QBE Insurance (Australia) Limited v Hovius

[2024] NSWPIC 474

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	QBE Insurance (Australia) Limited v Hovius [2024] NSWPIC 474
CLAIMANT:	Peter Hovius
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Hugh Macken
DATE OF DECISION:	7 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - litigation in Supreme Court; denial of liability; multiple claims; complex legal factual issues; issues of liability; allegation of contributory negligence; multiple dependants; additional potential defendants; need for consistent findings; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as Delegate of the President.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

1. Peter Hovius (the claimant) is a 58-year-old man who was injured on 14 July 2018 whilst working underground during the construction of the Hills Showground Metro Station. The insurer, QBE, was the insurer of the IZUZU FXZ 1500 Road rail Vehicle (RRV) with the registration IBLAST.

2. At about 1:30am whilst undertaking work deep underground a grinding vehicle was travelling along the rail over multiple runs and removing material from the railhead. The insured vehicle travelled along the rail following the grounder to supply water as part of the fibre bench cleaning and dust suppression measures. The grinder paused, the insured vehicle applied the brakes but was unable to stop and skidded on the rails and collided with the grinder. The claimant sustained injuries when jumping out of the way of the insured’s vehicle.

3. A claim has been made against NRMA (the insurer). The insurer has denied liability for this claim.

4. The insurer has now referred the claim to the Personal Injury Commission (the Commission) seeking an exemption from assessment.

5. On 6 June 2022 proceedings were commenced in the Supreme Court against John Holland PTY LTD, being the head contractor of the site, alleging negligence. John Holland have denied liability and in particular alleged there was no defect or negligence on their part or in respect to the operation of the RV. The likelihood therefore is that the claimant will be obliged to include, in the proceedings which are currently before the Supreme Court, a claim against both his employer and the CTP insurer of the registered vehicle.

6. Noting that the injuries for which compensation has sought other subject of proceedings in the Supreme Court, specifically in relation to all the circumstances of this accident, together with all injuries loss and damage arising from the accident and noting the likelihood of there being overlap of the multiple claims I concur that with both parties that this is a matter which ought properly be exempted from proceedings in the Personal Injury Commission (Commission) so that, should it be required, any proceedings against the CTP insurer can be bought concurrently with the current Supreme Court proceedings.

CONCLUSION

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 Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.

2. 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 17 September 2024, approved Member Hugh Macken’s recommendation that the claim is not suitable for assessment.