|NSW DISPUTE RESOLUTION SERVICE (NSWDRS)|
|Jurisdiction||Miscellaneous Claims Assessment|
|Catchwords||Wholly or mostly at fault – reversed vehicle over foot – contributory negligence – no independent witnesses – police report|
Motor Accident Injuries Act 2017 (NSW) ss 1.3, 3.11(2), 3.28, 7.36(4), 7.36(5), Schedule 2(3), Schedule 2(3)(e)|
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines 2017 cl 4.41.2, 4.41.3, 7.192, 7.441
AHI – Claimant
NRMA Insurance – Insurer
|Disclaimer||This 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
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 whether the motor accident was caused mostly by the fault of the injured person.
1.The motor accident occurred on 30 November 2018 when the claimant's wife reversed her motor vehicle over his foot in the driveway of their home during the course of a matrimonial dispute. The exact circumstances of the incident are disputed. The claimant suffered inter alia a fracture of the medial malleolus which is not a minor injury as defined by the Act.
2.The insurer issued a Liability Notice - Benefits After 26 weeks on 26 April 2019 determining that the claim for statutory benefits after 26 weeks was declined on the basis that the claimant was wholly at fault for the motor accident and his injuries.
3.The claimant sought an internal review of that decision which was substituted on 28August 2019 with a Certificate of Determination - Internal Review which made a new decision to decline statutory benefits after 26 weeks for the reason that the claimant was found to have been mostly at fault for the accident instead of wholly at fault for the accident.
4.The claimant subsequently lodged an application with the DRS for external review of the insurer's decision. Notwithstanding that the application was made late, it has been allocated to me for determination, pursuant to the discretionary power under clause 7.192 of the Motor Accidents Guidelines 2019 ("the Guidelines"), consistent with section 1.3 of the Act.
5. I have considered the documents provided in the Application and the Reply and any further information provided by the parties.
6.The claimant disputes the insurer's finding of 61% contributory negligence. He refers to and relies upon his submissions outlined in the letter to the insurer dated 28 May 2019 to challenge the insurer's position on liability.
7.The insurer says as follows:
The insurer also submits that a driver is held to the standard of what a careful and prudent person would do in the circumstances of a claimant who puts himself at risk.
8.Neither party has provided any further submissions since the First Teleconference that was held on 11 November last.
9.It is submitted for the claimant that the insurer has failed to produce evidence to support its assertion that the claimant moved into the path of the insured vehicle and consequently failed to provide reasons for its decision in line with clauses 4.41.2 and 4.41.3 of the Guidelines.
10. The insurer bears the onus of proving, on the balance of probability, that the claimant was mostly at fault for the motor accident, being more than 61% responsible as prescribed by section 3.11 (2) of the Act.
11. There is no need for me to recite the relevant statutory provisions as they are set out in the parties' submissions.
12. There is conflicting evidence in the parties' statements as to how the motor accident occurred. The only independent evidence is contained in the NSW Police Report (A3) and the NSW Ambulance Report (A4). The incident is described in Police Report in the following terms:
The NSW Ambulance report contains the following notation:
The alternative explanation, upon which the insurer relies, is contained in paragraph 34 of the statement given by the insured driver, who is the claimants wife. AHI says that I later realised that he must have slid his foot behind the front driver side tyre somehow after I began reversing.
13. The parties asked that I undertake my assessment on the papers. Neither sought to question the other party on their statement. I note that the claimant's statement is not signed. It may be that the insurer is in possession of a signed version as it takes no issue with the apparent defect.
14. The nub of the insurers case seems to be the submission which I have recited at paragraph 7 of these Reasons. The difficulty with that submission is that it does not provide an answer to my question: Why?
15. Having considered all of the documentary material, particularly the parties' statements and submissions, I am not satisfied, to the civil standard of proof, that the claimant's responsibility for the motor accident exceeds 61%. There is conflicting evidence and the parties apparently are embroiled in divorce proceedings and criminal proceedings arising from a subsequent domestic violence incident. I think it is unlikely that the claimant deliberately slid his foot under the tyre of the motor vehicle. I think it is likely that the incident was purely accidental albeit in the heat of the moment.
16. Whilst it is not necessary for me to determine the relative culpabilities of the parties, I am inclined to think they should bear equal responsibility. That is an observation and not a finding.
17. The claimant seeks the maximum allowed under the Motor Accidents Injury Regulation 2017. No disbursements are claimed.
18. There has been a teleconference and submissions made by the claimant.
19. In my view, the claimant is entitled to the maximum amount of costs permitted by the Regulation. That is the sum of $1,633.00 plus GST.
Gary Victor Patterson
DRS Claims Assessor
Dispute Resolution Services