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AFT v AAMI Limited [2019] NSWDRS CA 146

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsCompulsory third-party insurance – contributory negligence – payments of weekly statutory benefits – pure metal harm – consequential mental harm – wholly at fault – fatal injuries – breach of duty of care – compensation to relatives claim – intoxication – pedestrian – no fault
Legislation cited

Motor Accidents Injury Act (NSW) ss 1.3(1), 3.1(1), 3.28, 3.36, 3.37, 7.36(4), 7.36(5), Schedule 2(3)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Civil Liability Act 2002 s 30

Cases cited

N/A

Text citedN/A
Parties AFT - Claimant
AAMI Limited  - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for decision

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

Relevant Legislation

Motor Accident Injuries Act 2017

  • This Act establishes a new scheme of compulsory third-party insurance and the provision of benefits and support relating to the death of, or injury to, persons as a consequence of motor accidents (refer Objects of Act [section 1.3 (1)].
  • Under the new statutory benefits scheme, if it is found that there is contributory negligence at 62% or higher, the payments of weekly statutory benefits and treatment expenses are cut off at 26 weeks.
  • Section 3.1(1) of the Act provides that if death or injury results from a motor accident, statutory benefits are payable as provided for in Part 3 of the Act. Section 3.1(2) legislates that statutory benefits are payable irrespective of fault i.e. no matter who was at fault for the motor accident.
  • Entitlement to statutory benefits up to 26 weeks requires no more than an injury from a motor accident. Fault on the part of the insured driver (JP) is not required to be proved for statutory benefits to flow in the first 26 weeks after the motor accident.
3.11   Cessation of weekly payments to injured persons most at fault or with minor injuries after  26 weeks:  Statutory  benefits cease to be payable for lost wages under section 3.11 and for treatment and care under section 3.28. The sections bring statutory benefits to an end at 26 weeks if:
a)   The motor accident was caused wholly or mostly by the fault of the person; or

b)   The person's only injuries resulting from the motor accident were minor injuries.

  • Fault means negligence or any other tort (section 1.4 Definitions).
  • Negligence means failure to exercise reasonable care and skill.

Civil Liability Act 2002

  • The Civil Liability Act 2002 deals with mental harm in Part 3 of the Act. Pure mental harm is defined as "mental harm other than consequential mental harm". Consequential mental harm is defined as "mental harm that is a consequence of a personal injury of any other kind".
  • The Claimant is alleging "pure mental harm" arising from shock as the mother of AFT’s daughter.
  • Section 30 deals with the limitation on recovery for pure mental harm arising from shock:
(1)  This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.

(2)   The plaintiff is not entitled to recover damages for pure mental harm unless:

a)   The plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

b)   The plaintiff is a close member of the family of the victim.

(3)   Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4)  ; No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5)   "close member of the family" of a victim means:

a)   A parent of the victim or other person with parental responsibility for the victim, or

b)

c) .............

d)

Background

1.  I held a teleconference (2nd with the Claimant and her support person on 28 August 2019. I confirmed with the Claimant that I agreed with the Internal Review decision of the Insurer AAMI dated 9 January 2019 that there was no fault on the part of the insured driver, JP, for the motor accident on 10 March 2018.

2.  This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) (e) of the Motor Accident Injuries Act 2017 (the Act) about the Insurer's decision to cease the Claimant's entitlement to further statutory benefits after the first 26 weeks by determining that AFT’s daughter was wholly or mostly at fault for the motor accident.

3.  The Claimant is the mother of AFT’s daughter who suffered fatal injuries in a motor accident at about 11.15pm on 9 March 2018 at Wentworth NSW. AFT’s daughter was a pedestrian.

4.  AFT’s daughter was the mother of three (3) young boys aged 11, 9 and 7. The circumstances of the motor accident are particularly horrific and the aftermath absolutely devastating for AFT’s daughter and her family.

5.  On 9 March 2018 at about 11.15pm the 2017 Toyota Land Cruiser XXXYYY which was an interstate registered vehicle was being driven by the insured driver in a northerly direction along Pooncarie Road, Wentworth (NSW). The weather was fine. The road was dry. The area was in darkness with no artificial lighting.

