Thomas v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER

CITATION:

Thomas v QBE Insurance (Australia) Limited [2025] NSWPIC 289

CLAIMANT:

Thomas

INSURER:

QBE Insurance (Australia) Limited

MEMBER:

Belinda Cassidy

DATE OF DECISION:

23 June 2025

CATCHWORDS:

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; insurer’s denial of liability for ongoing benefits under sections 3.11 and 3.28; claimant’s application under Schedule 2(3)(d) and (e); single vehicle accident; claimant had no memory of the accident; possibilities raised by insurer considered included seizures, sleep apnoea, speed, and animal on the roadway; assessment on the papers; claimant self-represented; Held – manner of driving caused the accident; claimant contributed to cause of accident; claimant’s departure from standard of care not the most extreme and did not justify 100% deduction; contributory negligence assessed at 30%; cases cited; AAI Limited t/as GIO v Evic as to approach to single vehicle accident fault disputes; Australian Broadcasting Tribunal v Bond, and Insurance Australia Limited t/as NRMA v Richards followed as to inferences and application of res ipsa loquitor; Axiak v Ingram, Davis v Swift, and Serrao (by his Tutor Serrao) v Cornelius (No 2) followed regarding assessment of contributory negligence in single vehicle accident cases.

DETERMINATIONS MADE:

CERTIFICATE

In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:

1.     For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.

2.     For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.

STATEMENT OF REASONS

INTRODUCTION

1. Tyson Thomas was involved in a motor accident on 20 March 2024. While the drivers of other vehicles stopped to render assistance to Mr Thomas, no other vehicle was involved in the accident. Mr Thomas was seriously injured and sustained multiple hip and right arm fractures.

2. On or about 3 April 2024, Mr Thomas made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with QBE the third-party insurer of Mr Thomas’ own vehicle.

3. On 11 July 2024 the insurer issued a liability notice to Mr Thomas denying liability to pay ongoing statutory benefits to him on the basis he was “wholly or mostly at fault”.

   
   

   Mr Thomas sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 21 August 2024, QBE affirmed the decision.

4. Mr Thomas has referred the issue of whether he is wholly or mostly at fault to the Personal Injury Commission (Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.

5. The proceedings have been allocated to me. I have held three preliminary conferences in the matter. At the last conference, on 16 June 2025 Mr Thomas indicated he had no further evidence and Mr Campbell declined the offer of the opportunity to put on…