Xue v AAI Limited t/as AAMI
[2022] NSWPIC 321
•23 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Xue v AAI Limited t/as AAMI [2022] NSWPIC 321 |
| CLAIMANT: | Xiaobei Xue |
| INSURER: | AAI Limited t/as AAMI |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 23 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claimant involved in a head on collision whilst travelling on the incorrect side of the roadway; at the last minute she swerved in an attempt to avoid impact; lodged a claim for statutory benefits; Claimant charged with serious driving offences related to the accident; insurer denied liability; Claimant persisted with her claim for statutory benefits claiming 30% contributory negligence; Insurer sought to have statutory benefits dismissed; Held – Claimant’s persistence to pursue her application for statutory benefits misconceived; miscellaneous claim dismissed pursuant to section 54 of the Personal Injury Commission Act 2020 and rule 77(b)(v) of the Personal Injury Commission Rules 2021; denial of liability is not binding in connection with a claim for damages in relation to the same motor accident; division 3.6, section 3.44 of the Motor Accident InjuriesAct 2017. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Section 54 of the Personal Injury Commission Act 2020 and Rule 77 of the Personal Injury Rules 2021:- 1. Pursuant to section 54 of the PIC Act and Rule 77(b)(v) of the Rules, the proceedings are dismissed. 2. The effective date of the determination: 22 June 2022 |
Reasons for Decision
This determination relates to: Section 54 of the Personal Injury Commission Act and Rules 77 of the Personal Injury Commission Rules.
This determination relates to an application for dismissal pursuant to Personal Injury Commission Act 2020 and the Personal Injury Commission Rules 2021.
The Claimant, Ms Xiaobei Xue was involved in a motor vehicle accident on 2 April 2021 (“the accident”). The Claimant was charged with two serious driving offences subsequent to the accident.
On 7 March 2022, the Claimant released the full New South Wales Police file. Following this release, the Insurer, AAMI updated a Liability Notice dated 18 March 2022 denying liability in accordance with 3.37 of the Act on grounds the Claimant was charged with a serious driving offence.
On 29 April 2022 the Claimant conceded she was charged with a serious driving offence related to the accident but maintain she was not wholly at fault and submitted her contributory negligence should be a maximum of 30%.
Background
On the day of the accident, the Claimant was travelling in a northerly direction along Nelson Bay Road, Anna Bay in the State of New South Wales. I have her statement of interview taken by investigator Mr Peter Briggenshaw on behalf of the Insurer.
Ms Xue was born in China and migrated to Australia in 2004. She is 34 years old. She holds a Class C licence. She has been driving in Australia since 2009.
The vehicle in which she was driving at the time of the accident, was 2018 white Toyota Hilux Dual Cab utility with a hard lid on the back. She says she was familiar with the operation of the vehicle which was registered in her husband’s name.
Travelling in the vehicle with her was her husband and two small children. It was Easter Friday. The family were travelling from their home in Dundas Sydney to Anna Bay. Her husband drove to Newcastle where they stopped to buy food and swap drivers.
Ms Xue recalls driving through a round about at Gan Gan Road where she missed a turn. She pulled over to the left and noted two lanes. She says she thought these two lanes both northbound. The vehicle GPS told her to perform a u turn.
She says she pulled out into the first lane as she wanted to get into the right lane to which she believed was a northbound lane when her husband alerted her to a truck travelling towards her vehicle. She says “I then tried to turn my wheel back to the left side. While I don’t remember seeing a truck we then impacted and at the time of the impact I was almost completely back into the left lane”. She says the accident occurred because she was confused with the roadway.
The accident was investigated by Hunter Crash Investigation Unit. The police report reveals at the same time Ms Xue was travelling north in the southbound lane, an Iveco Garbage Truck was travelling in the same southbound lane. The driver, Mr Matthew Lewis, told the police the Toyota
Hilux was half in the south and half in the northbound lane but was moving further into the southbound lane. He felt he had no alternative but to avoid the impending collision, the driver applied the brakes and moved into the northbound lane at the same time Ms Xue swerved her vehicle violently back into the northbound lane and ultimately the front of the garbage truck crashed into Toyota’s driver’s door. The truck had been fitted with a dashcam which was produced to the Commission. I have viewed that vision and agree with Hunter Crash Investigation Unit’s conclusion “It would appear that the evasive action Matthew Lewis took is the direct result of Xiaobel Xue crossing to the southbound lane”.
On 10 September 2021 a Court Attendance Notice was issued which revealed the Claimant was charged with the following offences:-
a.Dangerous driving OCC Gbh drive manner dangerous T1-s52a(3)(c) of the Crimes Act 1900
b.Caused bodily harm by misconduct, in charge m/v T1-s53 of the Crimes Act 1900.
