Helen Huang
Special Counsel
CTP Insurance, Insurance
Pedestrian most at fault in St Patrick’s Day drama?
25 March, 2024
In Brief
- Where an injured person is ‘mostly at fault’, their statutory benefits cease after 26 weeks; section 3.11 and section 3.28 of the Motor Accident Injuries Act 2017 (MAIA).
- A claimant is “mostly at fault” if their contributory negligence exceeds 61%: section 3.11(2) of MAIA.
- Section 3.38 of MAIA states even if an injured person is not mostly at fault, their weekly payments may be reduced after 26 weeks by the extent of their contributory negligence.
- For accidents after 1 April 2023, the relevant period is 52 weeks, rather than 26 weeks.
Facts
On 22 March 2024, the Personal Injury Commission published its decision in Kelly v Allianz Australia Insurance Limited [2024] NSWPIC 108.
The Claimant was injured in a motor vehicle accident on 18 March 2023 at Rose Bay wharf.
The Claimant left a St Patrick’s Day boat party, allegedly heavily intoxicated. At the same time, the Insured driver was driving his motor vehicle, from the ramp, having dropped his boat into the water.
The Insured driver states he was travelling at a slow pace, less than 5km/h as the Claimant was walking over the roadway. The Insured alleged that the Claimant failed to see the trailer and walked into the side wheel of the trailer, which knocked her down and dragged her to the ground.
The Insurer accepted liability for statutory benefits for the first 26 weeks.
Liability beyond 26 weeks was denied on the basis that the accident was a no fault accident and contributory negligence was alleged at 80% i.e. the Claimant was mostly at fault for the accident.
An internal reviewer affirmed the Insurer’s decision that the Claimant was 80% responsible for the accident.
The Claimant referred the dispute to the Commission for determination.
The Member’s Determination
Evidence
The Claimant’s stated she consumed four cans of a pre-mixed alcoholic beverage and that she was “not intoxicated” or “feeling drunk at all”. The Claimant stated she was standing on the corner of the intersection of the wharf and carpark and did not recall anything, until being lifted out of the trailer/tyre. The Claimant was advised a car, towing a boat trailer, had hit her and she was dragged along.
A witness statement was provided. The witness also attended the same cruise as the Claimant on St Patrick’s Day and states he was walking behind the Claimant with a friend but the Claimant did not seem intoxicated.
The Insured driver states he was driving straight, past the ramp, so he could reverse down the ramp, he did not drive the car up on the gutter or ramp. He states he did not see the Claimant until he turned around and saw her in a sitting position on the road but in the trailer.
The hospital records and progress notes record the Claimant was intoxicated and had no recollection of events.
The pathology results record the Claimant’s blood alcohol content was 0.14% on the evening of the motor vehicle accident.
Determination
The parties agreed for the Member to have the matter determined on the papers.
The Member did not accept the Insurer’s submission that the witness’s statement should be given no weight because the witness was intoxicated when the accident occurred. The Member found there was no evidence as to the type of alcohol or quantity of alcohol consumed. The Member accepted the witness did consume some alcohol on the cruise and therefore the alcohol consumption may have affected the reliability of the witness’s recollection of events.
The Member accepted the Claimant was under the influence of alcohol based on the hospital records of 0.14%, together with observations made by the Hospital staff and the investigating police officer’s account given their professional knowledge and experience.
The Member accepted the Insured was travelling forward at a low speed, the Claimant was standing in or around the location of the pathway, near the boat ramp and the Insured driver did not cut the corner. The Member found, on the balance of probabilities, that the Claimant stepped or stumbled backwards into the trailer, after the Insured’s vehicle and part of the trailer had passed her.
The Member found the Claimant failed to look before she stepped backwards into the path of the trailer.
The Member determined the Claimant’s contributory negligence was greater than 61%.
The Member found the Claimant mostly at fault for the accident.
Key Learnings
This decision reminds us the assessment of contributory negligence is always difficult because multiple variables are at play and no two cases are exactly the same.
This decision also reminds us that the onus is on the Insurer to satisfy the Member that the Claimant’s contributory negligence was greater than 61% and the Claimant was, therefore, most at fault for their accident.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
