Supreme Court New South Wales Medium Neutral Citation: QBE Insurance (Australia) Limited v Abberton [2021] NSWSC 588 Hearing dates: 13 May 2021 Date of orders: 25 May 2021 Decision date: 25 May 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The decision and certificate of the third defendant dated 10 November 2020 is set aside. (2) I remit the matter back to the Personal Injury Commission of New South Wales for reallocation to a different member for determination of the matter according to law. (3) I grant liberty to apply if any different orders are sought. Catchwords: ADMINISTRATIVE LAW – Whether reviewable error of law – Error of law on the face of the record – Decision of a claims assessor TRAFFIC LAW AND TRANSPORT – Traffic Law – Motor accident legislation – Application of s 3.37 Motor Accident Injuries Act 2017 (NSW) Legislation Cited: Motor Accident Injuries Act 2017 (NSW) Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 Category: Principal judgment Parties: QBE Insurance (Australia) Limited (Plaintiff) Michael William Abberton (First Defendant) State Insurance Regulatory Authority (Second Defendant) Maurice Castagnet in his capacity as a claims assessor of the Dispute Resolution Service of the State Insurance Regulatory Authority (Third Defendant) Representation: Counsel: J Gumbert with M J Jones (Plaintiff) Solicitors: McInnes Wilson Lawyers NSW (Plaintiff) File Number(s): 2021/37847 Publication restriction: Nil Judgment 1. By an amended summons which I granted leave to file, the plaintiff, QBE Insurance (Australia) Limited, seeks judicial review of a decision of a claims assessor of the Dispute Resolution Service of the State Insurance Regulatory Authority made on 10 November 2020. 2. The decision was made as part of the claims process mandated by the Motor Accident Injuries Act 2017 (NSW) ("the MAI Act"). The plaintiff seeks an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or certificate of the assessor, as well as an order in the nature of mandamus remitting the matter, the subject of the decision, to the Personal Injury Commission of New South Wales for reallocation to a different assessor. 3. The plaintiff names three defendants, each of whom has filed submitting appearances and were not represented at the hearing being: 1. Michael William Abberton ("the claimant") (the first defendant); 2. State Insurance Regulatory Authority NSW ("SIRA") (the second defendant); and 3. Maurice Castagnet in his capacity as a claims assessor as the third defendant ("the assessor"). 1. Despite the claimant's interest in the outcome of these proceedings, he merely filed a submitting appearance. I do not take that as a reflection of a lack of any interest in the outcome or acceptance of the plaintiff's case, but rather a reflection of the restrictions on costs under the current motor accidents scheme. 2. Jnana Gumbert of Counsel appeared with Matthew Jones of Counsel for the plaintiff. They provided helpful written and oral submissions. Background 1. The claimant sustained injuries in a single vehicle accident on 24 October 2019. Whilst travelling along Windeyer Road, Windeyer NSW at approximately 6.00pm, he lost control of his vehicle and veered off the road hitting a tree. He was ejected from the vehicle. He maintains that he lost control of the vehicle because a kangaroo suddenly appeared on the road in front of him. He attempted to avoid colliding with the kangaroo. 2. Following the accident, he was airlifted to Westmead Hospital. There is no mention in the Police report of the accident being caused by a kangaroo and a witness did not mention seeing a kangaroo but it is not clear that the witness noticed the vehicle before it started to veer off the road. Documents created at a time subsequent to the accident, including the claimant's statement, include a reference to the kangaroo. 3. Plainly, there is an issue between the claimant and the plaintiff as to whether there was a kangaroo but it is not my function to determine that issue. 4. The assessor made a decision in favour of the claimant on that issue and there is no challenge to that finding in these proceedings. 5. Subsequent to the accident, the claimant was issued with an infringement notice for driving with a low range PCA (BAC of 0.064). 6. Unlike earlier versions of the motor accidents scheme there is provision for both no-fault statutory benefits and fault-based damages under the MAI Act. They are not necessarily alternative entitlements but a claimant may pursue a claim for statutory benefits (akin to weekly benefits). 7. However, a claimant is only entitled to statutory benefits on a no-fault basis for a period of 26 weeks. A claimant ceases to be entitled to those benefits if the claimant was wholly or mostly at fault as set out in s 3.11 and s 3.28 of the MAI Act. 8. Further, as set out in s 3.37, no statutory benefits are payable to an injured person who commits a serious driving offence. Serious driving offence is a defined term. The claimant was charged with a serious driving offence. 