Hennessy v QBE Insurance (Australia) Limited
[2025] NSWPIC 505
•24 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Hennessy v QBE Insurance (Australia) Limited [2025] NSWPIC 505 |
| CLAIMANT: | Judyth Hennessy |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 24 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims dispute; whether the claimant is mostly or wholly at fault pursuant to sections 3.11 and 3.28; claimant a pedestrian that was struck by an unidentified vehicle; claimant intending to cross the roadway (standing between two cars); the vehicle passed and the claimant was struck with the rear portion of the vehicle; Held – claimant mostly at fault; most likely on the evidence that the claimant stepped into the vehicle as it passed. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s (Commission) assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $1,992 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
Ms Judyth Hennessy (the claimant) is a 32-year-old male who on 20 October 2024 suffered injury as a result of a motor vehicle accident. The claimant was a pedestrian on High Street, Penrith, when she was struck by a vehicle.
A miscellaneous claims dispute has arisen between the parties as to whether the claimant was wholly or mostly at fault for the accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act2017 (MAI Act). In addition, a dispute exists as to contributory negligence pursuant to s 3.38 of the MAI Act.
The claimant lodged an Application for Personal Injury Benefits (claim form) on or about
24 October 2025 with QBE Insurance (Australia) Limited (the insurer), the compulsory third party insurer of the vehicle the claimant considers at fault.
Liability for ongoing payments of statutory benefits beyond 52 weeks was denied on or about 17 April 2025 on the basis that the claimant was considered as being mostly at fault for the accident. The insurer considered the claimant to be 80% contributorily negligent.
An internal review was requested, and the insurer decided that the claimant was mostly at fault for the accident.
An application was subsequently lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute. The matter has been allocated to me as a Member of the Commission.
I held a preliminary conference with the parties on 21 July 2025. The parties agreed the matter was ready to proceed to assessment. The claimant requested an assessment conference occur. The insurer did not object but queried the utility of a conference noting the claimant has provided statement evidence and the identity of the insured driver is not known.
An assessment conference was arranged to occur on 12 August 2025. However, by message sent via the Commission portal on 8 August 2025, the claimant’s representatives requested that the matter be determined on the papers. This was consented to by the insurer by way of message received on 11 August 2025. The assessment conference was therefore vacated.
The assessment has been completed by me on the papers.
DOCUMENTS CONSIDERED
I have considered the documents provided in the application and the reply. No additional late material has been shared with me.
Not every documented has been referred to within these reasons, however, the assessment has been made in the context of all material having been considered.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if:
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b)the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in s 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
Section 3.38 of the MAI Act provides that weekly statutory benefits after 12 months are to be reduced on account of contributory negligence. In addition, the section provides that the common law and the enacted law as to contributory negligence that applies to an award of damages applies to weekly payments of statutory benefits.
Pursuant to Schedule 2, cl (3)(d), (e) and (g) of the MAI Act, disputes relating to ss 3.11, 3.28 and 3.38 are declared as miscellaneous claims assessment matters for the purposes of
Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
SUMMARY OF EVIDENCE
Application for personal injury benefits (claim form) dated 24 October 2024
The claimant includes the following version of events in her claim form:
“I came out of the chemist warehouse, walked to the right a little then stood in between 2 parked cars waiting to cross the road to my car. I was standing at a safe distance away from the road. I moved forward slightly waiting for this big black SUV to pass & all I remember is the impact of my chest being hit, knocked off my feet & landing heavily on the ground. I remember the car being very close as it was driving towards where I was standing, the parked cars. Don’t know if it was pulling into an empty spot up a bit on the left.”
NSW Police report dated 21 October 2024
The police did not attend the scene of the accident. From information gleaned in the below summarised factual investigation report, the accident was reported by the claimant’s son the day after the accident. The crash summary details are as follows:
“About 12:20pm on Sunday the 20th of October 2024, the Pedestrian was struck by a vehicle travelling Westbound on High Street, Penrith as she was crossing the road. The Pedestrian was conveyed to Nepean Hospital sometime later for treatment.”
Nepean Hospital discharge summary
A progress note includes the following relevant history:
“65 yr old F presented with hx of MVA
pedestrian vs van
reports has standing on the footpath and about to cross the road
saw the van coming about 30KMS and then may be stepped on the road bot to quickly and walked into the back of the van
fell on the left side
remember the events
nil head injury
….”
