Vanoostwaard v AAI Limited t/as GIO
[2023] NSWPIC 97
•13 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Vanoostwaard v AAI Limited t/as GIO [2023] NSWPIC 97 |
| Claimant: | Shane Vanoostwaard |
| insurer: | AAI Limited t/as GIO |
| Member: | Belinda Cassidy |
| DATE OF DECISION: | 13 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; liability denied for ongoing benefits on basis that claimant wholly at fault; claimant riding motorbike in rural setting when he had difficulty negotiating a cattle grid in the gravel road, lost control and hit an embankment on the other side of the grid; Held – claimant wholly at fault; cause of accident was claimant’s front wheel hitting the front of the cattle grid which dislodged claimant in his seat; as he regained his seat he accidentally adjusted the throttle and increased speed which led to him losing control and hitting the embankment; consideration of the term “fault” and the application of the principles of negligence in the Civil Liability Act2002 to claims for statutory benefits under Part 3 of the 2017 Act. |
| determinations made: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly 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 by the fault of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
Shane Vanoostwaard was involved in a motor accident on 14 October 2022.
Mr Vanoostwaard was riding his motorbike along Thunderbolts Way near Curricabark when he collided with a bank of dirt after crossing a cattle grid in the road.
Mr Vanoostwaard was seriously injured sustaining fractures to his right hand, nose, and right shoulder. His most significant injuries included five fractures to his pelvis.
On or about 20 October 2022, Mr Vanoostwaard made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against GIO the third-party insurer of his own motorcycle.
On 21 November 2022, GIO issued a liability notice to the claimant accepting the claim. GIO commenced paying Mr Vanoostwaard his statutory benefits.
On 20 January 2023 the insurer issued a further liability notice to the claimant denying liability to pay any ongoing statutory benefits on the basis Mr Vanoostwaard was “wholly at fault” and caused his accident.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 6 February 2023 the claimant referred the dispute to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me and I conducted a preliminary conference with the parties by audio-visual means on 9 March 2023.
LEGISLATIVE FRAMEWORK
Mr Vanoostwaard’s claim and his benefits are governed by the provisions of the MAI Act. That Act provides:
(a) a scheme of compulsory insurance for all vehicles registered in NSW, and
(b) a scheme of compensation and statutory benefits to persons injured in motor accidents in NSW.
The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act. The benefits payable include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act some benefits are payable to injured persons regardless of whether there is fault on the part of the owner or driver of any motor vehicle involved in the accident and even if the injured person’s fault caused the motor accident.
Pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has minor injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.[1]
[1] In Mr Vanoostwaard’s case there is no issue about “minor” injuries as he has sustained multiple fractures.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Vanoostwaard is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
INSURER’S DECISION MAKING
GIO issued its first liability notice to the claimant on 21 November 2022. The insurer accepted liability for the first 26 weeks after the accident and advised Mr Vanoostwaard that his benefits would be paid until 14 April 2023. While not expressly stated, this notice appears to accept that GIO is the relevant insurer within the meaning of s 3.2 of the MAI Act.
GIO issued its second liability notice on 20 January 2023. The insurer denied liability on the basis the claimant was “wholly at fault” and advised the claimant his benefits would cease on 14 April 2023. The reasons given for GIO’s “wholly at fault” decision were that Mr Vanoostwaard:
(a) was travelling too fast as he approached the cattle grid;
(b) “popped” the front wheel to avoid a pothole which was not safe to do on approach to a cattle grid;
(c) failed to keep a proper lookout for hazards, including the pothole and the cattle grid;
(d) failed to control his motorbike while riding across the cattle grid;
(e) failed to take reasonable care for his own safety;
(f) failed to ride according to prevailing conditions, and
(g) failed to observe and steer around the bend in the road.
GIO advised they had considered the police report and their investigator’s report in making this decision.
The insurer was asked by the claimant to conduct an internal review of this decision and did so on 6 February 2023, affirming the original decision.
Apart from the documentation, the internal review decision refers to a conversation with the claimant that includes the following information:
(a) the claimant was not the first rider in the group although he was not sure what position he was riding but that at least one rider had gone over the grid before him;
(b) the riders were riding 100 – 200m apart;
(c) there were potholes before the cattle grid but they did not play a role in the accident, and
(d) all the other riders would have hit the cattle grid at different spots and in different positions.
