Peter Hunt
Principal
CTP Insurance, Insurance
Assessing Contributory Negligence in Single Vehicle Accidents
2 September, 2024
In Brief
- Pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAIA) a Claimant is not entitled to ongoing statutory benefits if they are wholly or mostly at fault for their accident.
- In single vehicle accidents, contributory negligence is assessed by reference to the extent to which the Claimant departed from the standard of care expected from a person in their position.
Facts
The Personal Injury Commission published its decision in McDonough v Youi Pty Limited [2024] NSWPIC 445 on 30 August 2024.
The Claimant was involved in a single-vehicle motorcycle accident on 19 July 2021. He was riding his motorcycle to work. He passed through one intersection. When he looked ahead to the next intersection, he saw stationary vehicles ahead of him.
The Claimant braked and lost control of his motorbike. He and his motorbike slid along the road before coming to a halt just short of one of the stationary vehicles.
The Claimant argued that the only explanation for his loss of control was that there must have been some slippery substance on the road. He gave evidence that it was like braking on ice.
The Insurer declined liability for statutory benefits beyond 26 weeks on the grounds that the Claimant was wholly or mostly at fault. That decision was confirmed on internal review.
The Claimant lodged a miscellaneous assessment dispute in the Personal Injury Commission.
The Member’s Reasons
The Member accepted that there was a substance on the road, which the Claimant did not see, which contributed to his loss of control. It followed that the Claimant was not wholly at fault for his accident.
The Member, however, found the Claimant mostly at fault for the following reasons:
- The Claimant was following his usual route to work.
- Given that he was familiar with the environment, he ought to have known that he was travelling through an industrial area, frequented by heavy vehicles, and there may have been oil or diesel spills in the area.
- The Claimant also ought to have been aware that the weather conditions were damp and foggy, which affected both the condition of the road and the general visibility.
- Given the circumstances, a reasonable person in the Claimant’s position would have driven at or below the speed limit.
- The evidence, including the distance the Claimant’s motorcycle slid, was consistent with expert opinion that the Claimant was travelling at 120kph before he braked.
Given that the Claimant was involved in a single vehicle accident, the Member confirmed that contributory negligence is assessed by reference to the extent that the Claimant’s conduct failed to conform with the standard of care expected of a person in their position.
On this basis, the Member assessed the Claimant’s contributory negligence at 80% and found that he was, therefore, most at fault for his accident.
Key Learnings
The decision in McDonough is instructive because the PIC Member found that the Claimant was not wholly at fault even though he was involved in a single vehicle motor accident. The Member effectively found that the road surface was 20% responsible for the accident and the Claimant’s excessive speed was 80% responsible for the accident.
It is also worth pointing out that, based on the findings made by the Member, the Claimant would not be entitled to common law damages, based on the no-fault provisions in Part 5 of MAIA. Even if the accident was found to be a no-fault accident, s 5.4 would preclude the recovery of damages because the accident was substantially caused by the Claimant’s own act or omission. Furthermore, as the owner of the motorcycle he was riding, the Claimant would have nobody to sue.
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 Principal, Peter Hunt, today.
