Karklins v QBE Insurance (Australia) Limited - [2023] NSWPICMR 47

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Karklins v QBE Insurance (Australia) Limited [2023] NSWPICMR 47
CLAIMANT:	Ivar Karklins
INSURER:	QBE (Insurance) Australia Limited
MERIT REVIEWER:	Terence O'Riain
DATE OF DECISION:	8 September 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); on the papers; correct and preferable; no fault accident; driver deemed at fault; insurer accepted liability for statutory benefits to continue after 26 weeks; catastrophic injuries; pending damages claim; under schedule 2(1)(b); statutory benefits; statutory weekly payments; section 3.12; maximum period for statutory benefits entitlement; section 5.4 no entitlement to recover damages where no fault accident; NSW Parliament intent; Minister’s speech; promote purpose of the Act. Held - NSW Parliament intention to set up statutory benefits scheme with time limits on benefits; limited to 104 weeks unless there is pending damages claim; MAI Act bars driver’s entitlement to damages in no fault accident; reviewable decision affirmed.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.13(4) of the Motor Accident Injuries Act 2017 1. The reviewable decision is about whether for the purposes of s 3.12 (Cessation of weekly payments to other injured persons after maximum weekly payments period) an injured person's injury is the subject of a pending claim for damages under Division 3.3 of the Motor Accident Injuries Act 2017 (the MAI Act)and is therefore a merit review matter under Schedule 2(1)(b) of the MAI Act. 2. The reviewable decision dated 21 July 2023 is affirmed.

REASONS

Background

On 1 August 2021, the claimant was injured in a motor vehicle accident (the accident).
The police statement shows the claimant told the police that he swerved to avoid two deer running across his path, and this was the reason he collided with a vehicle heading in the opposite direction. The insurer’s investigators canvassed the residents at the accident location and it was confirmed that deer are known to frequent that area.
The accident caused the claimant’s catastrophic injuries.
On 2 February 2022, the insurer issued a liability letter accepting liability for statutory benefits to continue past 26 weeks after the date of the accident.
There was no dispute as to whether the motor vehicle accident was by definition under s 5.1 of the Motor Accident Injuries Act 2017 (MAI Act) a “no fault motor accident”. Accordingly, Mr Karklin’s entitlement to weekly payment of statutory benefits would expire eventually under the time limit set in s 3.12.
On 23 May 2023, the claimant’s legal representative lodged an application for damages under common law.
On 26 May 2023, the insurer rejected the common law damages claim. The insurer manager provided the following reason:
“The claimant is the driver who is deemed to be at fault for the accident pursuant to Section 5.2(1) of the Motor Accident Injuries Act 2017.
Pursuant to Section 5.4 of the Motor Accident Injuries Act 2017 there is no entitlement to recover damages in respect of the death or injury to the driver of a motor vehicle if the motor accident concerned was caused by…

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.

Keep reading for free

Create a free CaseChat account to read Karklins v QBE Insurance (Australia) Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWPICMR 47
Decision Date: 8 September 2023

CaseChat Overview and Summary

Karklins, the claimant, was involved in a motor accident in New South Wales and subsequently sued QBE Insurance (Australia) Limited, the respondent, for damages. The case was heard and decided by the New South Wales Supreme Court. The central issue in this case was the interplay between statutory benefits under the Motor Accidents Injuries Act 2017 (MAI Act) and the potential for damages recovery, particularly in the context of a no-fault accident.

The court was required to determine whether the respondent's acceptance of liability for statutory benefits meant that the claimant could still claim damages for the accident, even though the claimant was deemed at fault. Specifically, the court had to interpret the provisions of the MAI Act, particularly section 5.4, which bars entitlement to recover damages in a no-fault accident, and section 3.12, which outlines the maximum period for statutory benefits entitlement. The claimant argued that the purpose of the MAI Act was to promote the speedy and efficient resolution of claims, and therefore, damages should be recoverable.

The court found that the NSW Parliament intended to establish a statutory benefits scheme with time limits on benefits, which was limited to 104 weeks unless there was a pending damages claim. The court held that the MAI Act barred the claimant's entitlement to damages in a no-fault accident. The court also noted that the Minister's speech emphasized the purpose of the Act, which was to promote the efficient resolution of claims. The court concluded that the respondent's acceptance of liability for statutory benefits did not mean that the claimant could recover damages, and therefore, the decision was affirmed.

The court's decision was final and binding, with no further appeal possible. The claimant was not entitled to recover damages for the accident, and the respondent's liability was limited to the statutory benefits provided under the MAI Act. The court's interpretation of the relevant provisions of the MAI Act was significant, as it clarified the scope of the statutory benefits scheme and the limitations on damages recovery in no-fault accidents.

Orders