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Client settled for $550,000 after motorcycle accident
CTP Claim settled. Our client Mr C was involved in a motor vehicle accident injury sustained in 2019. He visited a self- storage facility in order to inspect a motorcycle intending to purchase for a relative.
Our client test drove the motorbike when the front wheel slipped on a metal grate, which caused him to fall over and hit his right cheek bone and both hands on the pavement. He sustained the following injuries:
A radial head fracture at the left elbow;
- Injury to the left and right hands/wrists;
- Head injury;
- Psychological injury.
Expert evidence via investigators engaged both by us and the CTP insurer indicates that the owner of the motorcycle applied tyre shine to the tyres before inspection.
Issues regarding primary liability
Maintenance of the motorcycle, including applying tyre shine product to the tyres, falls within the “use and operation” of the motor vehicle under the Motor Accident Injuries Act (NSW) 2017.
Initially, the owner gave evasive and vague statements to the CTP insurer’s investigator that he could not recall whether tyre shine was applied to the tyres. Further enquires by our investigator adduced information that the owner did apply tyre shine to the tyres. This stands in stark contrast to the signed statement provided to the CTP insurer’s investigator.
Our investigator has identified ample warnings on the internet and on the label of the tyre shine products that they ought not to be used on motorcycles. A two-wheeled vehicle such as a motorcycle has limited traction on the road and applying tyre shine on the threads heavily compromises traction.
Therefore, our client has a case based on the owner’s breach of duty of care in the maintenance of the vehicle contributing to an injury whist the vehicle was being ridden.
Issues regarding contributory negligence
There was as modest risk that our client may have been found to be contributorily negligent. Mr C was aware that tyre shine products should not be used on motorcycles but he took the bike on a test drive.
Payment of statutory benefits
The Motor Accident Injuries Act (NSW) 2017 provides for two separate regimes for compensation.
The first is the statutory benefits regime. The second is the damages regime.
We lodged a claim for statutory benefits on behalf of Mr C. The CTP insurer initially agreed to pay for the first 26 weeks, consistent with the no-fault application of the benefits regime during the first 26 weeks.
The CTP insurer initially denied payment of statutory benefits past 26 weeks after an internal review. We lodged a Miscellaneous Claims Dispute with the Personal Injury Commission in response. The CTP insurer subsequently issues a further Liability Notice accepting liability for payment of statutory benefits after the first 26 weeks but did not admit liability for common law damages.
Payment of damages and admission of liability for common law claim
Section 3.44 of the Motor Accident Injuries Act (NSW) 2017 specifically provides that a determination relating to fault in a statutory benefits claim is not binding in relation to common law claims.
We lodged a common law claim after the relevant period. The solicitors for the CTP insurer initially was of the view that they could not see how their insured was negligent. They were of the view that our client had slipped on his own accord.
The CTP insurer was put on notice that they may be liable for additional costs in preparing for a damages assessment claim at the Personal Injury Commission. Additional work would have been required in preparing updated medical reports, preparing witness statements and corroborative witnesses as to our client’s ongoing work restrictions.
Furthermore, we had obtained expert evidence that tyre shine should not be applied to motorcycles, and that the owner provided inconsistent version of events to the CTP insurer’s investigator and subsequently our own investigator.
Solicitors for the CTP insurer subsequently admitted that their client owed Mr C a duty of care, had breached that duty and that our client suffered injury, loss and damage.
Mr C worked as a business development manager at the time of the accident. Due to his injuries, he took 3 months off work and attempted to make a gradual return to work on a part-time basis.
We have obtained medio-legal reports which assessed that due to his physical and psychological injuries, our client will likely suffer lifelong disability and restrictions in his ability to work.
Mr C was made redundant in 2021, in part due to his inability to drive to visit clients for work and his inability to perform at this previous level.
Our client has also been assessed over 10% Whole Person Impairment for both his physical and psychological injuries.
We engaged in negotiations with the CTP insurer which led to a settlement of $550,000.
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