Bao v QBE Insurance (Australia) Limited - [2022] NSWPIC 434

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bao v QBE Insurance (Australia) Limited [2022] NSWPIC 434
CLAIMANT:	Ming Gang Bao
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Anthony Scarcella
DATE OF DECISION:	3 August 2022
CATCHWORDS:	MOTOR ACCIDENTS - Assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act2017; non-economic loss, past and future loss of earnings assessed; claimant’s credit in issue; Morvatjou v Mordadkhani; Medlin v State Government Insurance Commission; Husher v Husher; Graham v Baker; Kallouf v Middis; Penrith City Council v Parks considered and applied; Held — claimant’s damages are to be reduced by 30% on account of his contributory negligence.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. On the issue of contributory negligence, the claimant’s damages are to be reduced by 30% on account of the claimant’s contributory negligence. 2. The amount of damages for the claim is $224,000. 3. The amount of the claimant’s costs in the matter is $39,410.83 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under section 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 4 May 2018. The Application was lodged with the Personal Injury Commission (the Commission) on 28 April 2021.
The claimant, Mr Ming Gang Bao, is a 58 year old man, who was involved in a motor accident on 4 May 2018 (the motor accident) in which he suffered injuries.
On 2 April 2020, Mr Bao made an application for damages under common law for the personal injuries he sustained in the motor accident against QBE Insurance (Australia) Limited (QBE), being the compulsory third-party insurer of the vehicle at fault.[1]
[1] Bao’s documents at pages 20-22.
On 12 November 2020, QBE admitted liability, including an admission of breach of duty of care and alleged 30% contributory negligence on the part of Mr Bao.[2]
[2] Bao’s documents at pages 30-32.
At the teleconference on 24 January 2022, Mr Bao advised that he accepted that a reduction of his damages on account of contributory negligence in the sum of 30% was appropriate. The matter was set down for an audio-visual assessment conference on 11 April 2022. Ms Elizabeth Welsh of counsel appeared for Mr Bao, instructed by Mr Guy Tse, solicitor. Mr Brendan Jones of counsel appeared for QBE, instructed by Mr Timothy Ceballos, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)    the nature and extent of Mr Bao’s injuries;
(b)    the quantum of Mr Bao’s damages for non-economic loss;
(c)    the quantum of Mr Bao’s damages for past loss of earnings or past loss of earning capacity, and
(d)    the quantum of Mr Bao’s damages for future loss of earnings or future loss of earning capacity.
QBE requested that I issue my decision in draft.
The…

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.

Continue reading Bao v QBE Insurance (Australia) Limited

Details

AGLC: Bao v QBE Insurance (Australia) Limited [2022] NSWPIC 434
Case: [2022] NSWPIC 434
Decision Date: 3 August 2022

CaseChat Overview and Summary

The case of Bao v QBE Insurance (Australia) Limited involved an assessment of a claim for damages under Division 7.6 of the Motor Accident Injuries Act 2017, following a motor accident. The primary issues before the court were the assessment of non-economic loss, past and future loss of earnings, and the claimant's credit in the context of contributory negligence. The court was required to determine the appropriate level of compensation for the claimant, taking into account the statutory guidelines and relevant case law.

The court examined the statutory framework provided by the Motor Accident Injuries Act 2017 and considered the relevant case law, including Morvatjou v Mordadkhani, Medlin v State Government Insurance Commission, Husher v Husher, Graham v Baker, and Kallouf v Middis. The court also referred to Penrith City Council v Parks to understand the principles of contributory negligence and its impact on the assessment of damages. The primary focus was on the claimant's contributory negligence, which was argued to be 30%. The court had to decide whether and how this percentage should reduce the claimant’s damages.

The court concluded that the claimant's damages should indeed be reduced by 30% due to contributory negligence. The decision was based on the statutory provisions of the Motor Accident Injuries Act 2017 and the precedent set by the cases cited. The court found that the claimant’s actions contributed significantly to the accident, warranting a reduction in the compensation awarded. The final orders of the court reflected this determination, with the claimant’s damages being reduced accordingly.

Orders