QBE Insurance (Australia) Limited v Blakeney

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Blakeney [2024] NSWPIC 148
CLAIMANT:	Jordan Blakeney
INSURER:	QBE (Insurance) Australia Limited
MEMBER:	Terence O’Riain
DATE OF DECISION:	13 March 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer’s application for discretionary exemption from assessment under section 7.34(1)(b); preliminary assessment of claim; Held – a court hearing is more likely to result in the just, quick and cost effective resolution of the real issues in dispute between the parties; the claim is not suitable for assessment; recommendation to exempt the claim; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

Background

Jordan Blakeney (claimant) was injured on 2 May 2020 when his car collided with the insured driver’s vehicle, as the insured driver reversed from his residential driveway located on King Georges Road, Hurstville NSW.
The claimant’s vehicle was approaching over the crest of the hill, which obscured his view of the insured driver. There was a warning sign at the crest of the hill facing the claimant’s direction of travel that alerted approaching drivers to prepare to stop.
The insured driver claims he was already on the roadway at the time the claimant came over the hill, which conflicts with the claimant’s version.
The claimant’s vehicle took evasive action to avoid colliding with the insured driver, which was partially successful, but he then proceeded further along the road and hit the rear of a heavy truck. It was at that point the claimant received frank facial and spinal injuries. The subsequent medical disputes are being assessed now in the Personal Injury Commission (Commission). The Commission is also assessing the claimant’s psychiatric injuries.
The insurer has denied liability for Mr Blakeney’s common law damages claim by its notice dated 22 June 2023 on the basis that the insured driver did not owe the claimant a duty of care and that he denies that he breached any duty of care he owed the claimant.
The claimant referred his claim for damages to the Commission for assessment, and the insurer is seeking an exemption from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act).

Preliminary conferences

At a preliminary conference held on 27 February 2024 the claimant confirmed that he neither opposed nor consented to the insurer’s application for exemption.
The insurer’s solicitor confirmed that it relied on its written submissions and highlighted aspects that were pertinent to deciding whether this claim was not suitable for assessment in the Commission.
There is no objection to me making this decision on the papers, based on the insurer’s submissions, and attached evidence.

Statutory framework

The insurer’s application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is, relevantly, in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) ..., or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) applies to the application. The rule is in the following terms:
“99 Consideration of discretionary exemption from claims assessment
(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.
(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.
(3) Without limiting the matters that may be considered, the Commission may consider the following—
(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,
(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.”
Procedural Direction MA5 applies to the application for exemption.