9. On 1 November 2019 the claimant lodged an application for personal injury benefits with the plaintiff. Those benefits include the statutory weekly benefits and costs of reasonable and necessary treatment and care. At the time of the accident, the claimant was a carer to his spouse. He did not make a claim for weekly payments but sought benefits in respect of treatment and care. 10. On 28 February 2020 the plaintiff issued a liability notice giving notice to the claimant that it would cease paying statutory benefits on 24 April 2020 being 26 weeks from the date of his accident. The basis of this decision was the plaintiff's determination that the claimant was wholly at fault for the motor accident. 11. On 8 April 2020 the claimant sought a review of the decision. 12. On 1 May 2020 the plaintiff issued a certificate of determination confirming its original decision. 13. On 20 May 2020 the claimant lodged an application with the Dispute Resolution Service ("DRS") seeking a review of the plaintiff's decision. The matter was then referred to the assessor for that review. 14. On 10 November 2020 the assessor issued a Miscellaneous Claims Assessment Certificate in accordance with s 7.36(5) of the MAI Act. 15. As required, the assessor set out his findings in summary in the Miscellaneous Claims Assessment Certificate as follows: "The findings of the assessment of this dispute are as follows 1. For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of Part 5 the motor accident is a no-fault motor accident. 3. For the purposes of section 3.37 the insurer is not entitled to refuse payment of statutory benefits. …" 1. Attached to the Certificate is a document described as "Reasons for decision". 2. The plaintiff seeks review of that decision. The operation of the Scheme 1. The MAI Act is the latest version of the legislation governing the operation of the compulsory third-party and motor accident scheme in New South Wales. As is well-known, there have been a number of changes to the operation of the scheme since its introduction in 1989 as a replacement for the ordinary entitlement of injured persons to claim damages arising out of the negligence of owners and drivers of motor vehicles, all of whom were insured prior to 1989 by the old Government Insurance Office. 2. As set out in the objects of the MAI Act (s 1.3), the Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents. Having said that, the objects of the Act are similar to the objects of the earlier legislation and, indeed, many of the provisions of the Act are similar to the earlier provisions. 3. Section 1.9 of the MAI Act (formerly s 3A of the Motor Accidents Compensation Act 1999 (NSW)) ("MACA") specifies the general restrictions on the application of the Act. It is the "governing provision for the application of the Act" [1] . 4. It is a gateway provision. 5. The provisions of the Act do not apply unless s 1.9 is satisfied. 6. The scope of the Act is limited by the definition of "motor accident". 7. Motor accident is defined in s1.4 of the Act as follows: motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during— (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. The entitlement to statutory benefits as set out in Part 3 of the MAI Act 1. The entitlement to statutory benefits is set out in Part 3 of the MAI Act. An entitlement to statutory benefits was not part of the motor accident scheme in earlier legislation. 2. Relevantly, for the purposes of this case, the new scheme provides for payment of statutory benefits on a no-fault basis for a period of 26 weeks. 3. The governing provision for payment of statutory benefits is set out in s 3.1 as follows: 3.1 Statutory benefits payable in respect of death or injury resulting from motor accident (1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part. (2) Statutory benefits are payable (except as otherwise provided by this Part)- (a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or (b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable. 1. Statutory benefits are only payable if the death or injury results from a motor accident. Statutory benefits are payable whether or not the motor accident was caused by the fault of the owner or driver and even if the motor accident was caused by the injured person. 2. Statutory benefits are payable by the relevant insurer (s 3.2), in this case, being the plaintiff. 3. The Act provides for payment of benefits during different entitlement periods and for minimum and maximum weekly payments (s 3.6 to s 3.10). However, that no-fault entitlement exists only for a period of 26 weeks after the motor accident. Weekly payments will cease for persons mostly at fault for the accident or with minor injuries as set out in s 3.11. Section 3.11(2) specifies that a motor accident was caused mostly by the fault of the person if the contributory negligence of the person in relation to the motor accident was greater than 61 per cent. 4. Section 3.12 then further limits the entitlement to weekly payments to maximum periods, depending on whether the person is pursuing a claim for damages or the person's permanent impairment. 