|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Wholly or mostly at fault – single vehicle accident - driver at fault – roll over|
|Legislation Cited||Motor 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
|Parties||ABN - Claimant|
AAMI Ltd - Insurer
|Disclaimer||This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.|
Miscellaneous Claims Assessment 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
|Date of Accident||23 March 2018|
|Insurer Claim Number||Y05416900403|
|DRS Decision Maker||Claims Assessor Terence Stern|
|Date of Decision||29 November 2018|
|Conference date and time||Not applicable|
|Conference venue and location||Not applicable - decided on the papers|
|Attendances for Claimant||ABN (self represented)|
|Attendances for Insurer||Timonthy 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.
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
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.
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.
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.
10. I have considered the documents provided in the application and the reply and any further information provided by the parties.
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.
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.
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.
Dispute Resolution Services
29 November 2018