Evidence

The insurer lodged submissions and evidence, while the claimant has not lodged a reply.
I will not refer to all the insurer’s evidence but refer to relevant aspects.
In the claimant’s application for personal injury benefits dated 20 May 2020 he recorded that he suffered physical and psychological injuries because of the accident, which he described as follows:
“I was driving up a hill at 60 km on King Georges Road in the left lane heading to Sutherland Cemetery. When I reach the top of the hill there was a car making a turnout of Greenbank Street. The car was hanging into my lane. I indicated and tried to swerve around the car. I then lost control of my vehicle and slid down the hill into a parked truck and a red set of lights at the corner of Hillcrest and King Georges Road.”
The insurer instructed Brooksight Investigations to conduct a factual investigation into the accident circumstances and the claimant’s allegations. That company produced a report dated 25 June 2020.
The investigator interviewed the police officer in charge of investigating the accident. She confirmed the location of the accident. The police assessed all the drivers for alcohol use. Based on that testing the police decided that alcohol was not a factor in the accident.
The officer in charge confirmed there was an independent witness Mr Omar El Debel, who had told the police he believed the claimant’s vehicle was speeding at the time of the accident. The officer in charge would not provide any further details of that witness.
However, the insurer was able to obtain the officer in charge police notebook which set out witnesses’ statements about the accident. The police notebook shows Mr El Debel told the police that he was driving north bound on King Georges Road when he heard a car ahead of him accelerating hard. He saw the claimant’s car “fly over the crest”. He could see the suspension of the vehicle, so it looked airborne.
He heard a loud bang and saw the claimant’s car travel into the back of a truck. He did not see any skid marks, which would have indicated that that the claimant had applied his brakes.
The police did not issue any infringements for this accident because of the road conditions and the accident had occurred near the crest of the hill, thus not allowing the insured to have a clear view of the oncoming traffic, and limiting the claimant’s visibility of that reversing vehicle.
The officer in charge hypothesised that the claimant was speeding, but the police were not able to determine the speed.
The investigator interviewed the insured driver. The insured driver told the investigator that he was required to reverse out onto King Georges Road.
The insured says he checked over his left shoulder and his mirrors before he reversed slowly to the point where his vehicle was in line with the driveway and the roadway. At that point he checked his left shoulder again and only began to reverse once the traffic lights at Hillcrest Avenue were red. As he reversed slowly, he continued to check his left side because his driveway is located on a blind spot for motorists travelling Southeast, because it is on the top of a crest.
He was reversing his vehicle at less than 5 kmph and had passed into lane one of two and was entering lane two of two on the roadway when the claimant’s vehicle came over the crest of the hill.
He then saw the claimant’s vehicle attempt to swerve into lane one of two, where he scraped the left front side of the insured’s vehicle. The insured felt a very minor “wobble,” which caused minimal damage.
The insured says he saw the claimant’s car continue south-east in lane one of two where he hit the rear of the third-party truck that was stationary at the red traffic light.
The claimant parked his vehicle in lane one and went to help the driver and his female passenger before he called the emergency services.
The claimant’s passenger was complaining of back injuries. The ambulance took her to hospital. The insured did not have a chance to exchange details with the claimant and he has not had any contact with the claimant since the accident.
Brooksight Investigations interviewed the claimant on 18 March 2021, which was included in a report dated 30 March 2021.
On the date of the incident Mr Blakeney was travelling with his partner to Woronora Crematorium for a memorial service.
He says he was travelling in lane one of two on King Georges Road. He told the investigator that part of King Georges Road has declines and inclines and as he reached the crest of the last incline, he observed the insured vehicle reversing onto the roadway.
Mr Blakeney says he was trying to avoid impacting with the insured vehicle and swerved into lane two of two and lost control of the vehicle, which continued until it struck the rear of a truck waiting at the traffic lights.
Mr Blakeney denied he was speeding and that he does not believe his car touched the insured vehicle. His vehicle was a total write-off after it hit the parked truck.
At the time the investigator interviewed Mr Blakeney he was in a residential facility for drug rehabilitation. After the accident he had served four months in jail and had been released in December 2020 to undergo rehabilitation.
During the interview Mr Blakeney referred to having memory difficulties and struggling with his mental health. He talked about the pain he was going through because of his accident, but at the time he was more concerned about his partner’s welfare, because she had suffered frank injuries.
The insurer’s bundle also includes photographs of the claimant’s vehicle, which showed extensive damage.
The insurer also obtained the claimant’s criminal record, which showed drug and driving offences.
The insurer has also instructed William Keramidas who is a forensic engineer to produce a report on the subject accident dated 22 May 2023. The report includes a collision reconstruction, which estimates that at the time the claimant struck the insured driver’s vehicle is he was travelling at about 86 kmph and that the approach speed to the accident site was in the range of 90 to 100 kmph in a 60 kmph zone. The report concludes that if the claimant had driven at the prevailing speed limit, he would have certainly been able to avoid the impact with the insured vehicle and the stationary truck. The claimant’s speed was the primary cause of the collisions.

Insurer’s submissions

Following s 7.34 of MAI Act, a claim can be exempt, if the Commission has made a preliminary assessment of the claim and determined that the claim is “not suitable for assessment”.
Rule 99 of the Commission 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. The matters which may be considered are expressly listed in sub-section 3 as including:
“(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.”
On the issue of ‘suitability’, in IAG Limited t/a NRMA Insurance v Khaled [2019] NSWSC 320, Bellew J agreed with the insurer’s submissions that the assessor in this matter posed the wrong question by asking whether the claim could be dealt with in CARS as opposed to asking whether the claim was not suitable for assessment in CARS (now, the Commission). In this regard, Bellew J stated: “There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way.”
Relying on the earlier decision of Campbell J in Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519, Bellew J held that relevant considerations include:
(a) whether both parties will receive a hearing (assessment conference) which is fair in a practical sense having regard to the nature of the allegation raised, and
(b) which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity to properly and fairly cross-examine witnesses whose credit is to be impugned and the greater availability of cross-examination of experts on the material which may call a claimant's reliability into question.
In IAG Ltd t/as NRMA v Qianxia Lou [2019] NSWSC 382, Wilson J quashed an assessor’s refusal of an insurer’s application for exemption based on an allegation of false and misleading statements as to injuries, loss, and damage as well as the complexity of the matter. His Honour’s decision was because the assessor had reasoned that the issues raised by the insurer were “regularly ventilated” in CARS assessments, were “a common issue” in such assessments, and “can be” dealt with in the assessment process. Wilson J stated that such factors were irrelevant to determining whether matter was suitable for assessment at CARS.