SUBMISSIONS
Claimant’s submissions
The claimant is self-represented and has made no formal submissions. In his application to the Commission, the claimant says:
“I was riding to the conditions of the road, was well aware it was a dirt road with cattle grids, wild life and on coming traffic. But this particular cattle grid where I had my accident deflected my front wheel causing me to dislodge on my bike which incidentally resulted in a slight acceleration and caused my bike to head towards the bank. I did manage to recover control of the bike but by the time that had happened I was unable to avoid hitting the bank and had ridden up and alone the bank and the bike jumped through the air. That's wear my actual memory of the accident ends. My next memory is being on my hands and knees trying to get up.”
Insurer’s submissions
After setting out the background to the accident, the claim and the dispute, the insurer notes at [18] the discrepancies between the claimant’s statement and the version of the accident given to the police.
The insurer accepts at [19] that, as the claimant rode his motorbike over a cattle grid, he lost control of his motorbike and crashed into a bank of dirt.
The insurer refers to my decisions in Yankovich v AAI Limited t/as GIO[2] where I said:
“In a single vehicle accident, when the owner and driver is the only person involved, looking for ‘fault’ in terms of the tort of negligence is not helpful because the injured owner or driver does not owe themselves an actionable duty of care which could found a suit in negligence…
In my view, in a single vehicle accident, where there is no other person involved, it is appropriate to approach the question of whether the accident was caused ‘wholly [by the] fault’ of the claimant by considering whether the accident was caused in whole or in part by something other than the claimant’s driving. If there is something else that caused the accident, then the claimant cannot be ‘wholly’ at fault.”
[2] [2022] NSWPIC 137.
The insurer submits at [27] that “there is nothing other than the claimant’s riding that caused the accident, whether in whole or in part”.
The insurer also says, “that there was nothing about the motorbike, the cattle grid or the road that actually caused the [accident] other than the claimant’s own riding”. The cattle grid was part of the “ordinary environment” where the claimant was riding and that other riders had gone over it without incident.
The insurer suggests at [30] the principle of res ipsa loquitor which, for the claimant’s benefit, is an entrenched legal principle in accident cases which translates roughly to “the thing speaks for itself”. The insurer says that because there was nothing wrong with the motorbike, the cattle grid or the road itself that caused the accident, negligence or fault can be inferred because the claimant was in control of the motorbike and an accident such as this could not occur without negligence or fault.
The insurer at [34] refers to that part of my decision in Yankovich where I said that “fault” could be interpreted to mean “responsibility for the accident” and that the responsibility for this accident lies with the claimant.
In the alternative the insurer says at [35] that the claimant is mostly at fault.
REVIEW OF THE EVIDENCE
The claimant’s claim form indicates that the accident occurred at 1.20pm and the claimant gave this version of events:
31.“It was a dirt road with cattle grids. My front tyre slipped on this particular cattle grid which changed my trajectory sending me in the direction of the bank. I was unable to avoid hitting it and it catapulted me into the air. I landed with a heavy impact.”
The police report was created by Senior Constable Chester of the Gloucester police. He noted that the weather was fine, the road was unsealed, the surface was dry and the speed limit was 100 kmph.
The police report also indicates (at page 3) that the claimant was the person responsible and that he was riding at 65 kmph at the time of the accident and had an unrestricted license with nearly 28 years of driving experience.
The police report includes this detailed summary of the crash:
“Vehicle … Motorcycle, was travelling along the Curricabark Road at a speed somewhere between 65-75km per hour. As the rider Shane VANOOSTWAARD approached a cattle grid, there were some pot holes prior to the cattle grid. The rider did a bit of a wheelie to get over the pot holes. When crossing the cattle grid, the grid threw the rider’s back wheel out a bit and he lost his angle. The rider stated that just after the cattle grid, he did not realise the road veered slightly to the left. The rider went straight off the road and into a small embankment. It appears the motorcycle and rider got airborne for a short period before landing back on the road. The rider [tried] to lock it up but the motorcycle went over and the rider/motor cycle bounced along the road, eventually coming to rest in the middle of the road.”
