Petrou v QBE Insurance (Australia) Limited

[2022] NSWPIC 704

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Petrou v QBE Insurance (Australia) Limited [2022] NSWPIC 704
Claimant:	James Petrou
insurer:	QBE Insurance Australia Limited
Member:	Belinda Cassidy
DATE OF DECISION:	8 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by claimant for exemption on basis that claim not suitable for assessment; insurer agrees; claimant injured at work while driving a Toro buggy on the footpath then onto the nature strip where the roll bar of the Toro struck an overhanging branch of a tree and the Toro tipped over; claimant and insurer argued complex issues of liability including whether the accident was a motor accident and whether damages should be paid by the compulsory third party (CTP) insurer or workers compensation insurer; Held – claim not suitable for assessment due to the issues of insurance.
determinations made:	RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. James Petrou was involved in a motor accident on 26 November 2019. The circumstances of the claim are somewhat novel. Mr Petrou was in the course of his employment as an apprentice gardener driving a “Toro” tipper utility type buggy on the footpath. As a pedestrian approached him, Mr Petrou drove the Toro onto the nature strip and the roll bar of the vehicle clipped a low hanging tree branch and the buggy tipped over.

2. Mr Petrou sustained serious injury to his left leg including the amputation of the first and second toes on his left foot.

3. On or about 12 February 2020, Mr Petrou made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against QBE the compulsory third party (CTP) insurer of the buggy Mr Petrou was driving. I understand while the claim may have been accepted, no statutory benefits were paid because Mr Petrou has been paid statutory workers compensation benefits.

4. On or about 5 May 2022 Mr Petrou made a damages claim against QBE on the basis that the owner of the vehicle, the claimant’s employer was at fault and caused his accident.

5. On or about 7 August 2022 QBE issued a liability notice to the claimant denying liability for the following reasons:

   (a)    there was no fault on the part of the owner;

   (b)    there was no defect in the vehicle;

   (c) while the vehicle had conditional registration the vehicle was not being driven on a road or road related area at the time and therefore his claim does not fall within s 2.3 of the MAI Act;

   (d)    if there is liability the claimant is guilty of contributory negligence in the order of 100%, and

   (e)    QBE says the claimant has no entitlement to damages.

6. The claimant has referred the claim to the Personal Injury Commission (the Commission) seeking exemption of it from assessment.

THE PARTIES’ SUBMISSIONS

1. The claimant has not filed formal submissions but in the application for exemption form indicates there is a dispute about “whether the accident is a motor accident” and whether “the claim is a work injury damages claim”.

2. The insurer has lodged more fulsome and helpful submissions agreeing that the claim is not suitable for assessment because the claim involves complex legal and factual issues including liability and contributory negligence and there is a non-CTP party involved.

3. The complex legal and factual issues including liability and contributory negligence include:

   (a)    whether the claimant’s employer owned the vehicle;

   (b)    whether there was any negligence / fault on the part of the owner;

   (c)    whether the risk of colliding with a tree on the nature strip was a foreseeable risk;

   (d)    even if there was “fault” on the part of the owner of the vehicle (which is denied by QBE), whether the owner’s negligence caused the claimant’s injury;

   (e)    whether the incident on 26 November 2019 occurred on a “road”, and

   (f)    an assessment of the degree of contributory negligence of the claimant (if contrary to QBE’s submissions liability is established).

4. It is clear that Mr Petrou will be the plaintiff in the proceedings and his employer will be the defendant in its capacity as the owner of the only motor vehicle involved in the accident. The insurer also submits that the claimant’s employer may be involved in work injury damages proceedings to answer the allegation that the claimant was instructed by his superiors to ride on the footpath. Both the CTP insurer and the employer’s workers compensation insurer will require representation in the proceedings.

CONSIDERATION OF THE ISSUES

1. Division 7.6 of the MAI Act provides for the assessment of liability and the quantum of motor accident claims for damages. Not all claims must be assessed and s 7.34 provides for the exemption of claims from assessment if “the Commission has made a preliminary assessment of the claim and has determined … that the claim is not suitable for assessment”.

2. Rule 99(3) of the Personal Injury Commission Rules says that in considering the suitability of a claim for assessment, the Member should consider the objects of the Personal Injury Commission Act and the circumstances of the claim and may consider the following matters:

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

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

   (c)     whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State;

   (d)     whether a claimant or insurer seeks to proceed against one or more non-CTP parties, and

   (e)     whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.

3. It is also relevant, in my view, that both the claimant and the CTP insurer are of the view that Mr Petrou’s damages claim is not suitable for assessment.

4. Section 7.30 of the MAI Act provides that the only two parties to an assessment are the claimant and the CTP insurer. The workers compensation insurer has no ability to appear or be involved in an assessment of a damages claim made under the MAI Act. Similarly, the Motor Accidents Division of the Commission has no power to hear and determine an employer’s liability for a work injury damages claim.

5. In my view, the involvement of the employer, due to the allegation that the claimant was instructed to drive where he drove, makes Mr Petrou’s MAI Act damages claim not suitable for assessment. Exemption of the claim will enable Mr Petrou to commence court proceedings and appropriate orders can be made to ensure both insurers are represented and heard in respect of all aspects of liability for the claim.

6. Having made a preliminary assessment of the claim, I determine for the reasons set out above that Mr Petrou’s damages 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.