BHD v QBE Insurance (Australia) Limited - [2022] NSWPICMR 73

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
Citation:	BHD v QBE Insurance (Australia) Limited [2022] NSWPICMR 73
ClaimanT:	BHD
Insurer:	QBE Insurance (Australia) Limited
Merit Reviewer:	Katherine Ruschen
DATE OF DECISION:	16 December 2022
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; dispute about payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017; whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (2002 Act) (as applied by section 3.39 of the Motor Accident Injuries Act 2017; limitation on statutory benefits in relation to certain mental harm); section 30 of the 2002 Act; meaning of close member of the family of the victim; meaning of being put in peril; Held – the reviewable decision is affirmed.
Determinations made:	CERTIFICATE OF DETERMINATION Issued under s 7.13(4) of the Motor Accident Injuries Act2017 The reviewable decision is about whether the insurer is entitled to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002 (as applied by s 3.39 of the Motor Accident Injuries Act 2017 (the MAI Act) (Limitation on statutory benefits in relation to certain mental harm)) and is therefore a merit review matter under Schedule 2(1)(t) of the MAI Act. 1. The reviewable decision is affirmed. 2. The claimant is entitled to regulated costs up to a maximum of 16 monetary units.

STATEMENT OF REASONS

introduction

A dispute has arisen between BHD (the claimant) and the insurer about the claimant’s entitlement to payment of weekly benefits under Division 3.3 of the MAI Act.
The claimant’s grandson, BKE(the victim), was injured in a motor accident at approximately 7.50pm on 1 February 2020.
The claimant made a claim for statutory benefits under the MAI Act arising from pure mental harm suffered by the claimant in connection with the victim’s motor accident.
On 10 June 2022 the insurer determined the claimant was not entitled to statutory benefits as he was not a person who is eligible to bring a claim for pure mental harm under s 30 of the Civil Liability Act 2002 (the CLA).
The claimant requested an internal review of the insurer’s decision dated 10 June 2022.
On 20 July 2022 the insurer issued their internal review decision which affirmed the insurer’s original decision that the claimant was not a person who is eligible to bring a claim for pure mental harm under s 30 of the CLA.
The claimant seeks a merit review of the insurer’s internal review decision dated 20 July 2022.

SUBMISSIONS

The claimant submits:
(a) he is an eligible person under s 30 of the CLA on the basis he is either a close member of the family of the victim and/or he witnessed, at the scene, the victim being put in peril;
(b) he meets the definition of “close member of the family” of the victim under s 30 on the basis he is the grandfather and has “parental responsibility” for the victim,…

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 BHD v QBE Insurance (Australia) Limited

Details

AGLC: BHD v QBE Insurance (Australia) Limited [2022] NSWPICMR 73
Case: [2022] NSWPICMR 73
Decision Date: 16 December 2022

CaseChat Overview and Summary

The applicant, BHD, sought a review of a decision by QBE Insurance (Australia) Limited to refuse payment of weekly benefits under Division 3.3 of the Motor Accident Injuries Act 2017. The dispute centred on the insurer's entitlement to refuse payment of statutory benefits in accordance with Part 3 of the Civil Liability Act 2002, as applied by section 3.39 of the Motor Accident Injuries Act 2017, specifically regarding the limitation on statutory benefits in relation to certain mental harm. The applicant argued that the insurer had incorrectly determined that a family member was not entitled to statutory benefits.

The key legal issue was the interpretation of the term "close member of the family" as defined in section 30 of the Civil Liability Act 2002, and the phrase "being put in peril" in the context of the statutory benefits limitation. The court had to decide whether the family member, who witnessed the accident but was not physically in the vehicle, could be considered as having been "put in peril" by the accident, thereby qualifying for statutory benefits.

The court affirmed the reviewable decision, finding that the family member did not qualify as a close member of the family under the Civil Liability Act 2002. The court held that the family member, although a close relative of the victim, was not in the same vehicle and thus did not meet the definition of being "put in peril" by the accident. The court concluded that the insurer was justified in refusing payment of the statutory benefits to the family member.

The final orders of the court affirmed the decision of QBE Insurance (Australia) Limited and dismissed the application for review. The court found that the insurer's interpretation of the statutory provisions was correct, and the family member did not meet the criteria for receiving statutory benefits.

Orders