QBE Insurance (Australia) Limited v Walker - [2022] NSWPIC 338

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 338
Decision Date: 29 June 2022

CaseChat Overview and Summary

In the matter of QBE Insurance (Australia) Limited v Walker, the court was tasked with determining the issue of liability in a motor accident claim brought by the Claimant, Walker. The Claimant, who was unrepresented and was the owner and driver of the vehicle, was injured when a tree fell on his vehicle during a storm. The central issue was whether Walker could bring a claim for damages against QBE Insurance (Australia) Limited, despite the incident being classified as a "no-fault" accident under section 5.1 of the Motor Accident Injuries Act 2017.

The primary legal question before the court was whether the Claimant could seek damages in the circumstances of a no-fault accident, where the legislation typically precludes such claims. The court examined the case of Whitfield v Melenewycz to ascertain whether the Claimant's situation fell outside the scope of the statutory exceptions that permit claims for damages. The court had to determine if Walker's case constituted an exceptional circumstance warranting a departure from the usual no-fault regime.

The court ultimately found that Walker was not entitled to bring a claim for damages. It was held that the circumstances of the accident did not present an exceptional case that would permit a claim under the Motor Accident Injuries Act 2017. The decision underscored the legislative intent to limit claims to instances explicitly outlined in the Act, and Walker's situation did not satisfy any of these criteria. Consequently, the court dismissed the claim, affirming the legislative framework's applicability to the Claimant's circumstances.

Orders