CTP Insurance, Insurance

Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents

11 November, 2024

In Brief

A Claimant is not entitled to ongoing statutory benefits, beyond 12 months, if they are wholly or mostly at fault for their accident – s 3.11(1)(a) and s 3.28(1)(a) of the Motor Accident Injuries Act 2017 (MAIA)
In single vehicle accidents, “relative culpability” is an inappropriate measure of contributory negligence because there is no other culpable party.
Instead, in single vehicle accidents, contributory negligence should be measured by reference to the extent that the injured driver’s driving behaviour departed from the standard of care expected from them in the circumstances.

Facts

The Personal Injury Commission (PIC) published its decision in Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605 on 8 November 2024.

On 24 September 2023, the Claimant rode his motorbike along a fire trail near Yanderra in the Southern Highlands of New South Wales. He lost control of his motorbike when he collided with a tree which had fallen across the path. A friend riding ahead of the Claimant had manage to stop in time and avoided colliding with the tree.

Given that the Claimant was injured in a motor accident in NSW, the Insurer accepted liability to pay statutory benefits for the first 12 months. The Insurer, however, denied liability beyond 12 months on the grounds that the Claimant was wholly or mostly at fault for his accident and, therefore, precluded by s 3.11(1)(a) and s 3.28(1)(a) of MAIA.

The insurer’s liability decision was confirmed on Internal Review.

The Claimant lodged an Application for Miscellaneous Assessment.

The PIC Member’s Findings of Fact

After reviewing all the evidence, the PIC Member determined that the accident occurred as follows:

Whilst the Claimant had ridden his motorcycle on fire trails before, he and not previously ridden along this specific fire trail.
The Claimant was riding at between 20 kph and 40 kph as he approached the accident site.
The Claimant’s friend was riding ahead of him on the fire trail.
There was a fallen tree across the fire trail.
There was a bump in the road which obscured the Claimant’s vision of the fallen tree.
The Claimant’s friend hit his brakes hard when he saw the fallen tree and managed to stop in time, although he still made contact with the tree and bounced back.
The Claimant’s friend turned and tried to warn the Claimant about the presence of the fallen tree.
The Claimant rode over the bump and into the fallen tree.

The PIC Member’s Decision

The PIC Member determined that the Claimant was 75% responsible for his accident for the following reasons:

Given that the Claimant did not have to proof fault in order to recover statutory benefits pursuant to Part 3 of MAIA, it was not necessary to make any finding with regard to any fault by the authority responsible for maintaining the fire trail or with regard to any fault by the Claimant’s friend.
The only issue was whether the Claimant was partially responsible for the accident and, if so, the extent of his contributory negligence.
In single vehicle accidents, contributory negligence is assessed by reference to the extent that the injured driver departed from the standard of care expected from them in the circumstances.
The Claimant was partially responsible for the accident because he did not reduce his speed after he lost sight of his friend whilst riding through unfamiliar bush land on a fire trail he had not previously traversed.
Whilst the Claimant may have been riding at a low speed, his speed was not reasonable for the prevailing circumstances.
The fact that the Claimant’s friend was able to stop in time suggests that the Claimant was travelling too fast and that he failed to maintain a proper lookout.

For these reasons, the PIC Member found that the Claimant was mostly at fault for his accident.

Key Learnings

In assessing the most-at-fault dispute, the PIC Member applied the recent Supreme Court decision in AAI Limited t/as GIO v Evic. In that matter, Mitchelmore J found that assessing “relative culpability” is an inappropriate way of assessing contributory negligence in single vehicle accidents. The proper test in single vehicle accidents, rather, is to look at the degree to which the driver departed from the standard of care required of them.

In this case, it may have been tempting to compare the Claimant’s culpability against that of the authority responsible for maintaining the fire trail and/or the culpability of the Claimant’s friend. The decision in Evic, however, makes it clear that any such temptation should be resisted. As the PIC Member found, in single vehicle accidents, the correct test is to ignore any third party culpability and only consider the extent to which the Claimant departed from the standard of care he was expected to maintain.

In claims involving more than one driver or claims involving, for example, a driver and a pedestrian, it remains appropriate to assess contributory negligence by reference to the relative culpability of the driver and the injured person.

Our full case note on AAI Limited t/as GIO v Evic can be accessed here.

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.