GIO retained the services of Procare Investigations to investigate the accident. Statements were obtained from the claimant and the attending police officer.
The scene was not visited by the investigator and an aerial shot of the scene from Google Maps was provided. While the topography is not clear from the photograph it appears the scene of the accident was rural land with some roads but no visible dwellings. The photographs taken by the police were included in the report along with a diagram of the accident scene included below.
The statement of Senior Constable Chester was taken by the investigator on
23 November 2022. He says:
(a) he has been a police officer for 34 years [Q7] and has attended hundreds of motor vehicle incidents [Q9];
(b) the police attended at some stage after about 2.30pm [Q17] responding to a signal from an emergency position indicating radio beacon (EPIRB) [Q14];
(c) the claimant had been riding with 10 others on an “adventure bike touring group” that had left Sydney and were on their way to Nundle. They had stopped for lunch in Gloucester and were heading toward the Barrington Tops [Q19];
(d) this was the first dirt section of the road for the day, they had come to a cattle grid, there were potholes in the road, the claimant “popped” the front wheel, went over the grid, did not see the left hand turn and went straight ahead into an embankment [Q28];
(e) there were riders in front and behind but no one actually witnessed the accident because they were staggered [Q28];
(f) the claimant gave a version of events to the Senior Constable and was breathalysed (negative) [Q30];
(g) the police officer assumed he “chucked a wheelie” to get up over the potholes and then back down as he got to the cattle grid [Q37];
(h) the claimant was flown by helicopter to the John Hunter Hospital [Q46];
(i) the claimant was issued with a traffic infringement notice for negligent driving [Q57];
(j) the road is a gravel road just wide enough for two cars “so you have to be careful when you are travelling along it”, the road is windy and there are “a lot of potholes” [Q61];
(k) in the lead up to the cattle grid the road is straight but once over the cattle grid the road veers to the left, there were potholes before and after the grid [62], [64] and [68], and
(l) it is about 30m from the cattle grid to where the claimant went off the road [Q69].
In the response to question 56, the police officer has read out the narrative of facts which includes the following information not already included above:
(a) the trip was a four day trip, this was the first day;
(b) there was no phone coverage, no traffic and limited households in the area which was why the EPIRB was used;
(c) the claimant said he was riding at 65 – 70 kmph;
(d) the claimant did a wheelie, lost his angle on the back wheel as he went over the gird and did not realise there was a left hand bend, and
(e) none of the other riders had issues or crashed.
The narrative concludes with this:
“Police believe that the rider was at fault for not riding to the conditions of the road being unknown to him the rider stated on approaching the cattle grid he did not realise the veered left as he could not see this on approach …”
The investigator’s report includes rainfall records for the Gloucester area. The accident occurred on 14 October and in the month of October leading up to the date of the accident there were only two rain free days with three days of more than 10 mm of rain recorded. On 22 September there had been 54.6 mm of rain in one day.
The claimant gave a statement to the insurer’s investigator on 25 January 2023. I have included the main points and supplemented them with the evidence that the claimant gave during the preliminary conference:
(a) he has ridden his bike regularly, about four to five times a week over the last 12 months [18];
(b) his bike was in good condition and is serviced regularly [19] – [21];
(c) he was wearing all his safety gear at the time [23];
(d) he was on a four-day ride – riding with his friend Peter, two of Peter’s friends and as told me at the preliminary conference other “like minded” people [25];
(e) it was not a formal tour, it was not organised by a tour group [26];
(f)
he was riding with a group of about 10 riders [27]. I asked
Mr Vanoostwaard where he was in the group at the time of the accident and was not sure but thought he was third or fourth. He confirmed that no one else came to grief at the grid;
(g) he had clear vision, and his mirrors were clean [29];
(h) it was a fine and sunny day [30] although he told me at the preliminary conference that he knew there had been a lot of rain over the last year;
(i) the road they were riding on was the first dirt bit of the trip and they had ridden for about 40 minutes before crash [31];
(j) he was very experienced at riding on this type of road and has ridden thousands of kms on similar roads and has been riding dirt bikes since he was 12 years of age [32];
