Murphy v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Murphy v QBE Insurance (Australia) Limited [2022] NSWPIC 183

CLAIMANT:

Ryan Murphy

INSURER:

QBE Insurance (Australia) Limited

MEMBER:

Maurice Castagnet

DATE OF DECISION:

29 April 2022

CATCHWORDS:

MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant; section 3.28 of the Motor Accident Injuries Act 2017; where claimant’s vehicle struck in the rear by police vehicle at speed under flashing lights and siren en route to emergency; where claimant had commenced changing lanes at the time of the collision; whether driver of police vehicle took reasonable care; social utility of police vehicle attending emergency; whether the claimant failed to give way to emergency police vehicle; sections 5B, 5C and 5R of the Civil Liability Act2002; Road Rules 79 and 305 of NSW Road Rules 2014; finding of contributory negligence on the part of the claimant assessed at 50%; Held– claimant not mostly at fault.

DETERMINATIONS MADE:

1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the claimant.

2.     The effective date of this decision is 25 January 2020.

Reasons for Decision

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

INTRODUCTION

1. These proceedings concern a Miscellaneous Claim assessment under Schedule 2, clause (3)(e) of the Motor Accident Injuries Act 2017 (the MAI Act).

2. The claimant, Ryan Murphy, seeks a review of the insurer’s decision made under section 3.28 of the MAI Act to the effect that the claimant was wholly or mostly at fault for the motor accident.

BACKGROUND

1. The claimant is a 41-year-old man who suffered injuries in a motor accident on 25 July 2019 when the insured NSW Police Force vehicle collided with the rear of his vehicle on the Princes Highway, Kirrawee, near Bath Road.

2. On 25 November 2020, the claimant made an application for payment of statutory benefits. Specifically, he sought payment of benefits for treatment and care.

3. On 21 January 2021, the insurer notified the claimant that it declined liability for payment of those benefits after 26 weeks from the date of the accident on the basis that he was wholly or mostly at fault for the accident.

4. On 27 January 2021, the claimant sought an internal review of the insurer’s decision. On 18 February 2021, the insurer issued a determination, affirming its original decision.

5. On 7 May 2021, the claimant commenced these proceedings in the Personal Injury Commission (the Commission) to resolve the dispute.

6. The proceedings are now before me for determination.

DOCUMENTS CONSIDERED

1. In making my determination, I have considered all documents provided by the parties to the Commission, which includes:

   (a)the Application for Personal Injury Benefits dated 25 November 2020;

(b)the NSW Police Report dated 15 December 2020;

(c)the Liability Notice for Benefits after 26 weeks dated 21 January 2021;

(d)the claimant’s application for internal review dated 27 January 2021;

(e)the report of Brooksight Investigations dated 2 February 2021, which included a statement from…