QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588

QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588

The assessor erred in law by construing s 3.37(3)(b) as not satisfied after finding the accident was not caused by the claimant's fault and was a no-fault accident. In a single vehicle accident involving only the claimant's vehicle, the vehicle the claimant was driving and to which the PCA offence related was the motor vehicle involved in the motor accident that caused his injury. The contrary finding effectively denied that there was a motor accident within the statutory definition and was an error of law on the face of the record.

Jurisdiction
Australia
Judgment Date
25 May 2021
Procedural Posture
Judicial Review of a Claims Assessor's Decision Under the Motor Accident Injuries Act 2017 (nsw) / Amended Summons; Principal Judgment After Hearing
Outcome
Plaintiff succeeded; the decision and certificate were set aside and the matter was remitted for determination according to law by a different member.
Legal Topics
['error of Law on the Face of the Record' 'judicial Review of Claims Assessor Decision' 'statutory Benefits' 'serious Driving Offence' 'section 3.37 Motor Accident Injuries Act 2017 (nsw)' 'single Vehicle Motor Accident']
['administrative Law' 'traffic Law and Transport' 'motor Accident Injuries'] ['error of Law on the Face of the Record' 'judicial Review of Claims Assessor Decision' 'statutory Benefits' 'serious Driving Offence' 'section 3.37 Motor Accident Injuries Act 2017 (nsw)' 'single Vehicle Motor Accident']

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Procedural Posture

Judicial Review of a Claims Assessor's Decision Under the Motor Accident Injuries Act 2017 (nsw) / Amended Summons; Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the assessor made an error of law on the face of the record in construing s 3.37(3)(b) of the Motor Accident Injuries Act 2017 (NSW).' "Whether the claimant's motor vehicle was involved in the motor accident that caused his injury for the purposes of s 3.37(3)(b)." 'Whether the decision and certificate dated 10 November 2020 should be set aside and the matter remitted.']

Ratio Decidendi

The assessor erred in law by construing s 3.37(3)(b) as not satisfied after finding the accident was not caused by the claimant's fault and was a no-fault accident. In a single vehicle accident involving only the claimant's vehicle, the vehicle the claimant was driving and to which the PCA offence related was the motor vehicle involved in the motor accident that caused his injury. The contrary finding effectively denied that there was a motor accident within the statutory definition and was an error of law on the face of the record.

Court Disposition

Plaintiff succeeded; the decision and certificate were set aside and the matter was remitted for determination according to law by a different member.

Orders

  • ['The decision and certificate of the third defendant dated 10 November 2020 is set aside.' 'The matter is remitted back to the Personal Injury Commission of New South Wales for reallocation to a different member for determination of the matter according to law.' 'No order for costs.' 'Liberty to apply if any...