The Evic principle in determining 'fault'

The construction of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) (MAIA) and application of the sections to single vehicle motor accident claims (SVMAC) have been subject to different interpretations by Members of the Personal Injury Commission (PIC). The recent Supreme Court decision in AAI Limited t/as GIO v Evic¹ provided a clearer approach for assessing fault in determining statutory benefit entitlements under the MAIA.

Prior interpretations of 'fault'

SVMAC typically include an injured owner driver of a motor vehicle that loses control due to an external factor such as weather condition, an animal or debris on the road. Sections 3.11 and 3.28 of MAIA preclude the driver claimant from receiving statutory benefits after the initial 52 weeks period if 'the motor accident was caused wholly or mostly by the fault' of the claimant.

'Motor accident' is defined under section 1.4 of the MAIA as 'an accident involving the use or operation of a motor vehicle that causes the death or injury to a person where the death or injury is a result of and is caused during the driving of the vehicle' or in other circumstances as outlined in the section. The definition refers to an accident that caused injury to a claimant.

Applying the definition of 'motor accident', one interpretation of 'fault' under sections 3.11 and 3.28 of MAIA involves considering whether the use or operation of a vehicle which caused injury was caused by the fault of the claimant.

Members of the PIC have adopted different approaches to the construction of sections 3.11 and 3.28 of MAIA, including the following interpretations of 'fault' in SVMAC have been adopted:

1. If an accident was caused not by the fault of the claimant but due to external cause such as the condition of the roadway, then the accident would not fall under the definition of 'motor accident' under the MAIA and in such a scenario, the MAIA would not apply to such a claim.² Under this interpretation, a claimant would not be entitled to any compensation under the CTP scheme.
2. If there was any fault on the part of the claimant, the accident must have been caused wholly by the fault of the claimant, as there is no other person whose fault contributed to the accident.³ This interpretation would result in a claimant always being found to be wholly at fault if there is the slightest extent of fault, and ignores the words 'mostly by the fault' under sections 3.11 and 3.28 of MAIA.
3. If an accident was caused by a combination of fault on the claimant and external cause such as gyprock on the roadway or sun shining into eyes of claimant, then determination of the extent of the claimant’s fault is based on application of the Podrebersek⁴ test, namely the comparative culpability of each party.⁵ However, application of the Podrebersek test is problematic for SVMAC as there is no second party involved in the claim or another person involved if the contribution to the accident is an object or the natural environment, which cannot be legal persons under the law of torts.
4. Determination of fault only requires determination of the degree of the claimant’s contributory negligence by adopting the Axiak⁶ approach, namely reference to the departure from the standard of care the claimant was required to take for their own safety.⁷ Under this interpretation, it is only relevant to determine the cause of the accident and not the cause of claimant’s injury.

The Evic principle

The Supreme Court handed down its decision in AAI Limited t/as GIO v Evic on 11 October 2024. The accident involved an owner driver who was injured whilst attempting to ride his motorcycle. The claimant suffered a spiral fracture to his left leg when the bike’s left foot peg became caught between the claimant’s boots and his riding pants, causing the bike to fall onto the claimant. The accident did not involve any other party.

The PIC Member found that 'fault' must be constructed through the prism of the actionable tort of negligence, and as an owner driver does not have an actionable claim in damages against themselves, 'an owner driver injured in a single motor accident cannot be “at fault” and therefore cannot be wholly or mostly at fault' because the concept of contributory negligence, being the usual comparative analysis of culpability undertaken in an actionable claim in negligence cannot apply in SVMAC.⁸ This construction is problematic because by adopting this interpretation, a claimant in SVMAC can never be found at fault under sections 3.11 and 3.28 of MAIA.

