Kc v QBE Insurance (Australia) Limited

[2024] NSWPIC 403

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kc v QBE Insurance (Australia) Limited [2024] NSWPIC 403
CLAIMANT:	Ganga Kc
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Terence O'Riain
DATE OF DECISION:	29 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Nominal Defendant; nervous shock claim arising from claimant’s son’s catastrophic brain injuries; lifetime care; breach of duty of care denied; claimant applied for discretionary exemption from assessment; claimant’s son’s claim is exempt; preliminary assessment of claim; complex evidence; cross examination of multiple liability witnesses; possible location view; estimated hearing time 7 to 10 days; insurer consents to application; Held – court hearing is more likely to result in the just, quick, and cost-effective resolution of the disputed issues; recommendation that claim is not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. Ganga Kc (the claimant) has requested the matter be exempted from an assessment hearing in respect of damages.

2. At about 10.30pm on 14 July 2022, the claimant’s son Mr Sijan Bhattarai was riding his motorbike east on the M5 Motorway. When he reached between Moorebank Avenue and the Hume Highway exits, his bike collided with a rock on the roadway, causing him to fall to the road. Several vehicles travelling on the motorway struck Mr Bhattarai at approximately 100kmph, which severely injured him.

3. The police report indicates that Mr Bhattarai lost control of his motorbike due to the presence of a rock on the road. Given the location of the accident on the Hume motorway, that rock could only have come to be on the roadway due to falling from an improperly secured load from a vehicle within the meaning of the Motor Accident Injuries Act 2017 (MAI Act).

4. Police have not located any vehicle from which such rock may have come. Accordingly, the claimant made a claim against the Nominal Defendant. QBE insurance manages those claims.

5. The insurer has denied breach of duty of care and liability for common law damages.

6. Mr Sujan Bhattarai was 18 years old who recently arrived in Australia to study and work. The accident caused catastrophic injuries. He is a high care needs patient under the Lifetime Care – iCare support.

7. Mr Bhattarai sustained brain injuries among others, so the insurer applied to the Personal Injury Commission (Commission) for exemption on the basis that Mr Bhattarai is a person under legal incapacity. Mr Bhattarai’s tutor consented to the application.

8. The Motor Accident Division Head Marie Johns issued a Certificate of Exemption under s 7.34 (1) (a) MAI Act and clause 14 (a) of the Motor Accident Injuries Regulation 2017 on 27 June 2024 as Ms Johns was satisfied that Mr Bhattarai is a person under legal incapacity.

9. The claimant is Mr Bhattarai’s mother. She has claimed common law damages with the Nominal Defendant insurer for psychological (nervous shock) injury. The insurer has also denied her claim.

10. The claimant and insurer agree that the complex issues regarding liability in Mr Bhattarai’s matter will be the same issues as those impacting his mother's nervous shock claim.

11. A hearing would involve cross-examining at least 5-10 witnesses on liability, including police officers, and possibly run for 7-10 days. This will require issuing subpoenas to ensure witnesses attend and to produce documents. It may also require viewing the location.

12. The claimant’s case is that her claim and related claim (of her son) involve complex legal issues or factual issues, or complex issues in the assessment of the amount of the claim and issue of liability, including contributory negligence, fault, or causation (rules 99 (3) and 99 (3) (b) of the Personal Injury Commission Rules.

CONCLUSION

1. In the circumstances, the matter meets the criteria of being sufficiently complex and it is not suitable for assessment at the Commission.

2. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.

3. In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 20 August 2024, approved Member Terence O'Riain’s recommendation that the claim is not suitable for assessment.