CMB v QBE Insurance (Australia) Limited - [2025] NSWPIC 420

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420
CLAIMANT:	CMB
INSURER:	QBE Insurance (Australia) Limited
SENIOR MEMBER:	Susan McTegg
DATE OF DECISION:	19 August 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained injury when his vehicle veered off the road and collided with a telegraph pole which fell; claimant left the scene; claimant did not seek medical attention; Held – claimant’s evidence unreliable; claimant suffering from legal incapacity; claimant’s version of events not borne out by CCTV footage; evidence of witness two years after the accident as to unidentified vehicle exiting driveway causing claimant to swerve and lose control unreliable where witness conceded he was not sure what he saw and where not consistent with CCTV footage; claimant driving at excessive speed; as per AAI Limited t/as GIO v Evic claimant failed to take reasonable care in not controlling speed and direction of his vehicle; claimant not wholly at fault where no finding of 100% contributory negligence but contributory negligence greater than 61%; claimant mostly at fault.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.36 of the Motor Accident Injuries Act 2017* (the MAI Act)** The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s costs. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
[CMB] (the claimant) was driving a vehicle owned by Ms Abigail Legat on 23 August 2022 when he was involved in a motor vehicle accident and sustained injury (the accident).
On 30 January 2025 Ms Mary Chebat Legat was appointed as the appointed representative of the claimant, a person under legal incapacity.
QBE Insurance Australia Limited (the insurer) as agent for the Nominal Defendant is the relevant insurer liable to pay statutory benefits to the claimant under the MAI Act.
The claimant completed an Application for Personal Injury Benefits on 18 April 2024.
On 26 July 2024 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis [CMB] was wholly at fault for the accident. It was also alleged the claimant had sustained a threshold injury.
The claimant sought an internal review of that decision and on 15 August 2024 the insurer determined the claimant was wholly or mostly at fault for the accident.
The claimant lodged an application in the Personal Injury Commission (Commission) on
22 May 2025 as to whether for the purposes of ss 3.11…

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 CMB v QBE Insurance (Australia) Limited

Details

AGLC: CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420
Case: [2025] NSWPIC 420
Decision Date: 19 August 2025

CaseChat Overview and Summary

CMB sought compensation under the Motor Accident Injuries Act 2017 for injuries sustained in a motor accident. The defendant, QBE Insurance (Australia) Limited, contested the claim on the grounds that CMB was mostly at fault and that his version of events was not credible. The case was heard in the Court of Appeal. The primary issues were whether CMB was wholly or mostly at fault for the accident and whether his evidence was reliable, given his legal incapacity and the inconsistencies with available CCTV footage.

The court found CMB's evidence unreliable, noting that he was suffering from legal incapacity and his account of events was not supported by the CCTV footage. The footage did not show the presence of another vehicle causing CMB to swerve, as claimed by a witness who provided evidence two years after the accident. The witness admitted uncertainty about what he saw and his account was inconsistent with the CCTV footage. The court also found that CMB was driving at an excessive speed, which contributed significantly to the accident. As per the case of AAI Limited t/as GIO v Evic, CMB failed to take reasonable care in controlling the speed and direction of his vehicle. While the court did not find CMB 100% at fault, his contributory negligence was greater than 61%.

The court determined that CMB was mostly at fault for the accident. The claimant's version of events was not borne out by the evidence and the CCTV footage, and his excessive speed played a significant role in the accident. The court found that CMB was not wholly at fault, as there was no finding of 100% contributory negligence, but his negligence was substantial. The appeal was dismissed, and the claimant was not entitled to compensation under the Motor Accident Injuries Act 2017.

Orders