Kong v QBE Insurance (Australia) Limited - [2022] NSWPIC 278

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kong v QBE Insurance (Australia) Limited [2022] NSWPIC 278
CLAIMANT:	George Kong
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	B. K. Nolan
DATE OF DECISION:	25 May 2022
CATCHWORDS:	MOTOR ACCIDENTS - miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred while the claimant was making a left hand turn on an inside lane and insured truck turning from the outside lane collided with claimant vehicle; claimant did not see the insured vehicle prior to the accident; where the insured driver was able to see claimant vehicle; Held– claimant not at fault for the motor accident.
DETERMINATIONS MADE:	The findings of the assessment of this dispute are as follows: For the purposes of section 3.11 the motor accident was not caused by the fault of another person. For the purposes of sections 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person. Effective Date: This determination takes effect on 7 November 2019. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

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

BACKGROUND

George Kong (the claimant) is a 55-year-old male born on 11 July 1966. He alleges that on 7 November 2019, an insured vehicle collided into the rear of his vehicle as he was turning left from Bourke Street onto Lachlan Street in Waterloo, New South Wales. In his application for personal injury benefits the claimant alleges that on the day of the accident he was driving his vehicle south-west on Bourke Street in Waterloo. When he approached the intersection of Bourke Street and Lachlan Street, he stopped his car and suddenly the insured vehicle (a concrete truck) collided with the rear of his vehicle.
On 19 March 2021, QBE issued a post 26 weeks Liability Notice advising that the claimant’s entitlement to treatment and care related expenses would cease on 7 May 2020 on the basis that the claimant was wholly at fault. By internal review dated 17 April 2020 this decision was affirmed.
By way of an application for a miscellaneous claims assessment pursuant to s 3.28 (1)(a) of the Motor Accidents Injuries Act 2017 (NSW) (the 2017 Act), the claimant challenges the insurer’s decision that he was wholly at fault for the subject accident.
The insurer qualified Brooksight Investigations to undertake a factual investigation of the circumstances surrounding the accident.
The Brooksight Investigation report records that the claimant was legally represented, and a draft statement was obtained and then emailed for review to the claimant’s legal representative. The claimant forwarded his review and amended signed statement to the investigators on 18 February 2022.
The claimant was interviewed with the assistance of a Cantonese interpreter and produced a statement.…

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 Kong v QBE Insurance (Australia) Limited

Details

AGLC: Kong v QBE Insurance (Australia) Limited [2022] NSWPIC 278
Case: [2022] NSWPIC 278
Decision Date: 25 May 2022

CaseChat Overview and Summary

Kong sued QBE Insurance, following a motor accident where the insured truck collided with Kong’s vehicle while Kong was making a left hand turn. The issue was whether Kong was wholly or mostly at fault for the accident under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017. Kong claimed that he was not at fault, and the insured truck driver was. QBE Insurance argued that Kong was at fault because he did not see the truck before making the left turn. Kong argued that he could not see the truck due to its size and position, and the truck driver should have seen him and adjusted their speed accordingly.

The court considered the circumstances of the accident, including that Kong was on an inside lane and the truck was on an outside lane. The court noted that Kong did not see the truck before the accident and the truck driver was able to see Kong’s vehicle. The court held that the truck driver should have seen Kong’s vehicle and adjusted their speed to avoid the collision. The court found that Kong was not at fault for the accident because he could not see the truck before the accident and the truck driver should have seen Kong’s vehicle and adjusted their speed.

The court concluded that Kong was not wholly or mostly at fault for the motor accident. The court found that the truck driver was at fault because they should have seen Kong’s vehicle and adjusted their speed to avoid the collision. The court awarded damages to Kong for the injuries he sustained in the accident.

Orders