6.  The motor accident on 9 March 2018 occurred on a NSW road. The allegation is that the interstate registered vehicle 2017 Toyota Land Cruiser XXXYYY was at fault. Such a claim requires allocation through the Nominal Defendant Scheme. The claim was allocated to AAMI for management.

7.  The insured driver says he first sighted an object which he thought was a dead kangaroo in the centre of the lane in which he was travelling, when he was about 75 metres away. He says that when he reached the object he observed that the object was a person lying on her stomach in a position similar to reading a book. He ran over AFT’s daughter, killing her instantly. The Coroner's report lists the direct cause of death as "multiple injuries" including massive head trauma.

8.  AFT’s daughter was found by the Coroner to have a level of alcohol intoxication that significantly impaired her judgement.

9.  The police reported that blood and urine samples taken from the insured driver underwent analysis at Wentworth Hospital. The samples returned negative readings for alcohol and/or drugs.

10.   The police list the death of AFT’s daughter as accidental. Detective Senior Constable Ben Oelsnik states that he consider the insured driver, was not negligent in the death of AFT’s daughter.

11.   AFT is now self-represented. She was previously represented by Doyle Kingston & Swift Solicitors of Broken Hill who lodged her application for an internal review of the initial liability decision of AAMI dated 4 October 2018.

12.  An internal review was conducted by AAMI and was completed on 9 January 2019. AAMI reviewed the internal review documents. AAMI affirmed its initial findings that the Claimant is not entitled to statutory benefits after the first 26 weeks from the date of the motor accident as it considers AFT’s daughter to be wholly or mostly at fault for the motor accident, section 3.11 of the Act) and it considers that its insured driver was not at fault for the motor accident.

13.  The Claimant then lodged an application to DRS on 17 June 2019 for the determination of a Miscellaneous Claim which has been allocated to me for determination. She is not legally represented and there is no claim for legal costs.

14.   There is a dispute between AFT and AAMI that "AFT’s daughter was wholly responsible for her death". AAMI considered that AFT’s daughter was wholly at fault for the motor accident. AAMI considers that its insured driver was not at fault for the motor accident.

15.   This determination relates to a Miscellaneous Claim, which is a reviewable  decision under Schedule 2(3(e)) of the Motor Accident Injuries Act 2017 "whether for the purpose of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) or 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was caused mostly by the fault of the injured person".

16.  There is no dispute that the insured driver owed AFT’s daughter a duty of care. What is in dispute is whether the insured driver breached that duty of care i.e. that the insured driver was at fault and caused the motor accident.

17.   There is no dispute that AFT’s daughter suffered fatal injuries in the motor accident. What is in dispute is whether the fatal injuries were as a result of the insured driver's negligence/breach of duty of care which he owed to AFT’s daughter.

18.   AFT's daughter’s three (3) children made an Application to Compensate Relatives on 19 April 2018. This is a separate and distinct claim to the claim I am determining.

19.  The Compensation to Relatives claim was allocated to AAMI to manage as was the claim of AFT.

20.  AAMI issued a Liability Notice - Claim for Damages dated 1 August 2018 referable to the Compensation to Relatives claim. AAMI relied on the investigative report of Motor Accident Claims Service dated 27 July 2018 when making its decision.

21.  AAMI determined that it denied liability for the Compensation to Relatives claim. It did not deny that the insured person owed AFT’s daughter a duty of care. However, it did deny that the insured driver was at fault and caused the motor accident "because AFT’s daughter was lying in the middle of a poorly lit road and there was nothing more that our insured driver could have done to avoid the accident".

22. AAMI informed the Claimant in its Liability Notice dated 1 August 2018 referable to the Compensation to Relatives claim that "because we have denied liability we are not required to make any payments in relation to the claim. However, we are willing to consider the funding of reasonable and necessary care and assistance on a without prejudice basis".

23.   During the course of the teleconference on 28 August 2019, LB of AAMI in response to an enquiry by me, indicated that he will make representations to the claims handling team to fund on a without prejudice basis any reasonable and necessary care and assistance for the three (3) children of AFT’s daughter. I thank LB for his efforts.