Factual investigation report – Quantumcorp dated 17 January 2025
This investigation occurred at the request of the claimant. The investigators apparently canvassed the location for witnesses and/or CCTV footage with such efforts not proving fruitful.
Photographs of the accident site are included in the report as are aerial satellite images. The summary from the investigators is useful in understanding the relevant roadway configuration:
“High Street in Penrith NSW travels in an east to west direction. It has one lane of traffic travelling each way as well as parking lane on each side of the street in the area where the accident was reported to have occurred.
There is a pedestrian crossing that is located directly outside the Chemist Warehouse Store. This crossing travels from north to south and is measured to be 7.0 metres across the road and 5.0 metres in width. The collision occurred approximately 10 metres west of the crossing.
The area is located in the central shopping and business district of Penrith and is surrounded by small shops and business operations.”
The aerial photograph marks the collision spot as around three car lengths from the pedestrian crossing.
Whilst the driver of the vehicle stopped to offer assistance to the claimant, details were not exchanged and the identity of the driver, or the registration details of the vehicle are not known.
The investigators took a statement from the claimant via telephone interview on
2 December 2024. The claimant has signed the statement.Within the statement the claimant confirms that she was walking alone and walking from Chemist Warehouse in High Street to her car which was parked on the opposite side of the street. From paragraph 19 of her statement the claimant recalls the circumstances of the accident:
“I parked in High Street. This is one of the main streets of Penrith. There is one lane travelling each way with parking on either side of the street. I believe that this is also restricted parking to something like thirty or sixty minutes.
This area of High Street is surrounded by various shops and small business operations. The traffic was light, but the parking was relatively full on this day. The road is flat and straight and there is a walkway on either side of the street.
I managed to get a parking space on the opposite side of the street to the Chemist Warehouse, but about two to four cares from the entrance to the Chemist. The cars are parked in a straight light (sic) with one being parked behind the other.
I got out of my car and then got my handbag out of the passenger’s side of my car. I then went between two cars and walked across High Street to the Chemist Warehouse. I then came out of the Chemist and went to my right.
I then walked over to between two parked cars, which were located on the opposite side of High Street to where my car was parked. I got to the curb (sic) and hesitated. I wanted to make sure the two cars that I walked between were not about to move out onto the road.
I then walked to where the driver’s side meets the road. I looked to my left and looked to my right. I saw two to three cars coming from my left and two cars from my right.
I waited for the cars on my left and was the (sic) waiting for the two cars on my right. The first car past me on the right and I was then waiting for the second car. As I was waiting for the second car, I don’t not know if I have moved my left foot forward or the car has come too close, but the car has hit me.
The left side rear passenger door has collided with my chest. This impact has then caused me to go down the left side of the car. The car has then stopped and the driver has got out and come over to ask if I was okay.
…”
The claimant describes the car as being a “big black four door SUV.” She notes that there was a pedestrian crossing nearby, however, it was in the opposite direction of where her car was situated across the road. She also describes the traffic at the time as being light.
SUBMISSIONS
Claimant’s submissions dated 18 June 2025
A significant portion of the submissions consist of a summary of the procedural history of the dispute. In terms of submissions that directly relate to the dispute for my determination, the following is submitted:
“…in the circumstances of this case that to have struck the claimant where she was standing between two parked cars on the side of High Street the driver must have been travelling outside his lane and too close to the parked cars and therefore was mainly responsible for the accident. Accordingly it is submitted the claimant is not wholly or mostly at fault and she should be entitled to receive benefits after 52 weeks.”
Insurer’s submissions dated 16 July 2025
The submissions refer to a request for police documentation. No further documentation has been provided and I note the insurer has indicated a desire for my determination to proceed.
The insurer notes that the photographic evidence confirms a pedestrian crossing situated directly opposite the Chemist Warehouse. The insurer submits that the claimant’s failure to utilise the available pedestrian crossing materially contributed to the accident occurring.
The claimant’s assertion that the insured must have been travelling outside his lane or too close to the parked vehicles, is referenced by the insurer in submitting that there was no apparent impact with the unidentified vehicle and the two parked vehicles the claimant was standing between. The insurer then submits:
“…had the claimant remained stationary between two parked cards then, in the absence of any collision between the passing unidentified vehicle and the parked vehicles, the only explanation for the claimant being struck about the passenger’s side door is that has stepped forward/walked into the side of the vehicle.”
