Helen Huang
Special Counsel
CTP Insurance, Insurance
I rear-ended you because my brakes failed, I’m not at fault?!
23 September, 2024
In Brief
- Where an injured person is ‘mostly at fault’, their statutory benefits cease after 52 weeks; s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA).
- “Mostly at fault” is defined in section 3.11(2) to be “greater than 61%” contributory negligence.
- Section 3.38 of MAIA states even if an injured person is not mostly at fault, their weekly payments may be reduced after 52 weeks by the extent of their contributory negligence.
Facts
On 20 September 2024, the Personal Injury Commission published its decision in Stern v AAI Limited t/as AAMI [2024] NSWPIC 497.
The Claimant claimed that his brakes failed which caused a rear end motor vehicle accident.
The Insurer determined that the Claimant was wholly at fault for the accident because the vehicle was properly maintained and there was no defect in the vehicle.
The matter proceeded to assessment before the Commission.
The Member’s Reasons
The Member noted the following principles relevant to most at fault disputes:
- It is for the Insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident was caused wholly (or mostly) by the fault of the Claimant:Insurance Australia Limited t/as NRMA v Richards[2023] NSWSC 909 at [45] [55] and [67].
- The driver of a motor vehicle is required to take reasonable care having regard to all the circumstances: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26].
The Member determined the Claimant was wholly at fault for purposes of section 3.11 and 3.28 of the Act, for the following reasons:
- On the balance of probabilities, the Member was not satisfied the brakes of the vehicle driven by the Claimant “failed” because the Claimant had used the vehicle for a period of five weeks prior to the accident and there was no evidence of problems with the brakes on any occasion prior to the collision.
- The most likely explanation is that the Claimant applied the brakes forcefully, the vehicle skidded on the wet and slippery road, and collided with the stationary vehicle in front.
- The Claimant failed to exercise reasonable care in the driving of the vehicle and the accident was caused by the Claimant’s fault.
- The Claimant’s conduct was the only cause of the accident that involved fault.
As a result, the Claimant is not entitled to statutory benefits after the initial period because he is considered to be mostly at fault.
Key Learnings
This decision reminds us:
- Each matter turns on its own facts.
- The burden of proving the accident was caused wholly or mostly by the fault of the Claimant lies with the Insurer.
- The leading authority is for the Insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits but also persuades the Commission that on all of the evidence, it cannot be concluded that the accident was caused wholly or mostly at fault by the Claimant; Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45] [55] and [67].
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.