5. Division 3.4 governs statutory benefits for treatment and care. In this matter, the claimant sought payment of statutory weekly benefits and statutory benefits for treatment and care. 6. Division 3.5 governs the restrictions and limitations on statutory benefits such as: 1. if the claimant is entitled to payments under the Workers Compensation Act 1987 (NSW) (s 3.35); 2. if the vehicle is uninsured (s 3.36); and 3. relevantly, for the purposes of this matter, if the injured person was charged with a serious driving offence (s 3.37). 1. Although there were a number of issues for determination by the assessor, the issue in these proceedings relates to the assessor's findings in respect of s 3.37. The assessor's determination 1. The assessor was a claims assessor of the SIRA Dispute Resolution Service. He is now termed a member of the Personal Injury Commission of New South Wales. 2. As identified by the plaintiff, although the claims assessment matters that required determination were not necessarily well defined, there were three issues for determination being: 1. whether, for the purposes of s 3.28 of the Act, the plaintiff was entitled to cease paying statutory benefits to the claimant, on the basis that the accident was caused wholly or mostly by the fault of the claimant; 2. whether, for the purposes of Part 5 of the Act, the accident was a no-fault motor accident; and 3. whether the plaintiff was entitled to refuse payment of statutory benefits under s 3.37 of the Act, on the basis that the claimant had been charged with, or convicted of, a serious driving offence that was related to the motor accident. 1. Each of the matters were miscellaneous claims assessment matters pursuant to Schedule 2 of the MAI Act. 2. The matter was referred to the assessor for determination under Schedule 2(3)(e) of the MAI Act. That is, the determination of whether the motor accident was caused mostly by the fault of the claimant was referred to the assessor. However, as the assessor observed, after he conducted teleconferences with the parties, it became apparent that there were two further issues for determination being: 1. whether the claimant was involved in a no-fault or blameless accident within the meaning of s 5.1 of the MAI Act; and 2. whether the plaintiff was entitled to refuse payment of statutory benefits on the basis that the claimant had committed a serious driving offence within the meaning of s 3.37 of the Act. 1. As the assessor notes, he considered all of those issues and made his determination under Schedules 2(3)(e), (f) and (g1) of the MAI Act. 2. One of the grounds for judicial review identified in the summons was a denial of procedural fairness in relation to the decision in respect of s 3.37 but Ms Gumbert suggested during oral submissions that it would only be necessary for me to consider that ground if I was not satisfied of the error of law in respect of the assessor's findings in respect of s 3.37. 3. Indeed, Ms Gumbert also specifically limited the grounds of the challenge to the assessor's decision on the basis that the plaintiff had apparently agreed with the claimant that the Court would not be asked to make any findings of the meaning of "relates to" and "related to" in s 3.37. Ms Gumbert observed that there was a difference of opinion as to whether those words require a causal relationship or merely some type of indirect association. It had been agreed that that issue did not arise for determination in this matter. 4. Bearing in mind that the defendants all filed submitting appearances, I will limit my determination to the issue arising under s 3.37(3) of the MAI Act. 5. The plaintiff submits the assessor's decision as to s 3.37 did not turn on whether the serious driving offence related to the driving of the motor vehicle (that is the s 3.37(3)(a) issue) but rather it turned on the construction of s 3.37(3)(b) being whether the motor vehicle was involved in the motor vehicle accident that caused the person's injury. 6. The assessor found that the claimant was charged with a serious driving offence within the meaning of s 3.37(5). That offence was the driving of a motor vehicle with a low range PCA, being a BAC reading of 0.064. The assessor found that he was required to proceed on the basis that the claimant had committed a serious driving offence within the meaning of s 3.37(5). 7. However, the assessor rejected the plaintiff's submission that once it had established that the claimant had been charged with a serious driving offence, s 3.37(1) operated to disentitle payments of statutory payments to the claimant. 8. The assessor acknowledged that s 3.37(3) provides that a serious driving offence is considered to be related to the accident only if: 1. the offence relates to the driving of the motor vehicle by the injured person; and 2. the motor vehicle that was involved in the motor accident had caused the person's injury. 1. The assessor was not satisfied that s 3.37(3)(b) applied. It is that finding which the plaintiff seeks to challenge. Indeed, having regard to the submissions of the plaintiff in this Court, it is only that finding that I am asked to review. 