(k) his tyres are good for dirt and sealed roads [33]. He explained to me at the preliminary conference that the back wheel is two times the size of the front wheel and can absorb more in terms of impact. He said if you hit something hard with the front tyre you can damage the tyre and the rim and the bike can be out of action for quite a while;
(l) he said he could not recall the condition of the road, he had already negotiated a number of potholes on the road [34];
(m) the speed limit of the road was 80 kmph and he was travelling at 60 kmph before the accident [35]. I asked him about his speed and how he knows he was doing 60 kmph. I put to him that the police record him as riding at 65 – 70 kmph. Mr Vanoostwaard said he was a bit out of it when the police spoke to him but that he had regularly checked his speed and over the last kilometre before the accident he has noticed he was riding at 60 kmph but he could have been riding at about 50 kmph. He said he could not have been riding at 80 kmph because the roads are twisty and there are pot holes everywhere;
(n) he said the road was straight before the grid and it was his “intention to continue riding straight” [36]. He took issue at the settlement conference with the insurer’s reliance on this and said this was taken out of context. What he meant was that as he was approaching the cattle grid he was riding straight and that was how he was intending to ride before and across the cattle grid but that he was aware of the bend coming up;
(o) he had negotiated a number of other cattle grids and was riding at 60 kmph [38]. Mr Vanoostwaard said during the preliminary conference that he had been over 50 cattle grids before this one;
(p) before the previous cattle grids and because of the state of the road he had lifted the front wheel off the ground to avoid damaging the front wheel. He said the rain can wash away the dirt at the front of the grid and if exposed and you hit the front of the grid with your front tyre you can damage it [39]. Mr Vanoostwaard explained to me that to lift the front wheel up a bit, you lean back in your seat. He said he was not doing a “wheelie” and lifting the front wheel far off the ground, just enough to get the front wheel up and over the front of the grid and onto the grid itself;
(q) at the cattle grid where this accident occurred, his front wheel was on the ground and dislodged slightly which caused the course of the bike to alter and as he attempted to correct the course of the motorcycle his hand twisted the throttle causing the bike to accelerate and he lost control [40]. Again, Mr Vanoostwaard explained that as he hit the front of the grid his body dislodged from his seat and as he was regaining his seat his hand moved and twisted the throttle. He said this is called “risky throttle”. He said this was not a deliberate move but occurred as he was correcting his seat and the bike;
(r) he tried to stop the bike and locked up the back wheel but was unable to avoid hitting the embankment [41], and
(s) he told the police what he thought had happed [53] “but I was corrected by Peter who had been following me and saw how the crash happened”. I had told the police I had lifted my wheel but Peter said that was not the case.
Mr Vanoostwaard was charged with negligent driving, and he told the investigator that he is contesting the charge. I told the parties at the preliminary conference that I am not bound by what action the police have taken or what the Local Court decides.
Mr Vanoostwaard may have had a charge laid against him under the Road Transport Act 2013 (or any other Act) but I am looking only at the question of whether the claimant is wholly or mostly at fault under the MAI Act. Mr Vanoostwaard should also be aware that the Local Court is not bound in the negligent driving proceedings against it, anything I find in relation to his entitlement to benefits under the motor accidents legislation.
I asked Mr Vanoostwaard what he said caused the accident and he said, “me hitting the front of the cattle grid which dislodged me from my bike”.
The claimant had said in his claim form that he slipped on the cattle grid.
Ms Woodward for the insurer asked the claimant to confirm whether he says the tyres of his motorbike slipped on the grid and he said no. He said his front wheel hit the front of the grid and that is what caused the accident.
CONSIDERATION OF THE ISSUES
How did this accident happen?
Mr Vanoostwaard has been forthcoming and co-operative in his evidence to the police, to the insurer’s investigator and to me during the course of this assessment. He did give a version to the police of lifting his front wheel up to help him get on and over the ramp. I accept that he gave that version while he was either in pain from his injuries (it took emergency personnel over an hour to get to him due to the remote location of the accident) or on medication to treat the pain.
I accept the claimant’s evidence that his front or back tyre did not slip on the grid itself.
I accept the claimant’s evidence that the presence of potholes did not cause or contribute to the accident.
