Overtaking a slow-moving vehicle – are you wholly or mostly at fault? Hall v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 617

In Brief

• An injured person is not entitled to statutory benefits more than 26 weeks after a motor accident, if the motor accident was caused wholly or mostly by the fault of that person (section 3.11(1)(a) and section 3.28 (1)(a) of the Motor Accident Injuries Act 2017 (MAIA)).
• For the purposes of section 3.11 and section 3.28 of the MAIA, a motor accident is caused mostly by the fault of a person, if the contributory negligence of the person is greater than 61%.
• The onus of proving the Claimant was wholly or mostly at fault rests with the Insurer.

Facts

On 1 December 2023 the Personal Injury Commission (PIC) released its decision in Hall v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 617.

The Claimant was injured in a motor vehicle accident when he attempted to overtake the Insured vehicle. The Insured was looking for the entrance to a property on his right. The Claimant assumed that the Insured driver had pulled over to the left and decided to overtake the Insured’s slow-moving vehicle. The Insured began his right turn as the Claimant began to overtake his vehicle – resulting in a collision.

The Insurer denied liability for the claim after 26 weeks on the basis that the Claimant was wholly at fault for the accident.

The Claimant alleged that the Insured driver was wholly at fault.

The Claimant sought an internal review and the decision was affirmed.

The Claimant lodged a miscellaneous assessment with the PIC to resolve the most-at-fault dispute.

PIC Member’s Reasons

Issues

The PIC Member was called upon to determine two issues:

1. Whether the accident was caused wholly by the fault of the Claimant.
2. Whether the Claimant was mostly at fault.

Was the Claimant wholly at fault?

The Member made the following findings of fact:

• The Insured driver was less certain of the location of his destination because he did not approach the location from the direction he was accustomed to.
• The Insured driver was concentrating more on locating the entrance of the property than monitoring oncoming traffic, in anticipation of making a right-hand turn.
• The Insured driver did not activate his right indicator when he negotiated the bend prior to the location of the accident given that neither the Claimant nor another witness saw any indicator.
• The Insured had not activated his right indicator when the Claimant began to overtake his vehicle.
• The Insured only activated his indicator as he commenced the right-hand turn.

The Member found that the Claimant was not wholly at fault because each party was partially to blame for the accident.

Was the Claimant mostly at fault?

The Member found the culpability of the Insured driver was probably greater than the Claimant, because the Claimant would not have attempted to overtake the Insured vehicle if the Insured had indicated his intention to make a right turn – thus the accident would not have occurred.

The Member did not find that the Claimant was mostly at fault.

Key Learnings

The decision in Hall v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 617 reminds us that:

• The burden of proving that an accident has been wholly or mostly caused by the fault of the Claimant lies with the Insurer.
• The leading authority is for the Insurer to lead evidence that not only establishes the basis of its decision in relation to the claimed statutory benefits, but which 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 (see 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.