Cooper v QBE Insurance (Australia) Limited - [2022] NSWPIC 731

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cooper v QBE Insurance (Australia) Limited [2022] NSWPIC 731
Claimant:	Andrew Cooper
insurer:	QBE Insurance (Australia) Limited
Member:	Belinda Cassidy
DATE OF DECISION:	19 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim application by claimant for determination that claimant is not wholly or mostly at fault; insurer conceded fault on the part of insured; amended allegation of contributory negligence from 70% to 50% and claimant conceded there was contributory negligence but not greater than 25%; claimant riding pushbike along main road in Kempsey when a collision occurred with the insured’s vehicle coming out of a KFC driveway; claimant alleged insured speeding; claimant made late allegation he was riding on foot path not the road; issue of visibility of insured by claimant and claimant by insured; no expert evidence and parties’ request to determine on the papers; Held – no independent or expert evidence of insured’s speed; member not satisfied claimant riding on road; Member not satisfied either claimant or insurer had a view of each other due to the presence of a parked truck and hedges obscuring their vision; claimant was riding on the road against the flow of traffic; claimant’s contributory negligence assessed at 50%; claim for costs of three miscellaneous claims assessment matters; costs allowed in each matter but not at the maximum amount for the two abandoned disputes.
determinations made:	CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. Pursuant to s 3.38 of the Act, the claimant’s weekly payments of statutory benefits payable in respect of the subject accident are to be reduced by 50% on account of the claimant’s contributory negligence. 2. The amount of the claimant’s costs in the matter is assessed at $4,180 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Andrew Cooper was involved in a car accident on 10 March 2022. Mr Cooper was riding his bicycle along Smith Street at Kempsey when he was hit by a four-wheel drive utility coming out of a KFC business[1].
[1] The insured driver, Mr Wynan had purchased and collected food from the business at their drive through service. Reference in these reasons to the driveway is a reference to the drive through area which then crosses the footpath and leads to Smith Street.
Mr Cooper is 30 years of age and sustained significant injuries including a broken femur, fractured knee, bruises and he suffers from pain in his lower back.
On or about 25 March 2022, Mr Cooper made a claim for statutory benefits against QBE, the compulsory third-party (CTP) insurer of the vehicle that hit him and which he says caused the accident and his injuries.
QBE accepted the claim and paid Mr Cooper statutory benefits for the first 26 weeks after the accident however on 14 June 2022 QBE wrote to Mr Cooper denying his entitlement to any ongoing benefits on the basis he was…

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 Cooper v QBE Insurance (Australia) Limited

Details

AGLC: Cooper v QBE Insurance (Australia) Limited [2022] NSWPIC 731
Case: [2022] NSWPIC 731
Decision Date: 19 December 2022

CaseChat Overview and Summary

The case of Cooper v QBE Insurance (Australia) Limited involved a claimant seeking statutory benefits under the Motor Accident Injuries Act 2017. The claimant had collided with a vehicle driven by the insured while riding a pushbike along a main road in Kempsey. The dispute centred on the determination of fault, the visibility between the parties, and the degree of contributory negligence on the part of the claimant. The claimant contended that the insured was speeding and had not seen him, while the insured's insurer conceded some degree of fault.

The court was tasked with determining the degree of fault attributable to both parties and the visibility at the time of the accident. The claimant initially alleged that he was riding on the footpath and not on the road, a claim he later amended to admit that he was on the road but not exceeding 25% contributory negligence. The insurer initially attributed 70% fault to the claimant but later reduced this to 50%. The court had to assess these allegations based on the available evidence and submissions from both parties. Notably, there was no expert evidence regarding the speed of the insured's vehicle, and the parties had requested that the court decide the matter on the basis of the written submissions and documents provided.

The court concluded that there was insufficient evidence to determine the speed of the insured's vehicle and was not satisfied that the claimant was riding on the road. The court also found that neither party had a clear view of the other due to the presence of a parked truck and hedges that obscured their vision. Consequently, the court found the claimant to be 50% contributory negligent. The claimant's application for costs in relation to three miscellaneous claims assessment matters was partially successful, with costs awarded in each matter but not at the maximum amount for the two disputes that were abandoned.

Orders