In QBE Insurance (Australia) Limited v Lay  NSWSC 1433, the matter before the Supreme Court was the insurer’s application for judicial review of the Merit Reviewer’s decision and the President’s Delegate’s decision regarding the claimant’s entitlement to extended weekly payments under s 3.12 of the Motor Accident Injuries Act 2017 (NSW) (MAIA).
The claimant was the driver and owner of a car in a single motor vehicle accident – a tree fell on his car as he was driving. He brought a claim for statutory benefits.
Section 3.12 of the MAIA provides that the maximum weekly payment period is 104 weeks, unless the person’s injury is the subject of a pending claim for damages (whether or not the insurer has accepted liability).
The claimant sought to extend his weekly payment period beyond 104 weeks by making a claim for damages.
The insurer refused his damages claim and refused to extend his weekly payment period on the basis that the circumstances of his accident preclude him from making a claim for damages.
The claimant referred the dispute to the Personal Injury Commission for merit review. The claimant argued that he did have a pending claim for damages because there was a lawful basis for lodging the application for damages. The insurer disputed that the claimant had a lawful basis for making a damages claim.
The Merit Reviewer found in favour of the claimant, citing two reasons:
The insurer’s application to refer the dispute to the Merit Review Panel was dismissed by the President’s Delegate.
The insurer sought judicial review of the Merit Reviewer’s decision and the President’s Delegate’s decision.
The insurer argued that the Merit Reviewer erred in the following ways:
The Insurer argued that the President’s Delegate’s erred in:
Harrison AsJ confirmed that the no-fault provisions deem one element of negligence (fault) on the part of the owner or driver, but the claimant still must prove the other elements of negligence, including a relevant duty of care.
Further, per s 4.1 of the MAIA, the entitlement to claim damages requires fault to be established in the causative use or operation of the vehicle by the owner or driver of the vehicle.
In the present case, the only causative use of the motor vehicle was the claimant’s own driving. As he cannot make a claim against himself, there is no common law claim available to the claimant.
Harrison AsJ accepted each of the insurer’s grounds of review regarding the Merit Reviewer’s decision and the President’s Delegate – or alternatively, any of, or any combination of the grounds.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Senior Associate Qiming Zhou today.
On 24 November 2023 The Personal Injury Commission released its decision in Kouchekisheikhani v Allianz Australia Insurance Limited  NSWPIC 597. The Claimant alleges he was standing behind a parked car and that the Insured vehicle ran over his foot. The Insurer alleges the Claimant walked into the path of the Insured vehicle.
In its decision regarding Black Head Bowling Club Ltd v Harrower  NSWCA 267, the New South Wales Court of Appeal has dismissed an appeal by Black Head Bowling Club against a finding that it was negligent for failing to hire an engineer to verify the stability of an ANZAC monument, which tragically fell and killed a 3-year-old.