Justice Mitchelmore disagreed with the PIC Member’s interpretation of 'fault' under sections 3.11 and 3.28 of MAIA and made the following findings:

1. Sections 3.11 and 3.28 of MAIA use the word 'fault' accompanied by a qualifying phrase 'wholly or mostly' which clearly invokes contributory negligence. That is confirmed by the express references, in subs (2), both to contributory negligence and s3.38.
2. Consistently with the balance of Part 3 (which deals with statutory benefits), the provisions are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver.
3. The concept of contributory negligence is not only for a tortious purpose. Axiak is an example of how contributory negligence can be applied in the absence of a tortious defendant. The inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence.
4. The PIC Member erred in finding that the term 'fault' in sections 3.11 and 3.28 of MAIA must be construed to refer only to the actionable tort of negligence, thus excluding contributory negligence, where an owner driver is injured in a single vehicle accident.

Mitchelmore J referenced observations of Fagan J in AAI Limited v Singh⁹ that in sections 3.11 and 3.28 of MAIA the limitation to statutory benefits relates to fault in the causation of the motor accident, not fault in the causation of injury. Mitchelmore J found that the focus on contributory negligence with respect to assessing fault under sections 3.11 and 3.28 of MAIA may be contrasted with the provisions of Part 4 of MAIA, where a claim for damages relates to 'the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle': s4.1 of MAIA.

Mitchelmore J contended that there was no need to give a different meaning to the word 'fault' under sections 3.11 and 3.28 of MAIA. Rather, the focus was on the composite phrase 'caused wholly or mostly by the fault of the person', which can be read as directed at an enquiry as to the injured person’s contributory negligence for the motor accident, irrespective of the number of motor vehicles involved and how the claimant came to be injured. The point of difference lies in the nature of that enquiry where the injured person is an owner driver and only a single motor vehicle is involved.

The Evic principle as to interpretation of 'fault' for statutory benefits is consistent with the approach in Singh. If causation of injury should be disregarded in determining fault for statutory benefits, an additional definition for 'motor accident' under Part 3 of MAIA may be required.

Application of the Evic principle

The Evic principle has already been applied by the PIC Member in Custovic v Allianz¹⁰. The incident involved a driver claimant who lost control of his motorcycle when he collided with a tree which had fallen across a fire trail. The insurer denied liability under sections 3.11 and 3.28 of the MAIA for the claimant’s entitlement to statutory benefits after the first 52 weeks on the basis that the claimant was wholly or mostly at fault for his accident.

The PIC Member noted that the only issue was whether the claimant was partially responsible for the accident and if so, the extent of his contributory negligence, because the claimant did not have to prove fault in order to recover statutory benefits pursuant to Part 3 of MAIA. In assessing contributory negligence, the PIC Member considered the extent that the claimant departed from the standard of care expected of them in the circumstances.

The claimant was found 75% responsible for his accident and thus mostly at fault under sections 3.11 and 3.28 of the MAIA precluding the claimant receiving ongoing statutory benefits. Prior to the Evic decision, a PIC Member would have considered whether there was any fault by the authority responsible for maintaining the fire trail and assess the relative culpability between the authority and the claimant. The Evic principle makes it clear that in SVMAC, a PIC Member is only required to consider the extent of contributory negligence of the claimant for the accident without the need to assess any other party’s culpability.

For more details on the evolution of assessing fault in SVMAC, see our previous article ‘Statutory benefits and single vehicle motor accidents in NSW’.

AAI Limited t/as GIO v Evic [2024] NSWSC 1272

¹ [2024] NSWSC 1272
² Desmond v GIO [2021] NSWPIC 437
³ Al Helou v AAI Limited t/as GIO [2022] NSWPIC 579
⁴ Podrebersek v Australian Iron and Steel [1985] HCA 34
⁵ ABE v AAI Ltd t/as GIO [2021] NSWPIC 164; Gazal v QBE Insurance (Australia) Limited [2021] NSWPIC 492
⁶ Axiak v Ingram [2012] NSWCA 311
⁷ Yankovich v AAL Limited t/as GIO [2022] NSWPIC 137
⁸ GIO v Evic (PIC No. M20147/23)
⁹ [2019] NSWSC 1300
¹⁰ [2024] NSWPIC 605