Maqdasi Hanna v QBE Insurance (Australia) Limited

[2025] NSWPIC 264

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Maqdasi Hanna v QBE Insurance (Australia) Limited [2025] NSWPIC 264
CLAIMANT:	Aseel Maqdasi Hanna
INSURER:	QBE Insurance Australia Limited
MEMBER:	Susan McTegg
DATE OF DECISION:	12 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant brought a claim for nervous shock arising of death of father in a motor vehicle accident; claims lodged by two other siblings and claimant’s mother; claim for nervous shock and compensation to Relatives Act claim brought on behalf of youngest sibling (a minor) exempted from assessment; dispute as to contributory negligence; Held – facts surrounding deceased accident relevant to all five claims so appropriate evidence in one be evidence in the other to ensure consistency; claims should be heard concurrently; recommended claim be exempted from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATION – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. Aseel Maqdasi Hanna (the claimant) has brought a claim for nervous shock arising out of the death of her father in a motor vehicle accident on 26 September 2022.

2. The claimant asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3) of the Personal Injury Commission Rules 2021 (the PIC rules).

3. Rule 99 of the PIC Rules provides that in determining whether a claim is suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim.

4. In determining whether a claim is not suitable for assessment for the purposes of
   s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include the following:

   (a)    whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim, and

   (b)    whether the claim involves issues of liability, including contributory negligence, fault or causation.

THE FACTS

1. On 26 September 2022, the deceased, the claimant’s father was crossing the road and was hit by a vehicle driven by the insured driver (the accident).

2. The claimant has lodged a nervous shock claim arising out of the accident.

3. Nervous shock claims have also been lodged in respect of the accident by the following:

   (a)    Saif Saad Behnam Maqdasi Hanna -the deceased’s adult son and the claimant’s sibling.

   (b)    Sama Saad Behnam Maqdasi Hanna (a minor) - the deceased’s daughter and the claimant’s sibling.

   (c)    Ekhlas Kajo - the deceased’s wife and the claimant’s mother.

4. In addition, a Compensation to Relatives Act claim has been lodged on behalf of the three dependents of the deceased arising out of the accident.

5. In respect of each claim for nervous shock and the Compensation to Relatives Act claim liability has been admitted but there is an allegation of contributory negligence on the basis the deceased:

   (a)    failed to keep a proper lookout;

   (b)    failed to take care of his own safety, and

   (c)    failed to cross the road at a pedestrian crossing.

6. The insurer submits that consistent with s 30(3) of the Civil Liability Act 2002, any damages awarded to the claimant for pure mental harm are to be reduced in the same proportion as any reduction in damages that may be recovered from the insurer by or through the claimant of the basis of the contributory negligence of the deceased.

7. The nervous shock claim brought on behalf of Sama Saad Behnam Maqdasi Hanna was exempted from assessment by a Certificate of Exemption dated 6 August 2024 on the basis she was a person under legal incapacity.  Proceedings have been commenced in the District Court being matter No. 202400367482.

8. The Compensation to Relatives Act claim was exempted from assessment by a Certificate of Exemption dated 27 June 2024 on the basis the proceedings were brought on behalf of a person under legal incapacity. Proceedings have been commenced in the District Court being matter No. 202400316897.

THE GROUNDS FOR THE APPLICATION

Complex factual issues and contributory negligence

1. The claimant submits the claim is not suitable for assessment in the Commission due to the allegation of contributory negligence which is identical in all matters and where it is preferable for all five matters to run concurrently together.

2. The claimant submits there are overlapping liability issues across all matters and that it would be preferable if the evidence in one claim is evidence in the other.  It is submitted the appropriate use of resources means it is appropriate that all matters be dealt with together.   

INSURER’S REPLY

1. The insurer uploaded a Reply, and submissions dated 10 June 2025.  The insurer concurs with the claimant’s application for exemption. 

2. The insurer notes it would be in the interests of consistency for all matters to be exempted from assessment and heard by the one decision maker to ensure consistency in the determination of the factual issues associated with each claim.

CONCLUSION

1. Where the claim for nervous shock and the Compensation to Relatives Act claim brought on behalf of Sama Saad Behnam Maqdasi Hanna have been exempted from assessment, given Ms Hanna is a person under legal incapacity, it is appropriate that all related disputes are exempted from assessment so they can proceed to a concurrent hearing in the District Court.

2. Where the facts surrounding the deceased’s accident are relevant to all five claims it is appropriate that the evidence in one be the evidence in the other to ensure consistency in the determination of liability and contributory negligence.

3. Having regard to the complex factual issues and the allegation of contributory negligence I am of the view all five claims should be heard concurrently.  Accordingly, I am of the view this claim should be exempted from assessment by the Commission.

RECOMMENDATION

1. 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 exempted from assessment.

2. I vacate the preliminary conference listed on 16 June 2025 at 10.30am.

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 14 July 2025, approved Member Susan McTegg’s recommendation that the claim is not suitable for assessment.