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ABN v AAMI Ltd [2018] NSWDRS CA 040

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – single vehicle accident - driver at fault – roll over
Legislation CitedMotor Accidents Injury Act (NSW) ss 3.26, 3.28, 7.36(4), Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 2017 cl 7.445
Cases CitedN/A
Text CitedN/A
Parties ABN - Claimant
AAMI Ltd - Insurer
DisclaimerThis 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

ClaimantABN
InsurerAAMI Limited
Date of Accident23 March 2018
DRS Reference10046980
Insurer Claim NumberY05416900403
DRS Decision MakerClaims Assessor Terence Stern
Date of Decision29 November 2018
Conference date and timeNot applicable
Conference venue and locationNot applicable - decided on the papers
Attendances for ClaimantABN (self represented)
Attendances for InsurerTimonthy Virgonia, Claims Officer of AAMI Limited

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

1. For the purposes of s 3.28 (1) (a) or 3.26 of the Act, the motor accident was caused wholly or mostly by the fault of the injured person.

2. The Claimant was not legally represented and in the circumstances, I do not assess any amount for costs payable by the Insurer.

Terence Stern
Claims Assessor
Dispute Resolution Services
Dated: 29 November 2018

Reasons for decision

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

Introduction

1.   ABN (‘the Claimant’) claims to have sustained injuries to various areas of her body in a motor vehicle accident on 23 March 2018.

2.   The Claimant has made a claim no. Y05416900403 against AAMI Limited A.B.N. 48005297807 trading as AAMI (‘the Insurer’) was involved in a motor vehicle accident on 6 July 2018.

3.   By notice of 25 June 2018 the Insurer denied liability for the payment of statutory benefits following the first 26 weeks after the accident on the basis that the Claimant was the driver of the at fault vehicle and as such is not eligible for statutory benefits after 26 weeks.

4.  At internal review on 23 July 2018 the decision maker, Mar-Lize Crawford, set out the matters in dispute, the relevant legislation, what she perceived to the facts of the matter and concluded by confirming the decision of the Claims Officer of denial of liability after 26 weeks as the Claimant was considered to be the driver at fault.

Background

5.  On 23 March 2018 the Claimant was injured in a motor vehicle accident. She was the driver of the vehicle and no other vehicles were involved.

6.  On 25 October 2018 at 2.15pm I held a telephone conference in which the Claimant and the Insurer’s representative, Tim Virgona, participated.

7.  I discussed the issues and gave the Claimant an opportunity to seek legal advice and to make submissions.

8.  By email letter of 6 November 2018 at 12.36pm the Claimant advised that she did not wish to submit any further documents for consideration or to make any further submission.

The issues

9.  Whether the Claimant was at fault in respect of the accident and whether as such she is entitled to receipt of statutory benefits beyond the first 26 weeks.

Documents considered

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

Submissions

11. Pursuant to the directions made, the Claimant provided a further short email of 6 November 2018 at 12.36 pm but no submissions.

12. No further submissions were made by the Insurer.

Legislation

13. 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 Guidelines 2017

The facts of the accident

14.  The Insurer sets out the facts in its statements of reasons for internal review.  They are set out under the head ‘The Facts in the Matter’ at 1 to 9 inclusive.  There is no dispute as to the essential accuracy of the summary.

Consideration

15. No other vehicle, person or object was involved in this accident.  The Claimant lost control of her Prado in slippery conditions as a result of which the front nudge bar caught an embankment and the vehicle rolled as a result of which the Claimant sustained injury.

16. The inevitable conclusion is that the Claimant misjudged the conditions.  Probably she should have been driving the vehicle a little slower in the circumstances and when it started sliding, she probably should have managed the slide differently.  She is not to be criticised for failing to use the relevant skill to deal with the slide.  The conditions were slippery, and many drivers would have had the accident that the Claimant had.

17. The fact is, however, that in terms of any entitlement for a remedy under the CTP Scheme she was at fault and nobody else even if the measure of her fault in terms of relative fault was very small.

18. It is inherent in the CTP Scheme under the Motor Accidents Injuries Act 2017 that there is no room for discretion in these circumstances.

19. I confirm the correctness of the result of the internal review and the decision made.

Terence Stern
Claims Assessor
Dispute Resolution Services
29 November 2018