ACF v GIO Insurance [2018] NSWDRS CA 058

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
Jurisdiction	Miscellaneous Claims Assessment
Catchwords	Wholly or mostly at fault - contributory negligence - fault of the injured person - statutory benefits - contribution by claimant 50% - agreement between parties to dismiss application
Legislation cited	Motor Accidents Injury Act (NSW) ss 6.13, 7.36(4) & (5), part 6.2, schedule 2(3) Motor Accident Injuries Regulation 2017 Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited	N/A
Text cited	N/A
Parties	ACF - Claimant GIO Insurance - 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 section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter
Claimant	ACF
Insurer	GIO Insurance
Date of Accident	1 May 2018
DRS Reference	Rew O’Loughlin
Date of Internal Review	5 October 2018
DRS Claims Assessor	Helen K. Wall
Date of Decision	12 December 2018
Conference venue and location	Determined on the papers

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

The Insurer concedes as follows:

For the purposes of section 3.28(1) of the Motor Accidents Injury Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person.
I dismiss the dispute.
Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus of GST agreed to by the parties.

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

Helen K Wall
DRS Claims Assessor
Dispute Resolution Services

Reasons for Decision

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) of the Motor Accident Injuries Act 2017, about liability and payment of statutory benefits following the first 26 weeks after the accident.

1. I refer to my report of the first telephone conference setting out the issues between the parties.

2. In summary, the Insurer had denied liability for the Claimant’s claim for statutory benefits 26 weeks post-accident as the Insurer considered that the Claimant was mostly at fault for the subject accident.

3. A telephone conference was held on 4 December 2018 and I made various directions.

4. I received correspondence by email on 11 December 2018 from Mr Virgona representing GIO.

5. In this correspondence, the Insurer noted that it had altered its position regarding liability. The Insurer noted:

‘We assess your contributory negligence at 50%. As such, we have determined that you were not “wholly or mostly at fault” for the accident.’

6. I received correspondence from the Claimant’s solicitor Ms Nair with attached letter dated 11 December 2018 noting that there is no longer a dispute to be determined as the Insurer has now determined that the Claimant was not wholly or mostly at fault.

7. Mr Dougall, solicitor from Carroll & O’Dea noted in the above letter:

‘Subject to costs, the application should be dismissed with a cost order of $1,633.00 plus GST.’

8. On 12 December 2018, Mr Virgona on behalf of GIO emailed me to state:

‘The Insurer does not object to the dispute being dismissed with costs.’

9. I congratulated the parties for their resolution of this dispute.

10. I will issue a certificate as agreed between the parties, and I vacate the telephone conference listed for 30 January 2019 at 9:00am.

Conclusion

My determination of the Miscellaneous Claim is as follows:

1. For the purposes of section 3.28(1) of the Motor Accidents Injury Act 2017 (NSW), the motor accident was not caused wholly or mostly by the fault of the injured person.

2. I dismiss the dispute.

3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,633.00 plus of GST agreed to by the parties.