The insurer submits that there is no evidence that the driver of the vehicle was at fault and that the suggestion that the driver must have been travelling outside its lane is simply not founded in the evidence. It is submitted that “the incident occurred solely as the result of the claimant walking/stepping into it.”
The insurer submits that when stepping out from between two parked vehicles with an oncoming black SUV approaching, the claimant has either failed to appreciate the presence of that vehicle or has misjudged or mistimed its passing resulting in her stepping out and walking into the collision with the side of the van.
FINDINGS AND REASONS
From the evidence before me it would appear uncontroversial that the claimant had exited the Chemist Warehouse retail outlet, with an intention to return to her vehicle parked on the opposite side of the roadway. That is, the claimant has exited the retail store and turned to her right and entered the roadway between two cars parked opposite her vehicle. The vehicles being around two to four vehicles from the Chemist Warehouse.
It is also established on the evidence that the roadway includes a marked “zebra” pedestrian crossing directly outside the Chemist Warehouse.
Whilst the claimant attempts to explain in her statement why she did not utilise the available pedestrian crossing, the explanation lacks logic. The explanation is that it was in the opposite direction of her vehicle.
Firstly, the photograph evidence before, that is not refuted, has the Chemist Warehouse directly in front of the pedestrian crossing, which would mean that there would be no need to travel in the opposite direction to her vehicle. In addition, from the evidence there would be no need to travel any further distance to her vehicle by utilising the pedestrian crossing.
From a distance perspective, the distance to the claimant’s vehicle by travelling the route chosen by the claimant, and the route that would make use of the pedestrian crossing is substantially the same.
However, from a safety perspective, there is a significant difference. It goes without saying, that crossing a roadway by making use of a marked and clearly visible “zebra” pedestrian crossing is a safer option that attempting to cross a roadway between parked cars where there is no pedestrian crossing.
For this reason, the fact that that claimant failed to utilise the pedestrian crossing that was quite literally in front of her has substantially contributed to the accident occurring.
From the evidence, I also find that the claimant has moved from her position between the parked cars and into the roadway and walking into the moving unidentified vehicle. I am satisfied of this fact, on the balance of probabilities, by the claimant’s own evidence as contained in her written statement. The claimant concedes that she did not know if she moved forward or the car came too close.
The claimant describes the collision occurring with the left rear passenger door of the vehicle. This, in my view, is significant. Logically, if the vehicle had been travelling too close or had veered over to the left it would be expected that the claimant would have been struck with the front portion of the vehicle. Furthermore, there is no evidence or even suggestion that there was a collision with the parked vehicles the claimant had been standing between. Logically, therefore, it follows that the claimant is most likely to have stepped from the parked vehicles into the roadway and into the passing motor vehicle.
These findings are also consistent with the noted version of events contained within the hospital records, that describes the claimant maybe stepping onto the road too quickly and colliding with the back of the vehicle.
In addition, the findings above are also consistent with the version contained within the claim form where she describes moving forward (albeit described as “slightly”) from between the parked cars.
Whilst the insurer within their submissions suggests the claimant providing differing versions of events, to my mind the claimant’s version of events has remained consistent. That is, she was situated between the parked cars and concedes that she may have moved forward and collided with the rear portion of the vehicle.
For the above reasons, I consider the claimant to be mostly at fault, for the purposes of
ss 3.11 and 3.28 of the MAI Act, by virtue of her being at least 62% contributorily negligent.
COSTS
The dispute before me is deemed to be a miscellaneous claims assessment matter. Accordingly, pursuant to cl 3(1) of Schedule 1 of the Motor Accident Injuries Regulation 2017 (Regulation), the maximum costs for legal services provided to a claimant or an insurer in respect of each dispute is 16 monetary units.
The value of a monetary unit is currently $124.53, meaning each dispute attracts maximum legal costs of $1,992 plus goods and services tax (GST).
I am not restricted from awarding costs on the basis that the claimant has not been successful. I consider that it was reasonable for the claimant to lodge an application seeking a determination of the dispute. I therefore award costs in the amount of $1,992 plus GST.
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