The claimant’s evidence in his statement supplemented by his oral evidence at the preliminary conference satisfies me that the accident occurred in the following circumstances:
(a) the claimant was riding his motorcycle with a group of 10 on a four-day country road trip;
(b) the claimant is a very experienced rider, riding a well serviced motorbike and wearing appropriate safety gear;
(c) on the day of the accident the claimant had been riding on a dirt road which had a number of cattle grids;
(d) the claimant had successfully traversed these other cattle grids by leaning back in his seat and lifting the front wheel of his bike a few centimetres off the road surface to get the front wheel onto the cattle grid without hitting the front of the cattle grid if it was not flush with the road surface;
(e) the claimant was riding with at least one and possibly up to four riders ahead of him who traversed the cattle grid without difficulty;
(f) the claimant approached the cattle grid and, on this occasion, did not lift his front wheel up, and
(g) the front tyre of the claimant’s motorcycle hit the front of the cattle grid.
When Mr Vanoostwaard’s front tyre hit the front of the cattle grid, the claimant lost control of his bike because:
(a) his bike was jolted in a different (slightly different) direction or angle;
(b) the claimant shifted in his seat;
(c) when regaining his seat he accidentally adjusted the throttle to accelerate;
(d) as he accelerated he headed towards an embankment, and
(e) he tried to brake but could not stop before colliding with the embankment.
What caused this accident?
The “accident” is not limited to the moment when the claimant’s motor bike collided with the embankment and the claimant was thrown from the motor bike. The “accident” began earlier than that when the claimant’s motor bike hit the front of a cattle grid. It was that incident that led to the claimant losing control, and it was the loss of control that resulted in Mr Vanoostwaard colliding with the embankment.
The cattle grid was on the road and was a feature of the road that had to be negotiated as part of the claimant’s journey.
In my view, the cause of the accident was the way in which the claimant was riding his motorbike on the road and the way in which he approached the cattle grid.
What is fault?
The MAI Act provides that almost all people injured in motor accidents get some statutory benefits for the first 26 weeks after an accident. Section 3.1 provides that an injured person receives some benefits if no one was at fault or even if the injured person is at fault. However, ss 3.11(1) and 3.28(1) of the Act provide that an injured person is not entitled to benefits after the first 26 weeks if “the motor accident was caused wholly or mostly by the fault of the [injured] person”.
Fault is defined in the Act (at s 1.4) to mean the tort of “negligence or any other tort”. A tort is a civil (not criminal) wrong by one person which injures another and for which legislation or the courts impose liability resulting in the payment of damages. On the facts and circumstances of Mr Vanoostwaard’s accident and claim, the only possible applicable tort could be the tort of negligence.[3] But does the definition of “fault” with its connection to the tort of negligence apply to ss 3.11(1) and 3.28(1)? I do not think so for the reasons that follow.
[3] Other torts recognised in Australian law involving personal injury include misrepresentation, trespass and nuisance.
The judge-made (common) law says that there are three elements of the tort of negligence:
(a) a duty of care must be owed by one person to another (for example the driver of a motor vehicle owes a duty of care to other road users);
(b) the duty of care must be breached (for example a driver turns right directly in front of an oncoming vehicle), and
(c) there must be injury and loss caused by that breach (the driver of the oncoming vehicle sustained serious fractures resulting in permanent impairment, cannot do his job and retires from the workforce early).
In New South Wales the tort of negligence is dealt with by the Civil Liability Act 2002 (the CLA Act). The long title of the CL Act is, “an Act to make provision in relation to the recovery of damages for death or personal injury caused by the fault of a person”. The first observation is that statutory benefits are not damages to be assessed and recovered, but benefits which must be paid pursuant to an entitlement set out in the legislation. Therefore, an Act which regulates the recovery of damages cannot in my view apply to payments of statutory benefits unless specifically mentioned.[4]
[4] Section 3.39 of the MAI Act also applies the pure mental health provisions in Part 3 of the CL Act to motor accident claims involving psychological or psychiatric injury.
A second observation is that Mr Vanoostwaard has no cause of action against himself in accordance with the elements of the tort of negligence set out above. He does not owe himself a duty of care that can be breached and cannot commit an actionable wrong against himself. While he may sustain injury and loss as a result of his accident, he cannot sue himself for damages.[5] Damages are awarded by way of compensation because one person’s fault caused an injury to another person. Statutory benefits are paid regardless of whether there is any fault on the part of anyone and even if the injured person is at fault.
