AAI v Evic [2024] NSWSC 1272: what “wholly or mostly at fault” means in NSW CTP claims
In AAI Limited t/as GIO v Evic [2024] NSWSC 1272, Mitchelmore J considered how ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (NSW) should operate when an insurer argues the injured person was wholly or mostly at fault. For claimants, the practical point is this: the enquiry is directed to contributory negligence in relation to the motor accident, not just a simplistic “single vehicle means you must be at fault” shortcut.
This is a practical claimant-facing summary, not a substitute for legal advice. If an insurer is trying to stop weekly benefits or treatment/care expenses on a mostly-at-fault argument, the decision is worth understanding because it helps frame the correct dispute question.
What the Supreme Court said in plain English
Mitchelmore J considered the wording in ss 3.11 and 3.28, which govern cessation of weekly benefits and treatment/care benefits after the relevant period where the insurer says the accident was caused wholly or mostly by the injured person’s fault.
The important takeaways from the judgment include:
- at [57], the provisions are directed to the extent to which the injured person’s failure to take reasonable care contributed to the motor accident
- at [73], the composite phrase “caused wholly or mostly by the fault of the person” is read as an enquiry into contributory negligence for the motor accident
- that enquiry is not defeated or controlled just by the number of vehicles involved or the mechanism of injury
Why this matters for NSW CTP claimants
Insurers sometimes rely on mostly-at-fault wording when cutting off weekly benefits or treatment/care support. Evic matters because it reinforces that the real question is contributory negligence in relation to the motor accident.
That can be especially important in unusual fact patterns, including single-vehicle accidents, owner-driver claims, or incidents where the mechanism of injury is awkward and the insurer tries to compress the analysis into a blunt fault conclusion.
In practice, the issue is not just “were you the only vehicle involved?” The issue is whether the evidence actually supports a finding that the accident was wholly or mostly caused by your own fault under the statutory scheme.
Where insurers may misuse the issue
A weak insurer argument often looks like this: because the accident involved only your own vehicle, the insurer says that must mean you were wholly or mostly at fault. That is too blunt.
The proper enquiry is still whether your conduct amounted to contributory negligence in relation to the motor accident and, if so, to what extent. That is why facts, mechanism, surrounding circumstances, and contemporaneous evidence still matter.
Practical warning sign
If the insurer notice leaps from “single vehicle accident” to “you were wholly or mostly at fault” without a careful contributory-negligence analysis, that should be checked carefully.
Evidence that usually matters most in an Evic-style dispute
These disputes are rarely won by abstract argument alone. The insurer usually has to be answered with a tight factual and evidentiary bundle showing why the mostly-at-fault conclusion is too simplistic or legally overstated.
- Police and scene records: event reports, diagrams, photographs, road condition details, weather, and any notation about obstacles, animals, mechanical failure, or evasive action.
- Witness and independent material: passenger accounts, nearby witnesses, dashcam, CCTV, towing records, and vehicle-inspection evidence where the mechanism is disputed.
- Early medical chronology: ambulance, hospital, GP, and certificate records that preserve the immediate accident history before hindsight and insurer shorthand reshape it.
- Insurer reasoning documents: the exact notice, review reasons, and any statement that collapses the analysis into “single vehicle therefore mostly at fault”.
- Pathway-specific loss material: if weekly payments or treatment have been cut off, keep the earnings, certificate, and treatment chronology aligned with the fault dispute so the benefits consequences are visible, not abstract.
In practice, the best files usually connect the liability argument to the live benefits problem. If the insurer is using a mostly-at-fault position to stop weekly payments or resist treatment approval, the review bundle should make that consequence explicit.
Common mistakes that weaken mostly-at-fault challenges
- Arguing fairness instead of evidence: saying the insurer is being harsh without identifying the actual factual or legal gap in the reasoning.
- Ignoring contemporaneous records: later explanations are much weaker if early police, ambulance, or hospital material is left unreconciled.
- Treating liability and benefits as separate universes: if the mostly-at-fault decision is cutting off payments, the dispute material should be built for the live review/PIC pathway, not just for general complaint purposes.
- Missing the correct stream: some arguments belong in internal review first and then the correct PIC stream, rather than drifting while time limits run.
- Overlooking adjacent contributory-negligence issues: even where the insurer overreaches, there may still be a real apportionment argument that needs a careful response rather than an all-or-nothing position.
Practical next steps if benefits are being cut off
- Read the insurer notice carefully and isolate the exact statutory basis relied on.
- Preserve the factual accident narrative and any independent evidence.
- Check whether the insurer has actually reasoned through contributory negligence, rather than assuming fault from the accident format.
- Move quickly into internal review and the correct PIC pathway if weekly payments or treatment benefits are being stopped.
If you want broader context, the full AustLII decision is here: AAI Limited t/as GIO v Evic [2024] NSWSC 1272.
Frequently asked questions
- What did AAI Limited t/as GIO v Evic decide?
- The NSW Supreme Court said the wording in ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 is directed to the injured person’s contributory negligence in relation to the motor accident, not just a narrow count of how many vehicles were involved.
- Does Evic only matter in single-vehicle accidents?
- No. The judgment is useful because it explains how the phrase “caused wholly or mostly by the fault of the person” should be read. The reasoning focuses on the injured person’s contribution to the accident, irrespective of the number of motor vehicles involved and how the person came to be injured.
- Why does this matter for weekly payments and treatment expenses?
- Because ss 3.11 and 3.28 can cut off weekly benefits and treatment/care benefits after the relevant period if the insurer says the accident was caused wholly or mostly by the injured person’s fault. Evic is important when that issue is disputed.
- If the insurer says I was mostly at fault, what should I do?
- Act quickly. Preserve the accident facts, gather any contemporaneous evidence, and review whether the insurer’s reasoning really supports a contributory-negligence finding. Internal review and the correct PIC pathway can matter.