24.   AFT has given up work to become the full time carer of her daughter's three (3) young children. LB emphasized that he will try his very best but it will be up to the claims handling team whether AAMI is prepared to make on a without prejudice basis payments for the reasonable and necessary care and assistance for AFT’s daughter's three (3) young children.

25.  As far as I am aware, the three (3) children did not seek a review of the Compensation to Relatives decision within 28 days of 1 August 2018.

26.  An internal review was conducted on 9 January 2019 and it is against that decision that this application is brought

The issues

27.   Was the death of AFT’s daughter caused by the fault/negligence of the insured driver?

28.   Was AFT’s daughter wholly at fault for the motor accident?

Documents considered

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

Claimant submissions

30.   AFT submits in her DRS Application 10107129 dated 17 June 2019 that "I would like this decision reviewed to allow consideration of appropriate compensation to be paid in relation to AFT's daughter’s death. We are caring for AFT's daughter’s children and subsequently I have been required to relinquish my employment; due to both needing to care for the children and the effects of the trauma of losing a child has brought upon me. We continue to grieve the death of our daughter and will do so for the rest of our lives. We are not seeking compensation for ourselves and would never begrudge providing for our grandchildren. It is their future and rightful compensation for their mother that we are asking for this review to happen."

31.   The Claimant has not provided any additional material or submissions.

Insurer's submissions

32.   The Insurer lodged its Reply on 12 July 2019. The Insurer relies on submissions dated 12 July 2019 and attachments, further submissions dated 29 July 2019, the NSW Police Force Report and the Coroner's Report dated 2 April 2019.

33.   AAMI consider AFT’s daughter to be wholly at fault for the motor accident. AAMI submits that based on the available evidence of the police, the Motor Accident Claims Services Ply Ltd factual report dated 27 July 2018 and the Coroner's report dated 2 April 2019, the insured driver did not breach the duty of care he owed AFT’s daughter. AAMI submits that AFT not entitled to be paid statutory benefits after 26 weeks from the date of the motor accident as AFT’s daughter is considered to be wholly at fault for the motor accident.

34.   Detective Senior Constable Ben Oelsnik in the brief of evidence to the Coroner listed the death of AFT’s daughter as accidental. She was well intoxicated and likely disorientated. It is believed AFT’s daughter was lying on the road engrossed with her phone at the time. The detective states that he considers the insured driver was not negligent.

35.   The police confirmed in its brief of evidence to the Coroner that no charges were laid against the insured driver.

Considerations

36.   The statutory benefits payable under the Motor Accident Injuries Act 2017 for the first 26 weeks are not dependant on fault being proved on the part of the insured driver. It is a no fault based scheme for the first 26 weeks after the motor accident.

37.   However, for the Insurer to be required to continue making weekly payments after the first 26 weeks, the Insurer must determine that its insured driver was at fault for the motor accident and the motor accident was not wholly or mostly caused by the fault of the injured person. After the first 26 weeks, the scheme is a fault based scheme.

38.   In other words, the insured driver must be found to have done something or not done something that he/she should or should not have done which caused the motor accident i.e. that the insured driver was negligent.

Legislation

39.   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
  • Civil Liability Act 2002

Reasons

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

41.   Refer to [3] to [1O] above which outline the circumstances surrounding this horrific motor accident.

42.   I am satisfied on the evidence that the motor accident was not caused by the fault of the insured driver. I am satisfied on the evidence that the insured driver did not breach the duty of care he owed to AFT’s daughter.

43.   I am satisfied on the evidence that the motor accident was caused wholly by the fault of AFT’s daughter when she lay face down in the middle of the road in a poorly lit area and on a country road. The area was in darkness with no artificial lighting.

44.   There is no question that the Insurer is required to act and must act within the constraints of the Motor Accident Injuries Act 2017 (refer [36] and [37] above).

Costs and disbursements

45.  The Claimant is self-represented. Accordingly, there is no claim for legal costs.

Conclusion

My determination of the Miscellaneous Claim is as follows:

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

47.  For the purposes of section 3.37 the insurer is entitled to refuse payment of statutory benefits after the first 26 weeks.

Geraldine Daley
DRS Claims Assessor
Dispute Resolution Service
29 August 2019