Legislation
In making my decision I have considered the following legislation and rules:
•Motor Accident Injuries Act 2017 (NSW) ("the Act")
•Personal Injury Commission Regulation 2020("the PIC Act"),
•Personal Injury Commission Rules 2021("the Rules")
LEGISLATIVE FRAMEWORK
Liability for benefits beyond 26 weeks
The MAI Act provides a scheme of compulsory insurance for all NSW registered motor vehicles. It also provides a scheme of benefits and lump sum compensation for those killed or injured on NSW roads.
Part 3 of the MAI Act establishes a scheme of statutory income support and treatment and care benefits for almost all persons killed or injured in a motor accident on NSW roads on or after 1 December 2017.
Statutory treatment and care benefits continue for life however statutory income support benefits only continue for two years after the accident unless a claim for damages is made in which case benefits are paid for up to five years after the accident., (section 3.12(2) of the Act).
Statutory benefits are paid for the first 26 weeks if no one is at fault or even if the injured person is at fault (section 3.1 of the Act). However, after the first 26 weeks, the MAI Act says that an injured person is not entitled to benefits if they only have minor injuries or if the motor accident was caused wholly or mostly by the fault of the person. The phrase “mostly at fault” requires a finding of contributory negligence on the part of the injured person of greater than 61% (section3.11(2) and section 3.28(2) of the Act).
Statutory Benefits Determination Regarding to Fault etc Not Binding in relation to Common Law Damages
Division 3.6, section 3.44 of the Act provides that this section applies to a determination made by an Insurer or the Commission in connection with a claim for statutory benefits as to any fault of the driver, contributory negligence or any other prescribed regulation. However, any such determination is not binding in connection with a claim for damages in relation to the same motor vehicle accident.
Division 3.5, section 3.37 – no statutory benefits payable to an injured person who commits a serious driving offence.
Dismissal of Proceedings
Section 54 of the PIC Act provides the Commission may at any stage dismiss proceedings before it if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
JURSIDICTION
Ms Xue referred her dispute to the Commission for determination. Schedule 2 Clause 3 of the Act provides a list of miscellaneous claims assessment matter. Sub-clause (d), (e) and (n) provide the Commission with power to determine the disputes about whether the accident was caused wholly by the fault of Ms Xue or mostly at fault of Ms Xue.
ISSUE TO BE DETERMINED
These proceedings involve the Claimant’s application for Personal Injury Benefits with the Insurer on 7 April 2021. On 16 July 2021 the Insurer denied liability for statutory benefits after 26 weeks on the basis the Claimant was wholly at fault for the accident.
On 10 September 2021 the Claimant was issued with a Court Attendance Notice charged with two serious driving offences. On 29 April 2022 the Claimant conceded she was charged with the above offences and agreed she was not entitled to statutory benefits. However, in submissions dated 18 February 2022, the Claimant maintained she was not wholly at fault and submitted contributory negligence should be assessed at 30%. The Claimant has not addressed the Insurer’s application her claim be dismissed.
The Claimant has not lodged a claim for Common Law damages under Division 3.6, section 3.44.
CLAIMANT’S SUBMISSIONS
The Claimant’s submissions are dated 18 February 2022 and address the issue with respect to whether the accident was caused wholly or mostly at the fault of the Claimant pursuant to Sections 3.11 and 3.28 of the Act and the percentage of contributory negligence.
After receiving the Insurer’s final application and submissions, seeking a remedy the claim be dismissed, the Claimant was afforded a further opportunity to address this application. It is apparent the Claimant is relying on the issue of fault and contributory negligence rather than the
Insurer’s application her claim be dismissed as she has not considered that no statutory benefits
are payable to an injured person who commits a serious driving offence.
INSURER’S GROUNDS
The Insurer submits the issue of fault is immaterial as her application for Personal Injury Benefits has been denied as liability is denied. As such, the Insurer seeks the present Miscellaneous Claims Assessment is frivolous and lacking in substance and ought to be dismissed.
Further, whilst it is open to the Claimant to lodge a claim for Common Law Damages, the Insurer notes the denial of statutory benefits is not binding in connection with a claim for damages (Section 3.44 of the Act). Any such claim is required to be made against the Insurer of the garbage truck.
DOCUMENTS CONSIDERED
All documents lodged on the Portal were considered in relation to this decision
CONCLUSION
The Claimant’s persistence to pursue her application for statutory benefits is ill conceived. Liability for that claim has been wholly denied. I accept the Insurer’s submissions this Miscellaneous Claim be dismissed on grounds the proceedings are misconceived and lacking in substance.
Accordingly, the Claimant’s miscellaneous claim is dismissed.
COSTS
No application has been made for costs.
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