[5] See the case of Whitfied v Melenwycz [2016] NSWCA 235 per Sackville AJA at [54].
I am therefore of the view that the provisions of the CL Act do not apply to disputes about whether a claimant is “wholly at fault” in claims for statutory benefits under Part 3 of the MAI Act.[6]
[6] Section 3.38(1) applies to statutory benefits “the common law and enacted law as to contributory negligence that applies to an award of damages” which is clearly a reference to Division 8 of the CL Act. Therefore in a dispute about whether a claimant is “mostly at fault” these provisions would apply.
Some provisions of the CL Act do apply in respect of the recovery of damages under Part 4.[7] The definition of “fault” in cl 1.4 of the Act clearly applies when considering the recovery of damages by an injured person from the other person whose actionable wrong caused the accident and the injuries.
[7] Sections 3B(1)(d), (e) and (e1) of the CL Act specifically exclude the CL Act from applying in claims for damages made under the Motor Accidents Act 1988, the Motor Accidents Compensation Act 1999 and Part 4 of the Motor Accident Injuries Act 2017. Certain specific provisions are then brought back in and apply to proceedings for damages arising out of motor accidents in accordance with s 3B(2).
It is my view that in a claim for statutory benefits made in accordance with Part 3 of the MAI Act, where the law of torts and the principles of the tort of negligence do not apply, the word fault in ss 3.11(1) and 3.28(1) should be given its ordinary or usual meaning and that is “responsibility for an accident”.
Is the claimant wholly at fault?
It has been my consistent approach in cases like this (single vehicle crashes), that in order to determine whether the claimant is wholly at fault and caused the accident, an enquiry should be made as to whether anyone else or anything else was responsible for causing the accident. If there is something or someone else responsible, then the claimant cannot be wholly responsible and therefore cannot be wholly at fault.
There is no evidence that any other motor vehicle was involved in this accident other than the motorbike owned and ridden by the claimant.
There is no evidence that Mr Vanoostwaard’s motorcycle was faulty or had been poorly serviced by anyone.[8]
[8] In the case of Kennedy v AAI Limited t/as GIO [2022] NSWPIC 342 – where a motorbike rider was found not wholly at fault where his rear wheel fell off on a country road and where the claimant had limited warning but continued to ride his bike to investigate after first sign of a problem.
There is no evidence that the road and cattle grid were poorly designed, poorly installed or poorly maintained.[9]
[9] This is, unlike the case of MacMahon v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 427 – where a motorbike rider was found not wholly at fault where the evidence was the road had been poorly designed and poorly signed.
There is no evidence that there was anything on the road surface causing a hazard to motorcycle riders.[10]
[10] See for example Ferrell v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 605 where the evidence established the presence of loose gravel from repairs done to pot holes caused the claimant’s motorbike to lose grip on the road surface.
The claimant had successfully traversed many cattle grids in the 40 minutes he had been riding on the road. Some of his fellow travellers had also traversed the cattle grid ahead of Mr Vanoostwaard without issue.
There is no evidence to suggest anything other than the way in which
Mr Vanoostwaard was riding his motorbike caused his accident. Therefore, the responsibility for this accident lies with the claimant and the way in which he approached the cattle grid.
In my view Mr Vanoostwaard could have taken some or all of the following precautions when approaching this particular cattle grid such as:
(a) slowing down so he could get a better lookout of the grid to see whether it was flush with the road surface;
(b) keeping a better lookout and observing that the grid was not flush with the road surface;
(c) “popping” or lifting his front wheel up as he had done on approach to the previous grids in case the grid was not flush with the road surface;
(d) generally slowing down sufficiently so he could safely traverse the grid, and
(e) riding at a slower speed so that he could better control his motor bike in the event there was difficulty traversing the grid.
CONCLUSION
Mr Vanoostwaard was, in my view wholly responsible for causing his accident. He was therefore “wholly at fault” within the meaning of ss 3.11(1) and 3.28(1) of the MAI Act.
Because Mr Vanoostwaard was not represented by a legal practitioner there are no legal costs to award.
3
5
0