Hypothetical by Manny Wood Published in the Coffs Coast Advocate on 23 November 2019.
While riding his motorcycle on the highway, Jason is struck by a car driven by Heather.
Jason suffers injuries, which prevent him from attending work for a significant period. He makes a claim under Heather’s Compulsory Third Party Insurance.
The Motor Accident Injuries Act 2017 (Act) entitles Jason to up to 26 weeks of payments for lost wages, even if he is at fault for the accident. If he is not at fault, lost wages may continue beyond the 26-week period.
About 5 months after the accident, Jason receives a letter from the Insurer indicating that he has been found to be “wholly or mostly at fault” for the accident on the basis that Heather claimed Jason was performing an illegal U-turn when her car hit him.
Jason denies that he was performing a U-turn at the time of the accident and claims he had left the highway and was on the shoulder, not on the road, when Heather’s car hit him. The Insurer maintains its position so Jason files an application with the Dispute Resolution Service (DRS).
Jason argues that the Insurer bears the onus of proving that he was “wholly or mostly at fault” for the accident, which is ultimately conceded by the Insurer.
However, the Insurer fails to file evidence from the police witnesses or from Heather. Then, ten days before the hearing, the Insurer concedes it cannot prove Jason was at fault and agrees to continue paying Jason’s lost wages after 26 weeks.
Jason then makes submissions about his legal costs. While the legislation limits the legal costs payable by the Insurer to just $1,633.00, Jason successfully claims that “exceptional circumstances” exist that warrant additional costs to be paid. The Assessor agrees and Jason is awarded costs in excess of $20,000.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
