Merit Reviewer Finds Damages Claim not “Pending” Because Driver Can’t Sue Himself

In Brief

• Section 3.12 of the Motor Accident Injuries Act 2017 provides that a claimant’s entitlement to weekly benefits terminates at 104 weeks unless they have a pending claim for damages.
• A claim for damages is not “pending” if it is a legal nullity from the outset.
• A claim for damages arising from a single vehicle accident, where the driver owns the vehicle, is likely to be a legal nullity because the claimant cannot sue themselves.

Facts

The decision in Thomas v QBE Insurance (Australia) Limited [2026] NSWPICMR 16  was delivered on 4 May 2026 and published on 15 May 2026.

The Claimant was injured in a single vehicle motor accident on 20 March 2024 when he failed to take a sweeping left hand bend in wet conditions. The Claimant owned the vehicle he was driving.

The Claimant made both a claim for statutory benefits and damages.

On 23 June 2024, a PIC Member determined that the Claimant was entitled to ongoing statutory benefits, beyond 52 weeks, because his contributory negligence – measured by reference to the extent to which he departed from the required standard of care – should be assessed at 30%.

In the damages claim, the Insurer denied liability on the grounds that the Claimant could not make a damages claim against his own policy.

The Insurer subsequently determined that the Claimant was only entitled to weekly benefits, pursuant to section 3.12 of MAIA, because there was no pending claim for damages.

The Claimant sought merit review of the decision to terminate his weekly benefits at 104 weeks. He argued that he was entitled to at least 156 weeks of weekly benefits because he had lodged a damages claim.

The Merit Reviewer’s Decision

The Merit Reviewer affirmed the Insurer’s decision that the Claimant was only entitled to 104 weeks of weekly benefits for the following reasons:

• The legal test in the most-at-fault dispute is different from the legal test in the damages claim. The only issue in the most-at-fault decision was whether the Claimant’s contributory negligence exceeded 61%. It follows that a Claimant may be entitled to ongoing statutory benefits even if they were injured in a single vehicle accident where no other party was at fault.
• Whilst the Claimant had asserted a claim for damages, that claim is only “pending”, within the meaning of s 3.12(2)(a) if the Claimant has an entitlement to damages.
• Pursuant to Part 4 and Part 5, the Claimant only has a viable claim for damages if his injuries were caused by the fault of the owner or driver of a vehicle or if he was injured in a no-fault accident.
• Given that the Claimant was the driver of a vehicle he owned, his injuries were not caused by the fault of another owner or driver.
• Given that the Claimant’s own act or omission contributed to the cause of the accident, s 5.4 precludes a “no-fault” accident claim pursuant to Part 5.
• It follows that the claim for damages is effectively a nullity because it has no prospects of success.
• It further follows that there is no pending claim for damages because the claim for damages is a legal nullity from the outset.

Why This Case is Important

The decision in Thomas confirms that a claimant cannot extend their entitlement to weekly benefits from 104 weeks to at least 156 weeks, and potentially to 260 weeks if their WPI exceeds 10%, merely by lodging a Claim for Damages under Common Law.

The claim for damages is not “pending” for the purpose of section 3.12(2)(a) of MAIA unless it has legal substance.

In general terms, a driver injured in a single vehicle accident is unlikely to have a legally viable claim for damages if they were driving a vehicle they owned. They cannot sue themselves.

Even if the driver in a single vehicle accident is driving a vehicle owned by somebody else, they will only have a viable damages claim if:

• The owner’s want of care made a material contribution to the accident (for example, because the accident was caused by a mechanical fault which a reasonable owner would have identified and repaired).
• The accident falls within the definition of a “no-fault” accident in s 5.1 and 5.4 does not preclude the driver because no act or omission contributed to the cause of the accident (for example, a tree falling on the vehicle, without warning, as the vehicle passes).

It follows that, in most single vehicle accidents, the claimant will not have a viable damages claim and the administrative act of lodging a damages claim form does not extend their entitlement to weekly benefits beyond 104 weeks.