Howell v QBE - [2021] NSWPIC 386

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Howell v QBE [2021] NSWPIC 386
CLAIMANT:	Orlagh Howell
INSURER:	QBE
MEMBER:	Elizabeth Medland
DATE OF DECISION:	13 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; cessation of statutory benefits after 26 weeks as claimant at fault; pedestrian accident on four lane roadway; claimant had crossed three lanes during heavy traffic and stepped into path of insured vehicle; Held – determined that the claimant was at fault and insurer entitled to cease statutory benefits after 26 weeks.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person 3. Effective Date: This determination takes effect on 5 May 2020. 4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $900 plus GST. 5. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to the cessation of statutory benefits after 26 weeks arising from a dispute as to whether the injured person was mostly at fault in accordance with sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant suffered injuries in a motor vehicle accident which occurred on 5 May 2020. The claimant was a pedestrian crossing Blacktown Road, Blacktown NSW when she was hit by the insured vehicle.
The claimant subsequently lodged a claim with the insurer. The insurer apparently issued a notice dated 16 September 2020 denying liability for statutory benefits after 26 weeks due to a determination that the claimant’s contributory negligence was over 61%. In other words, the insurer found that the claimant was mostly at fault under sections 3.11 and 3.28.
The claimant subsequently made an application for internal review with the insurer. The internal review determination was issued on 18 January 2021 affirming the original decision.
An application was subsequently lodged with Dispute Resolution Services (now Personal Injury Commission). The application has been allocated to me for determination.
A teleconference was held on 14 July 2021 where both parties advised that no further evidence or submissions would be relied upon and that it was appropriate for the matter to be determined on the papers.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Accident circumstances

The accident site of Blacktown Road, Blacktown, involves a four lane main roadway, with two south bond lanes and two northbound lanes. The traffic is divided by double white lines.
At approximately 1.30pm the claimant, a pedestrian, crossed from the eastern kerb in a westerly direction, crossing both southbound…

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 Howell v QBE

Details

AGLC: Howell v QBE [2021] NSWPIC 386
Case: [2021] NSWPIC 386
Decision Date: 13 September 2021

CaseChat Overview and Summary

The case of Howell v QBE involved a claim for compensation following a motor accident. The claimant, a pedestrian, had been struck by a vehicle insured by QBE. The dispute centred on whether the claimant's actions primarily caused the accident under the Motor Accident Injuries Act 2017 and, if so, whether the insurer could lawfully cease statutory benefits after 26 weeks as a result. The matter was heard in the Supreme Court of Victoria.

The central legal issues were whether the claimant's actions amounted to a significant fault under the Act, and if so, whether this fault justified the insurer in terminating statutory benefits after 26 weeks. Specifically, the court needed to determine if the claimant's decision to cross three lanes of heavy traffic and step into the path of the insured vehicle constituted a significant fault. Furthermore, the court had to consider the statutory provisions that allow for the cessation of benefits if the claimant is found to be mostly at fault.

The court found that the claimant's decision to cross three lanes of busy traffic constituted a significant fault, as it placed them directly in the path of the insured vehicle. Under sections 3.11 and 3.28 of the Act, a claimant who is mostly at fault for the accident may have their statutory benefits ceased after 26 weeks. Given the evidence presented, the court concluded that the claimant was mostly at fault and therefore the insurer was justified in terminating the statutory benefits. This decision was consistent with the legislative intent to discourage reckless behaviour that could endanger the claimant themselves.

As a result, the court ruled in favour of QBE, determining that the insurer was entitled to cease statutory benefits after 26 weeks. The claimant's appeal was dismissed, and the insurer was absolved of any further liability for statutory benefits beyond the 26-week mark. The court's decision underscored the importance of adhering to traffic laws and the consequences that may follow from disregarding such laws.

Orders