QBE Insurance (Australia) Limited v Patwary

[2023] NSWPIC 132

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	QBE Insurance (Australia) Limited v Patwary [2023] NSWPIC 132
Claimant:	Mohammad Patwary
insurer:	QBE Insurance (Australia) Limited
Member:	David Ford
DATE OF DECISION:	27 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Application for exemption from damages assessment lodged by the insurer pursuant to the provisions of section 7.34 of the Motor Accident Injuries Act 2017 (2017 Act) and specifically pursuant to rule 99(2)(a) and (b) of the Personal Injury Commission Rules 2021; whether the claim involves complex legal or factual issues or complex issues in the assessment of the amount of the claim and whether the claim involves issues of liability, including contributory negligence, fault or causation; availability of witnesses to attend the assessment conference; Held – claim did not involve such complex issues as submitted by the Insurer and witness availability was not an issue after further enquires made by the insurer; this claim is suitable for assessment under the provisions of  the 2017 Act.
determinations made:	RECOMMENDATIONS – CLAIM SUITABLE FOR ASSESSMENT

INTRODUCTION

1. This is an application for exemption from damages assessment lodged by the Insurer pursuant to the provisions of s 7.34 of the Motor Accident Injuries Act 2017.

2. This Application is made pursuant to rr 99(3)(a) and (b) of the Personal Injury Commission Rules 2021.

3. On 1 December 2017 the claimant was riding his motorcycle along William St towards the intersection with Marcella St at Kingsgrove. It is submitted on behalf of the claimant as he approached the intersection, the insured driver who had momentarily parked his motor vehicle at the kerb of William St suddenly without warning drove out from the kerb to make a right hand turn into Marcella St whereupon a collision occurred.

4. However the insured driver in response, states he had engaged his right indicator and already commenced to move his vehicle out from the kerb as he considered it safe to do so and was halfway across the westbound lane of William St when the collision occurred.

5. The insurer makes specific reference to r 99(3) which states.

   “(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,

6. In support of their application the insurer submits the matter involves a degree of factual complexity. It is submitted the claimant and the insured driver provided conflicting accounts of how the accident transpired, such that requires examination and scrutiny in order to distil the liability position i.e. calling on lay / expert witnesses and likely considering accident reconstruction evidence. The insurer further submits there are witnesses to the subject accident who are capable of providing evidence which will assist the determination of liability i.e. the insured and the passenger in the insured vehicle who are not named parties to these proceedings.

7. I refer to the primary submissions made by the insurer dated 7 June 2022. The insurer made further submissions on 26 October 2022 in which it is submitted Member Bolton should make a separate assessment of liability; these submissions make no mention of an application for exemption. After the matter was referred to me, I advised the parties I was not prepared to make a separate determination in regard to liability and I directed that both issues of liability and damages would be determined by me at the same time.

8. The solicitor for the claimant opposes the application for exemption and has lodged statements of the claimant dated 25 March 2022 and 28 September 2022. I have also read the further submissions lodged on the portal dated 21 March 2023.

REASONS

1. I had previously set the matter down for general assessment conference on

   
   

   4 April 2023 pending the resolution of this application for exemption. It was necessary to hold a preliminary teleconference on 14 March 2023, as by consent the parties sought to postpone the general assessment conference as it is necessary to make an application for assessment of the claimant’s whole person impairment with the medical service and in view of the delay which will be incurred in finalising this application, I referred the matter to the stood over list.

2. At the preliminary teleconference, the solicitor for the insurer confirmed she had made contact with the insured driver and he was available to be questioned at the proposed assessment conference on 4 April. In addition, the investigator from Quantumcorp was also available. In relation to the police officer, she was making further inquiries regarding his availability to be questioned at the assessment conference.

3. There was no mention of the proposed attendance of the wife of the insured driver who was a passenger in the motor vehicle at the time of the accident. I note the investigator did not obtain a statement from the wife of the insured driver. I stated the police report compiled by the police officer and his record of interview with the investigator could be submitted at the assessment conference and the solicitor for the claimant advised he had no objection to this proposal.

4. The solicitor for the insurer made no mention as to whether the insurer would be obtaining an accident reconstruction report and I note there is no reference of the intention to obtain such a report in the further submissions made by the insurer dated 26 October 2022.

5. Accordingly, it is apparent the insurer will be able to arrange for the attendance   of the insured driver, the investigator, and most likely will also be able to arrange for the police officer to attend the assessment conference and to be available for questioning either in person, by AVL, or by telephone.

6. Accordingly, after reading all of the statements of the claimant, the insured driver, the investigator report, the police report and submissions regarding the facts and circumstances of this accident, I do not consider the claim involves complex legal or factual issues. I further note the insurer in their subsequent submissions dated

   
   

   26 October 2022 were content to have Member Bolton resolve separately the issue of liability.

CONCLUSION

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is suitable for assessment.