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AAI v GIO General Ltd [2018] NSWDRS CA 009

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsFault of another person – Fault of injured person – statutory benefits – low speed collision – parked car – medical episode - caused by an act or omission of driver
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.1, 3.11, 3.28, 3.36, 5.2, 5.4, Part 5, Schedule 2 cl 3
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 7.441
Cases cited N/A
Text cited N/A
Parties AAI – Claimant
GIO General Ltd – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantAAI
InsurerGIO General Limited
Date of Accident31 January 2018
DRS Reference10037693
Insurer Claim NumberY05305100701-01
Date of Internal Review13 June 2018
DRS Decision MakerColin Stoten
Date of Decision3 October 2018
Determined on the Papers

The findings of the assessment of this dispute are as follows:

  1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person
  2. For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person
  3. Effective Date: This determination takes effect on 3 October 2018
  4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $ nil.

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

Colin Stoten
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Services

Reasons for decision

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) and (e) of the Motor Accident Injuries Act 2017, about whether the Claimant was at fault and/or mostly at fault for the accident.

1.   The Claimant was injured in a motor vehicle accident on 31 January 2018 and has made a claim for statutory benefits against the Insurer.  The accident occurred in circumstances whereby the Insured vehicle driven by the Claimant collided at low speed with a parked car.

2.   The Claimant made an application for statutory benefits upon the Insurer by way of a Claim Form completed on 15 February 2018.

3.   The Claimant apparently suffered a blackout or seizure such that he had no control over his vehicle. There is evidence from several sources as to the Claimant’s history in this regard.

The RPA Hospital notes record:

“Low speed mva secondary to loss of consciousness whilst driving..”

And Dr Tran records in his notes:

“Seizure like episode whilst driving”

Investigations at the RPAH failed to find any cause for the blackout or seizure.

4.   The Insurer by letter dated 14 May 2018 denied liability for the claim on the basis that the Act provides that the driver of the at fault vehicle is not eligible for benefits beyond the first 26 weeks.

5.   The Claimant sought a review of that denial and lodged an application for internal review and sent an email on 1 June 2018 saying he was not at fault.  Upon review of the evidence, the Insurer’s internal reviewer, Ms Mar-Lize Crawford on 13 June 2018 determined to affirm the Insurer’s decision, which found the Claimant was the driver of the at fault vehicle.

6.   The Claimant was unhappy with the internal decision and made an application to the Dispute Resolution Service by application dated 25 June 2018 to review the internal review relating to the finding of fault.

7.   It is the Claimant’s contention that there he was not at fault and that benefits should continue and in particular the provision of funding to meet the cost of further neurological testing.

8.   The Dispute Resolution Service have referred the matter to me for assessment as a miscellaneous claims assessment in accordance with clause 7.67.6 of the Guidelines. It appears to me that the dispute involves a consideration of schedule 2, clauses 3(d) and (e) of the Motor Accident Injuries Act 2017( the act).

9.   I initially held a teleconference on 5 September 2018 at 3.30pm. DRS had sent to the Claimant prior written notice of the teleconference however for reasons unknown to me he could not be contacted on the telephone number provided by him in the claim form and application. I determined to stand the matter over whilst further notice was provided to the Claimant of a further teleconference on 26 September 2018 at 3.30pm.

10.   I held a teleconference on 26 September 2018 at 3.30 pm. The Claimant who is unrepresented had been given notice of the teleconference by the DRS internal offices however his availability could not be confirmed as he failed to respond to email and telephone messages given to him. I attempted to call him at 3.30pm and spoke to a male person who said the Claimant was unavailable but that he will be available the following morning. I accordingly arranged to call the Claimant at 9.00am the following day.

11.   I rang at 9.00am and again at 9.06am but received a recorded message on each occasion that the phone was switched off or unavailable.

12.   I accordingly indicated to Mr Virgona, the Insurer’s representative, that I would proceed to determine the application on the basis of the material provided including the additional material supplied by the insurer which was a police report and advice that AAI’s partner was the owner of the subject vehicle.

Documents considered

1.   I have considered the documents provided in the application and the reply and the police report and letter from the Insurer advising the owner of the vehicle driven by the Claimant was AAI’s partner.

Submissions

2.   I have received no detailed submissions from the Claimant other than to say he disputes the Insurer’s decision because he was not at fault.

3.   I have received detailed submissions from the Insurer which were attached to the Insurer’s reply. In essence the Insurer says it is not liable to pay statutory benefits in a no fault accident because section 5.4(1) says just that, and section 5.4(2) says that section 5.4(1) applies even if the act of the driver was involuntary.

Legislation

4.   In making my decision/conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

5.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

6.   The material relied upon establishes that:

i.   The accident occurred when the vehicle driven by the Claimant suddenly drove onto the incorrect side of the road and hit a stationary car on the opposite side of the roadway.

ii.   That the vehicle driven by the Claimant was owned by AAI’s partner.

iii.   That the accident occurred in circumstances whereby the Claimant blacked out and has no recollection of the event.

7.   The above facts lead to an inevitable conclusion that the Claimant was either an at fault driver or that his act or omission in the driving of the vehicle resulted in the accident.

8.   The consistent history given by the Claimant is that he blacked out and has no memory of the accident such that the accident could be said to have occurred due to an involuntary act on the part of the Claimant.

9.   There is no evidence that the accident involved any fault or act or omission of any other driver. So that there is no evidence, for example of any defect in the vehicle driven by the Claimant but owned by AAI’s partner.

10.   Accordingly the provisions of Part 5 of the Act relating to No Fault accidents is engaged.

11.   As the Insurer in its submissions refer, section 5.4(1) provides that no statutory benefits are payable to an injured driver if the accident was caused by an act or omission of that driver. And section 5.4(2) provides that such act or omission can occur even if it was involuntary.

12.   However section 5.2(1) also provides that an injury resulting from a no fault accident is deemed to have been caused by the driver of the vehicle involved.

13.   There is accordingly some conflict between sections 5.4 and 5.2 as to whether or not an injured driver in a single vehicle collision is entitled to recover the first 6 months of statutory benefits payable to an at fault driver.

14.   It is not essential that I decide this issue as the Claimant has been paid statutory benefits for the first 6 months as AAI has already received those benefits but my view is that the provisions of section 5.4 are to be read in conjunction with section 5.2 such that a deemed at fault driver is entitled to receive statutory benefits for the first 6 months but that thereafter no statutory benefits or damages are payable. This interpretation is in my view consistent with the overall scheme of the act, and section 3.1(2) that statutory benefits are payable whether or not the accident was caused by the fault of the driver of a motor vehicle.

15.   I therefore conclude that the Claimant by operation of section 5.2 of the act is deemed to be the at fault driver in the subject accident and in such circumstances is entitled to receive statutory benefits for the first 26 weeks but no more.

Costs and disbursements

16.   The Claimant is not represented by a lawyer and has not taken part in the dispute process. Accordingly I find no costs are payable.

Conclusion

My determination of the Miscellaneous Claim is as follows

17.   For the purposes of section 3.11 the motor accident was not caused by the fault of another person

18.   For the purposes of section 3.28 or 3.36 the motor accident was caused mostly by the fault of the injured person

19.   Effective Date: 3 October 2018.

Colin Stoten
Decision Maker, Delegate of the Principal Claims Assessor
Dispute Resolution Service