Peter Hunt
Principal
CTP Insurance, Insurance
Supreme Court Holds Owner Drivers are Subject to Most at Fault Provisions
14 October, 2024
In Brief
- Pursuant to s 3.11(1)(a) and s 3.28(1)(a) of the Motor Accident Injuries Act 2017 (MAIA), a Claimant’s entitlement to ongoing statutory benefits is terminated at 52 weeks where they are wholly or mostly at fault for their accident.
- The restrictions in s 3.11(1)(a) and s 3.28(1)(a) of MAIA apply to all Claimants, including drivers injured in a single vehicle accident involving a vehicle they happen to own.
- In single vehicle accidents, contributory negligence is measured by the extent to which the Claimant’s driving departed from the standard of care expected from them.
Facts
The Supreme Court handed down its decision in AAI Limited t/as GIO v Evic on 11 October 2024.
On 20 November 2022, the Claimant was injured whilst attempting to ride his motorcycle. After mounting his motorcycle, the left foot peg became caught between the Claimant’s boots and his riding pants, causing the bike to fall to the left. The Claimant was trapped under the motorcycle and he suffered a spiral fracture to his left leg.
Importantly, the accident did not involve the owner or driver of any other vehicle. Equally importantly, the Claimant owned the motorcycle he was attempting to ride.
On 20 April 2023, the Insurer served a second Liability Notice which denied liability to pay the Claimant ongoing statutory benefits because the Claimant was wholly or mostly at fault for his accident – see s 3.11(1)(a) and s 3.28(1)(a) of MAIA.
Following an unsuccessful Internal Review, the Claimant sought a Miscellaneous Assessment in the Personal Injury Commission (PIC).
The PIC Member determined that an injured Claimant who owned the vehicle they were driving in a single vehicle motor accident could not be “at fault” and could, therefore, not be wholly or mostly at fault. The Member reasoned that the owner driver does not have an actionable claim in damages against themselves. Furthermore, the concept of “relative culpability” cannot apply where only one person is involved in the accident.
On this basis, the PIC Member held that the restrictions in s 3.11(1)(a) and s 3.28(1)(a) of MAIA did not apply in single vehicle accidents where the injured driver happened to own the vehicle they were driving.
The Supreme Court Decision
Justice Mitchelmore disagreed with the PIC Member’s conclusions for the following reasons:
- Section 3.11(1)(a) and 3.28(1)(a) are directed at the extent to which the Claimant’s failure to exercise reasonable care contributed to the motor accident. These sections use the word “fault” accompanied by the qualifying phrase ”wholly or mostly” which clearly invokes the legal concept of “contributory negligence“. Furthermore, “contributory negligence” is specifically referenced in ss 3.11(2) and 3.28(2).
- Consistent with the balance of Part 3 (dealing with the statutory benefits regime), ss 3.11(1)(a) and 3.28(1)(a) are concerned with contributory negligence in a manner that accommodates all types of motor accidents, including single vehicle accidents where the Claimant is both the driver and the owner of the vehicle.
- The inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence. In “no-fault” claims, for example, where one party is only deemed to be at fault, the contributory negligence of the at-fault party is measured by reference to their departure from the standard of care expected from them in the circumstances.
- Ultimately, the Member erred by conflating the concept of contributory negligence for a tortious purpose – as found in Parts 4 and 5 of MAIA – with the concept of contributory negligence as used in the non-tortious scheme of statutory benefits found in Part 3 of MAIA.
Whilst Mitchelmore J accepted that the Member erred, the PIC decision was not quashed because the Insurer accepted the PIC Member’s alternate finding that she was not satisfied that the Claimant failed to exercise reasonable care and skill in his operation of the motorcycle.
Key Learnings
The decision in Evic confirms that the restrictions in s 3.11(1)(a) and s 3.28(1)(a) of MAIA apply to all statutory benefit claims. Contrary to the PIC Member’s findings, there is no exception for drivers in single vehicle accidents who happen to own the vehicle they were driving.
In other words, an owner driver, involved in a single vehicle accident, is not entitled to ongoing statutory benefits beyond 52 weeks if they are wholly or mostly at fault for their accident; just like any other person who makes a claim for statutory benefits.
Given that relative culpability is an inappropriate measure of contributory negligence when only one party is involved, the relevant test in single vehicle accidents is the extent to which the injured driver departed from the standard of care expected from them. If that departure warrants a finding of contributory negligence exceeding 61%, then their statutory benefits will be terminated at 52 weeks.
Finally, it is worth noting that whilst an owner driver in a single vehicle accident may be entitled to ongoing statutory benefits, it remains the case that they are not entitled to damages under common law pursuant to the “no-fault” provisions in Part 5 of MAIA. Section 5.4 of MAIA says that a driver is precluded from recovering damages under the “no-fault” scheme if any act or omission on their part caused or contributed to the cause of the accident, even if their act or omission was involuntary, was not the sole or primary cause of the accident and did not amount to negligence. Furthermore, the owner driver can not sue themselves – see Whitfield v Melenewycz.
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.
