QBE Insurance (Australia) Limited v Walker
[2022] NSWPIC 338
•29 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Walker [2022] NSWPIC 338 |
| CLAIMANT: | Ian Walker |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Elizabeth Medland |
| DATE OF DECISION: | 29 June 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Claim for damages; decision on liability only; Claimant unrepresented; Claimant the owner/driver involved in a single vehicle accident; tree fell on vehicle during storm causing injury; a “no-fault” accident as defined in section 5.1 of the Motor Accident Injuries Act 2017; consideration of case of Whitfield v Melenewycz; Held – Claimant not entitled to bring a claim for damages |
| DETERMINATIONS MADE: | Certificate Issued under section 7.36(1) of the Motor Accident Injuries Act2017 Assessment of Claim for Damages made in accordance with section 7.36 of the Act 1. On the issue of liability for the claim, the claimant is not entitled to bring a claim for damages under the Motor Accident Injuries Act2017. |
Reasons for Decision
Issued under section 7.36(1) of the Motor Accident Injuries Act 2017
Background
This dispute relates to a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act).
Mr Ian Walker (the claimant) is a 62 year old man who suffered injury as a result of a motor accident occurring on 20 October 2018.
The claimant was driving a Ford F250 vehicle along Kenyu Road, Boorowa during a storm. A branch from an overhanging tree fell onto the claimant’s vehicle crushing the passenger side cabin roof. The claimant veered off the road and collided with several trees before coming to rest in a culvert.
The claimant was both the owner and driver of the vehicle at the time of the accident.
Following the accident, the claimant lodged an Application for Personal Injury Benefits with his insurer, QBE (the insurer).
Liability for statutory benefits was accepted by the insurer on the basis that the claim for statutory benefits is a “no-fault motor accident” as defined in s 5.1 of the MAI Act.
The claimant subsequently lodged an Application for Damages Under Common Law with the insurer.
By way of notice dated 20 January 2021, the insurer denied liability for the claim for damages. In doing so, the insurer maintained their position that the accident was a “no fault motor accident” as defined by the MAI Act and as such, pursuant to s 4.1 of the MAI Act the claimant is precluded from making a damages claim.
The insurer subsequently lodged an application with the Personal Injury Commission (the Commission) for a determination of the dispute. The matter has been allocated to me for determination.
I have held two teleconferences in this matter. The claimant is unrepresented. The insurer was represented by Mr Robert Chatfield, an employee of QBE.
On the first occasion I did not yet have available to me any documentation from the claimant. I also asked the claimant if he had consulted a lawyer in respect of the claim. He advised that he had consulted a lawyer who had apparently advised him that the issue of a “grey area” and declined to represent him. The claimant expressed concern over being unable to afford legal fees.
I stood the matter over for a further teleconference in order to allow the claimant to lodge all the documentation he wished to rely upon, and to also seek alternative legal opinion.
In a further teleconference of 31 May 2022, the claimant indicated that since the previous teleconference he had approached a further legal firm, who had also declined to take on his case. The claimant had also since the last occasion provided a number of documents. Accordingly, the claimant agreed that I should now determine the matter. Both parties agreed that the matter should be determined on the papers.
I asked the claimant if he wished to say anything to me about his case before I made a determination. He indicated that he did not understand how he could be considered at the fault in the accident. Mr Chatfield confirmed that the insurer agreed that the claimant was not at fault, and instead the accident is considered a “no-fault accident”. It was also confirmed that the insurer submits that the claimant does not have an entitlement to common law damages because he is both the owner and driver of the vehicle.
I advised the parties that for the sake of efficiency I would determine the issue of liability before considering the amount of damages that the claimant may be entitled to. In that if I found against the claimant on the issue of liability then the issue of the amount of damages falls away. In addition, if I found in favour of the claimant on the issue of liability, it would allow the claimant an opportunity to gather evidence to support the claim for damages and seek further legal opinion.
Since the teleconference, the claimant has provided further documentation for my consideration.
Documents considered
I have considered the documents provided in the application and the reply and any further information provided by the parties.
