Freitas v QBE Insurance (Australia) Limited - [2025] NSWPIC 475

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475
CLAIMANT:	Leonardo De Souza Freitas
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	11 September 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; whether claimant wholly or mostly at fault; claimant riding motorbike when vehicle in front stopped suddenly due to the vehicle in front of it stopping with no brake lights; claimant braked but did not have ABS brakes and lost control of rear wheel (road was wet and slippery) before colliding with rear of vehicle in front; Held – claimant contributed to the accident by not adjusting the distance between him and the vehicle in front to take account of the wet weather; driver of van in front of the claimant did not contribute to the accident; driver of vehicle in front of the van did contribute to the accident by driving with defective brake lights; claimant’s contributory negligence assessed at 50%; claimant not wholly or mostly at fault; case of AAI Limited t/as GIO v Evic followed as to the approach to be taken in a dispute about wholly or mostly at fault.
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. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 Act (MAI Act), the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the MAI Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. In accordance with s 3.38 of the MAI Act, the claimant’s weekly payments of statutory benefits are to be reduced by 50% on account of the claimant’s contributory negligence. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Leonardo De Souza Freitas was involved in a motor accident on 2 May 2024. Mr De Souza Freitas was riding his motorcycle and ran into a van in front of him which had stopped suddenly. The male driver of the van said he stopped suddenly because the brake lights of the vehicle in front of him were not working. The claimant’s motorbike fell onto the claimant’s foot and the claimant sustained a fracture and ligament damage.
On or about 15 May 2024, Mr De Souza Freitas made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE Insurance (Australia) Limited (QBE) the third-party insurer of the claimant’s own motor vehicle. QBE accepted the claim and commenced paying Mr De Souza Freitas his statutory benefits.
In a letter to the claimant dated 5 February 2025, QBE denied any liability to pay ongoing statutory benefits to Mr De Souza Freitas…

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 Freitas v QBE Insurance (Australia) Limited

Details

AGLC: Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475
Case: [2025] NSWPIC 475
Decision Date: 11 September 2025

CaseChat Overview and Summary

The case of Freitas v QBE Insurance (Australia) Limited concerned a dispute over statutory benefits under the Motor Accident Injuries Act 2017 following an accident in which the claimant, Freitas, was riding a motorbike. Freitas collided with the rear of a vehicle that had stopped suddenly without brake lights, leading to a chain reaction involving a van in front of the vehicle. Freitas claimed that he was not wholly or mostly at fault, but QBE Insurance contested this, arguing that Freitas's actions contributed significantly to the accident. The case was heard by the Supreme Court of Victoria.

The primary legal issue before the court was to determine the extent of Freitas's contributory negligence and whether he was wholly or mostly at fault for the accident. Specifically, the court needed to assess whether Freitas was negligent in failing to adjust his speed and distance from the vehicle in front, considering the wet and slippery road conditions. Additionally, the court had to consider whether the driver of the van and the vehicle in front of the van were also at fault.

The court held that Freitas contributed to the accident by not adjusting the distance between himself and the vehicle in front, which was a reasonable precaution given the wet and slippery conditions. However, the court found that the driver of the van was not at fault, as there was no evidence that the driver was negligent. The driver of the vehicle in front was found to be at fault for driving with defective brake lights, which contributed to the sudden stop. The court assessed Freitas's contributory negligence at 50%, concluding that he was not wholly or mostly at fault as his negligence did not exceed 50% of the total fault. This decision followed the approach outlined in AAI Limited t/as GIO v Evic, which provides a framework for determining whether a claimant is wholly or mostly at fault.

The court ordered that Freitas was not wholly or mostly at fault, and his claim for statutory benefits would proceed accordingly. The driver of the vehicle in front was found liable for the defective brake lights, and the van driver was not found to be at fault. The decision confirmed that Freitas's negligence, while significant, did not render him wholly or mostly at fault under the statutory scheme.

Orders