AAH v QBE Insurance (Australia) Ltd - [2021] NSWPIC 58

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAH v QBE Insurance (Australia) Ltd [2021] NSWPIC 58
APPLICANT:	AAH
RESPONDENT:	QBE Insurance (Australia) Ltd
MEMBER:	Mr Anthony Scarcella
DATE OF DECISION:	29 March 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the applicant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of benefits incurred more than 26 weeks as applicant was mostly at fault; collision reconstruction report; applicant crossed two of three lanes of the roadway and was struck in the third lane; pushing a large red electric bicycle; insured driver being unable to take evasive action; applicant failed to use an available pedestrian crossing; placed herself in a position of peril; insurer alleged 70% contributory negligence; did not see the insured driver’s vehicle prior to the accident; COPS event report; factual investigation report; apportionment of culpability; the driver should take greater care for the pedestrian and the pedestrian should take greater care for their own safety; Held- applicant’s evidence is inconsistent; applicant’s contribution to the motor accident significantly outweighed the insured driver’s contribution; motor accident caused mostly by the fault of the applicant; recovery of legal costs; exceptional circumstances not satisfied; applicant entitled to the payment of legal costs at the regulated maximum in each dispute.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017, the motor accident was caused mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017, the motor accident was caused mostly by the fault of the claimant. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,652 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

BACKGROUND

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, Clause 3 (d) and (e) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether the injured person was mostly at fault.
At about 6.40 am on 4 November 2019, the Claimant was crossing a public road when she was struck by a motor vehicle insured by the Insurer and driven by MQ (the Insured Driver).
On 14 November 2019, the Claimant lodged an application for personal injury benefits.
The Claimant received statutory benefits in the form of weekly payments and treatment and care expenses in the 26-week period following the motor accident until 2 June 2020 and 5 May 2020 respectively.
On 5 May 2020, the Insurer notified the Claimant that it had decided that the claimant was mostly at fault in the subject motor accident.
On 1 June 2020, the Claimant made an application for an internal review of the Insurer’s decision.
On 23 June 2020, the Insurer conducted an internal review and issued a Certificate of Determination purportedly confirming its original decision by deciding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 58
Decision Date: 29 March 2021

CaseChat Overview and Summary

In the matter of AAH v QBE Insurance (Australia) Ltd, the dispute arose from a motor accident involving the applicant, AAH, and the insured driver, represented by the respondent QBE Insurance. The crux of the matter was whether the accident was predominantly caused by the fault of AAH, and if so, whether this fault led to the cessation of benefits due to the application of sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. The matter was heard in the relevant court, which was required to determine the extent of contributory negligence and its implications on the recovery of benefits.

The court needed to assess the apportionment of fault between AAH and the insured driver. AAH had crossed two of the three lanes of the roadway and was struck in the third lane while pushing a large red electric bicycle. The collision reconstruction report indicated that the insured driver was unable to take evasive action due to the circumstances. The applicant's failure to use an available pedestrian crossing and her placement in a position of peril were significant factors considered by the court. QBE Insurance alleged that AAH bore 70% of the contributory negligence, asserting she did not see the insured driver's vehicle before the accident.

After evaluating the evidence, including the collision reconstruction report, the COPS event report, and the factual investigation report, the court found that AAH's evidence was inconsistent and her contribution to the accident significantly outweighed that of the insured driver. The court held that the motor accident was mostly caused by AAH's fault. Consequently, AAH was not entitled to the recovery of benefits as the cessation of benefits applied. The court also ruled on the recovery of legal costs, determining that exceptional circumstances were not satisfied, and AAH was entitled to the payment of legal costs at the regulated maximum in each dispute.

Orders