The recent decision of Inthaphala v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 541 decided by the Personal Injury Commission (“Commission”) highlights the issue of contributory negligence in CTP personal injury damages claims. Mr Inthaphala was a front seat passenger in a vehicle that crashed while being driven by someone he knew had consumed alcohol. Ultimately, the Commission reduced Inthaphala’s damages by 33% (one-third) on account of his contributory negligence as he was “the person with control of the car and its keys” and handed them to the driver at fault after he had been eating and drinking with the driver and consuming shots at a restaurant.
However, the Commission showed some leniency to Inthaphala as had pleaded with the driver at fault to slow down when he was speeding and found the culpability of the driver at fault to be greater as “he was not being forced to drive or forced to drive the way that he did” and “he could have refused to drive and could have suggested they leave the car and return to collect it later.”
The Commission assessed Inthaphala’s damages for past and future loss of earnings including superannuation as $124,035.50 – $40,931.55 being the reduction for contributory negligence at 33% totalling $83,103.78 and allowed $27,265.92 costs inclusive of GST. As Inthaphala did not exceed the 10% permanent impairment threshold he was not entitled to claim non-economic loss.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWPIC/2021/541.html