Legislative framework
Section 5.1 of the MAI Act defines a “no-fault motor accident” to mean: “a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use of operation of the vehicle and not caused by the fault of any other person”.
Section 5.2(1) of the MAI Act provides:
“The death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of section 1.10) is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.”
It is noted that the above provisions are essentially identical to ss 7A and 7B(1) of the Motor Accident Compensation Act 1999 (MAC Act). This is relevant so far as relevant case law decided prior to the enactment of the MAI Act. Such case law is discussed further below.
Circumstances of the accident and summary of evidence
In the claimant’s application for statutory benefits he describes the accident as follows:
“Driving home along the Kenyu Rd, approx. 25ks from Boorowa when a huge gust hit blowing the tops out of the large gum trees on the side of the Rd which went through the windscreen, side and back of the truck and some hit front and under causing the truck to be [illegible] off the road.”
A NSW Police Force report of 22 February 2019 confirms the claimant’s vehicle to be the only vehicle involved in the motor accident. The crash summary details are recorded as follows:
“About 15 30pm on Saturday the 20th of October 2018, the victim I [sic] was driving his motor vehicle in a generally east direction along Kenyu Rd, Boorowa. At this time a violent storm was passing through the area. Due to this storm a branch has fallen from a tree and collided with passenger side cabin roof. The sheer force of this has caved in the cabin, causing the branch to hit the victim in the left arm and chest. This caused a large, deep laceration on his left arm and impacted heavily with his chest.
The force caused the branch to snap and come to rest on the speedo dash panel.
The victim has veered of [sic] the road colliding with a number of trees coming to rest in a small culvert. The victim managed to free himself from the vehicle, apply a belt as a tourniquet and hobble about 2km to his cousins house. To note the victim has a prosthetic leg and usually requires crutches to travel distances.
An ambulance was summsed [sic] and Police contacted.
The victim was airlifted to Canberra Hospital. Police attended the scene, took a number of photos.”
Before me is a photograph of the inside of the claimant’s vehicle from the driver’s side taken after the accident. It is consistent with the description of the accident contained within the police report.
The claimant has provided copies of a number of documents. These mainly consist of medical reports and certificates of capacity, together with correspondence with the insurer. In the main, these documents are not relevant to the issue of liability. This is except for a copy of the statutory benefits claim form which is discussed above.
It is clear from the evidence that the claimant has suffered significantly as a result of the accident. That, however, is not a factor that I can take into consideration when making a determination as to liability.
Submissions
Claimant’s submissions
The claimant in his reply form makes submissions that largely consist of a description of his injuries. He also explains that he is still not able to work properly on account of his injuries. He notes that the insurer had stopped covering his physiotherapy treatment which was assisting him to keep working. The claimant also notes that the insurer had ceased payment of income support and that he has a continued reduction of hours he is able to work compared to prior to the accident.
The submissions do not address the issue of liability. At the second teleconference,
I explained that whilst it is clear that he has suffered injury from the accident and issues arising therefrom continue, that itself is not something I can take into consideration when determining the issue of liability. When asked if he wanted to add anything to the issue of liability, the claimant stated that he did not understand how he could be considered to be at fault. In response, Mr Chatfield confirmed that the insurer did not consider the claimant to be at fault, but instead the legislation was such that he was not entitled to damages.Subsequent to the teleconference, on 14 June 2022 I received two written messages from the claimant. The first message explained that the claimant had recently attempted to help his mother. However, on the drive to her house he began to experience increased symptoms from his accident related injuries. The claimant expressed that he wished for me to know the impact the accident has had on him. Further details of his difficulties are given. The claimant makes note that he is not sure that the insurer had been paying him the correct level of weekly statutory benefits. In this regard, it is worth mentioning that the claimant does have an avenue to seek a review of the calculation of his past payments of statutory benefits. If the claimant has doubts about this aspect of his claim he should seek further guidance.
The second message dated 14 June 2022 mentions the claimant renewing his registration that morning and noticed that “the fund levy clause on my CTP green slip saying the levy was for ambulance, hospital, lifetime care & other services for people injured in motor accidents. Which I think I come under that description”.
