| 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
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.
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.
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.
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.
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…
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- Case
- [2025] NSWPIC 289
- Decision Date
CaseChat Overview and Summary
The court had to determine whether Thomas's driving caused the accident and, if so, the extent of his contributory negligence. The court examined the evidence and considered the insurer's propositions, including potential causes such as seizures, sleep apnoea, speed, and an animal on the road. The assessment was conducted on the papers without a hearing, given Thomas's self-representation. The court applied principles from previous cases, including AAI Limited t/as GIO v Evic, Australian Broadcasting Tribunal v Bond, Insurance Australia Limited t/as NRMA v Richards, Axiak v Ingram, Davis v Swift, and Serrao (by his Tutor Serrao) v Cornelius (No 2).
The court found that Thomas's manner of driving did cause the accident and that he was contributorily negligent. However, Thomas's departure from the standard of care did not reach the extreme end of the spectrum, justifying a 30% deduction in his entitlement to benefits. The court followed precedents to support its findings and concluded that Thomas's negligence was not so severe as to warrant a complete denial of benefits. The court ordered QBE Insurance to pay Thomas the statutory benefits, reduced by 30% for his contributory negligence.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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