Complexity – Factual issues

There is a dispute about the claimant’s speed in the accident. The claimant has given a version that an eyewitness and the insurer’s expert report on liability have contradicted.
It is likely this matter would take four to five days to hear.
The courts have considered the who is a ‘party’ question in Commission disputes in several recent court decisions. The courts have noted that the parties to a dispute between the Commission are the claimant and the licensed insurer only.
Under s 72(2) of the MAC Act and s 6.12(2) of the MAI Act, the claimant seeks damages directly against the insurer and the claimant does not have to serve the claim form on the owner or driver.
Following rule 34(1) of the PIC Rules, a party can only call a witness to give evidence if the written statement was served, or alternatively the Commission issues a summons if the witness refuses to provide a signed statement.
Section 51(2) of the PIC Act only allows the Commission to summon a party to the proceedings, not the insured driver or a witness.
There is no equivalent of a bench warrant for arrest for the failure to comply with a demand to attend an assessment, unlike the District Court if it issues a subpoena.
If the matter remains in the Commission, it cannot be certain that all relevant witness evidence will be adduced whereas the District Court provides the ability to issue subpoenas to give evidence.
The insurer would require Constable Egbers, Mr El Debel, the truck driver and the insured driver to give evidence to verify the events leading up to the accident.
Further, neither party would be able to compel Mr Keramidas to give evidence, nor any expert qualified by the claimant if qualifies an expert.
There are issues of the claimant’s credibility about his version of how the accident happened.
For those reasons, the insurer submits it would be preferable that the claimant give evidence under oath or affirmation where the rules of evidence apply, which is not available in the Commission.
The insurer highlighted the following issues of credibility:
(a)    the NSW Police records suggest that following the subject accident, the claimant was under the surveillance of police for suspected drug activities;
(b)    the claimant was subsequently charged in connection with the supply of illicit substances with a street value in the vicinity of $1,890,000. The police arrested the claimant on 31 July 2020 in relation to those charges, noting the subject accident occurred on 3 May 2020. The claimant has spent a period in jail following those charges. Initially he was in a drug rehabilitation facility. However, more recently the court returned him to custody until February 2023;
(c)    additionally, on 26 June 2020, less than two months after the accident (and before his arrest), the claimant was issued with a traffic infringement notice for driving a Class A motor vehicle for speeding more than 85 kmph in a 60 kmph sign posted area. His ability to drive then is also inconsistent with his reported psychological restrictions, and
(d)    considering the claimant’s criminal history, the insurer submits that there are issues as to the claimant’s credibility and therefore the claimant should give his evidence under oath or affirmation and ensure procedural fairness.
The insurer also submits that the above complexities, particularly in respect of liability, mean that the Commission would need more than one day to assess liability and damages questions.
Accordingly, the insurer submits that this matter meets the criteria of rule 99(3) of the Rules, and that the matter ought to be exempt from assessment on a discretionary basis it is not suitable for assessment.

Determination

My task is to make a preliminary assessment of the claim and determine whether the claim is not suitable for assessment under Div 7.6 of the MAI Act: s 7.34(1)(a). The word “suitable”, in this context is to be given its natural an ordinary meaning, namely: such as to suit; appropriate, fitting, becoming: IAG Limited t/as NRMA Insurance v Khaled[2019] NSWSC 320 Bellew J at [27].
On the available evidence to which I have referred to above, I am satisfied that the claim involves complex issues relating to liability, contributory negligence, and damages.
I consider that in these circumstances a court hearing is more likely to result in the just, quick, and cost-effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act.
Not being able to summon witnesses or apply the rules of evidence would hamper assessing this claim in the Commission. A court hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment with a court hearing on the other, see: Insurance Australia Limited t/as NRMA Insurance v Banos[2013] NSWSC 1519 at [43].
I have made a preliminary assessment of the claim, taken into consideration the objects of the PIC Act, and considered the claim’s issues. I have concluded that the claim is not suitable for assessment under Division 7.6 of the MAI Act. I recommend that the President exempt this claim from assessment.
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 4 April 2024, approved Member O’Riain’s recommendation that the claim is not suitable for assessment.

[2024] NSWPIC 148

13 March 2024