The insurer’s submissions
The insurer submits that the claimant has no cause of action for common law damages in circumstances of a “no-fault motor accident” as defined by s 5.1 of the MAI Act, due to the claimant being both the owner and driver of the only vehicle involved.
In making this submission the insurer relies upon the case of Whitfield v Melenewycz [2016] NSWCA 235 (Melenewycz).
Reasons
There appears to be no doubt that the claimant has suffered injury, loss and damage as a result of the subject motor accident.
It is also uncontroversial amongst the parties that the claimant is not at fault for the accident.
Noting the circumstances of the accident involving a tree branch falling on the claimant’s moving vehicle, it is also clear that the accident meets the definition of a “no fault accident” under s 5.1 of the MAI Act. Such section is set out above.
The accident was not caused by the fault of the claimant and on the facts presented, no other person was at fault.
However, due to the subject accident being a single vehicle accident with the claimant being both the owner and driver, the claim for damages must fail.
In this regard, I refer to the case of Melenewycz as relied on by the insurer. The case is authority for the principle that a person injured in a motor accident as an owner/driver in a single vehicle accident is not entitled to common law damages.
The case of Melenewycz considered the “blameless accident” provisions set out in the MAC Act. Specifically, ss 7A and 7B. As mentioned above, such sections are essentially identical to ss 5.1 and 5.2 of the MAI Act.
Melenewcz involved a person injured who was riding a borrowed motorcycle when a kangaroo jumped onto the roadway and collided with the vehicle. It was accepted that the accident was a “blameless accident” as defined by s 7A of the MAC Act (equivalent to s 5.1 of the MAI Act). However, the plaintiff in that case failed as the court found that there must be fault in the use or operation of a motor vehicle causing the injury, and whilst s 7B of the MAC Act deems fault, the claim hinges on the injured person having common law rights. In this regard, Meagher JA said at paragraph 31:
“Had the respondent owned the motorcycle he could not have had a claim for damages against himself as owner…Section 7B deems fault for the purposes of a claim which depends on the claimant establishing liability under the common law. It does not deem liability. Under the common law a driver cannot have a claim in negligence against him or herself…”
Furthermore, Sackville AJA said at paragraph 53:
“The driver in a single vehicle accident will often be the owner of the vehicle. If the accident is not caused by the “fault” of the owner/driver in the use or operation of the vehicle and is not caused by the fault of any other person, the definition of “blameless motor accident” in s7A of the MAC Act is satisfied. Accordingly, the injury to the owner/driver, for the purposes of a claim for damages, is deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle (s7B(1)).
This deeming provision, however, does not suffice to give the owner/driver in a single vehicle blameless motor accident a right to claim damages under Part 1.2 of Chapter 1 of the MAC Act. Section 7B(1) does not say that the insurer of the owner/driver or any other person is liable to pay damages in respect of the injuries suffered by the owner/driver in the blameless motor accident. Deeming the owner/driver to be negligent, as Meagher JA has pointed out, does not permit the owner/driver to claim damages for the injuries he or she sustains in the blameless motor accident. That is because deeming a driver to be negligent in the use or operation of the motor vehicle does not entitle the driver to sue himself or to claim damages from a third party. It would require much clearer language than that used in s7B(1) of the MAC Act to construe the provision as conferring on the owner/driver in a single vehicle blameless motor accident case an entitlement to claim damages by reason of his or her own deemed negligence.”
On account of the wording in ss 5.1 and 5.2 of the MAI Act being essentially the same as ss 7A and 7B of the MAC Act, the above reasoning of the Court of Appeal must follow.
Accordingly, I make a finding that the subject accident satisfies the definition of a “no fault accident” for the purposes of s 5.1 of the MAI Act. However, as the owner and driver injured in a single vehicle motor accident, and noting the reasoning of the Court of Appeal in Melenewycz the claimant has no entitlement to make a claim for damages.
Costs and disbursements
The claimant is self represented. As such I make no award for legal costs.
Legislation
In making my decision I have considered the following legislation:
· MAI Act;
· The Motor Accident Injuries Regulation 2017, and
· MAC Act.
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