed at the maximum regulated fee.
David Ford
Member (Motor Accidents Division)
Personal Injury Commission
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