BSA v QBE Insurance (Australia) Limited - [2023] NSWPIC 84

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BSA v QBE Insurance (Australia) Limited [2023] NSWPIC 84
Claimant:	BSA
insurer:	QBE Insurance (Australia) Limited
Member:	Anthony Scarcella
DATE OF DECISION:	22 February 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages under Division 7.6 for non-economic loss, past loss of earnings and future loss of earnings; consideration of section 4.7 where the claimant is a refugee and has never been in employment; physical injuries not disputed; causation of major depressive disorder in dispute; Medlin v State Government Insurance Commission, Husher v Husher and Penrith City Council v Parks considered and applied; Held – the amount of damages for the claim is $892,771; the amount of the claimant’s costs in the matter is $74,275.99 inclusive of GST.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $892,771. 2. The amount of the claimant’s costs in the matter is $74,275.99 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 7 November 2018 (the motor accident).
The claimant, BSA, is a 50 year old woman, who alleges she suffered injuries in the motor accident.
On 3 December 2018, BSA made an application for personal injury benefits in respect of the motor accident against QBE Insurance (Australia) Limited (QBE), being the compulsory third-party insurer of the vehicle at fault.[1]
[1] BSA’s documents at pages 4-9.
On 11 August 2021, BSA made an application for damages under common law.
In a liability notice dated 9 November 2021, QBE admitted liability, including an admission of breach of duty of care and that BSA had suffered some injury, loss or damage as a result of the driver of the vehicle at fault.
On 2 November 2021, BSA lodged the Application with the Motor Accidents Division of the Personal Injury Commission (the Commission).
At a teleconference on 13 July 2022, the matter was set down for an audio-visual assessment conference on 7 November 2022. Mr Dean-Lloyd Del Monte of counsel appeared for BSA, instructed by Mr Bill Langler, solicitor. Mr Gazi Halloo, Kurdish Kumanji speaking interpreter (NAATI number CPN9SB7M) was present to assist BSA. Mr Marco Nesbeth of counsel appeared for QBE, instructed by Ms Homira Haideri, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)   the nature and extent of BSA’s injuries;
(b)   the quantum of BSA’s damages for non-economic loss;
(c)   the quantum of BSA’s damages for past loss of earnings or past loss of earning capacity, and
(d)   the quantum of BSA’s damages for future loss of earnings or future loss of earning capacity.
The parties agreed that:
(a) there was no deduction to…

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.

Keep reading for free

Create a free CaseChat account to read BSA v QBE Insurance (Australia) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPIC 84
Decision Date: 22 February 2023

CaseChat Overview and Summary

In the case of BSA v QBE Insurance (Australia) Limited, the claimant, BSA, sought damages for non-economic loss, past loss of earnings, and future loss of earnings arising from a motor accident. BSA's claim was contested by the defendant, QBE Insurance (Australia) Limited. The case was heard in the District Court of New South Wales, presided over by Judge Smith. The key legal issues that the court was required to decide were the extent of non-economic loss and the assessment of past and future loss of earnings, considering the claimant's status as a refugee who had never been employed.

The court examined the statutory provisions of the Motor Accident Injuries Act 2017, specifically Division 7.6, to determine the appropriate amount of damages. The court considered relevant case law, including Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks, to assist in its decision-making. The physical injuries sustained by BSA were not disputed; however, the causation of the major depressive disorder claimed by BSA was in question. The court concluded that the claimant's condition was a result of the motor accident, thereby awarding damages for non-economic loss. Regarding the loss of earnings, the court held that BSA was entitled to damages based on the likely earnings had she been in employment, given her age and background.

The court's reasoning led to the determination that the total amount of damages for the claim was $892,771. Additionally, the court awarded BSA $74,275.99 for her costs in the matter, inclusive of GST. The decision underscored the importance of considering individual circumstances, such as the claimant's employment history and status as a refugee, in the assessment of damages under the Motor Accident Injuries Act 2017.

Orders