2. The assessor made the following findings: "139. The causal elements of the definition that are underlined are not satisfied in this case. In particular, the claimant's use of his vehicle did not cause his injury. It follows that the claimant's motor vehicle was not involved in the motor accident that caused his injury and ss 3.37(3)(b) is not satisfied. 140. In the present case, the claimant swerved to avoid a collision with a kangaroo. I have found that the motor accident is a 'no-fault motor accident' for the purpose of s 5.1. 141. I am fortified in my conclusion concerning ss 3.37(3)(b) by consideration of s 3.38 of the Act. Subsection 3.38(2) provides that a finding of contributory negligence must be made in the following cases: (a) Where the injured person has been convicted of an alcohol or other drug related offence in relation to the motor accident, unless the injured person satisfied the insurer or the Dispute Resolution Service that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident … (b) …. 142. At ss 3.38(6), an alcohol or other drug related offence is defined to include PCA offences. 143. If the insurer's submission is correct, s 3.38 could have no operation in cases of PCA offences. The claimant would not be entitled to statutory benefits and no occasion to consider contributory negligence under this provision would arise. 144. I find that the serious driving offence was not related to the motor accident, and the claimant is not disentitled to payment of statutory benefits by reason of his commission of a serious driving offence." The plaintiff's contentions 1. The plaintiff contends that the assessor's findings that the claimant's use of his vehicle did not cause his injury and that the claimant's motor vehicle was not involved in the motor vehicle accident that caused his injury must be erroneous because this was a single vehicle motor accident. 2. The plaintiff contends that having regard to s 1.9, the Act does not apply unless there was an injury resulting from the use of a motor vehicle. As the claimant's motor vehicle was the only motor vehicle involved in the accident, it must follow that the claimant's injury resulted from the use of his own motor vehicle. 3. The plaintiff submits that: 1. there have been errors of law on the face of the record; and/or 2. there have been jurisdictional errors; and/or 3. there has been a constructive failure to exercise a statutory power. Consideration 1. The claims assessor's certificate and reasons form part of the record. The procedures in respect of claims assessment are set out in Part 7 Division 7.6 of the MAI Act. The assessor was required to issue a certificate in respect of his assessment (s 7.36). Further, the assessor was required to attach a brief statement to the certificate setting out the reasons for the assessment. The assessor identifies that he has done so in accordance with s 7.36(4) and s 7.36(5). 2. In Pham v NRMA Insurance Ltd [2] the Court of Appeal considered the assessor's certificate in the context of the equivalent provision of MACA (s 94(5)). Leeming JA at [27] observed: " … A very clear way of causing the reasons to form part of the record is for statute to require reasons to be given and to be attached to the certificate …" 1. I accept that the assessor's reasons form part of the record. 2. There is no contradictor in this matter. It is only necessary to consider whether there was an error of law in the reasons of the assessor for there to be an error of law on the face of the record (see s 69(4) of the Supreme Court Act 1970 (NSW)). 3. Further, as requested by the plaintiff, I will limit my consideration to the assessor's finding and reasons in respect of subsection 3.37(3). 4. As set out in s 3.37(1), statutory benefits are not payable to an injured person after the person has been charged with or convicted of a serious driving offence that was related to the motor accident. 5. Section 3.37(3) specifies the circumstances in which a serious driving offence with which an injured person is charged or convicted is considered to be related to a motor accident. It is only related to a motor accident if: 1. the offence relates to the driving of a motor vehicle by the injured person, and 2. the motor vehicle was involved in the motor accident that caused the person's injury. 1. The claimant was charged with a low range PCA offence. Plainly, that offence relates to the driving of the motor vehicle by the claimant. The only remaining question is thus whether the motor vehicle was involved in the motor accident that caused the person's injury. 2. The reference to "the motor vehicle" in s 3.37(3)(b) is a reference to the same motor vehicle as is referred to in s 3.37(3)(a). Further, the use of the conjunctive "and" mandates that a serious driving offence can only be considered to be related to a motor accident if (a) and (b) are satisfied. 3. A person charged with a PCA offence is charged with an offence that relates to the driving of the motor vehicle. It is not an offence to own a motor vehicle whilst under the influence of alcohol. It is only an offence to drive a motor vehicle whilst under the influence of a certain level of alcohol. 4. The motor vehicle, being the motor vehicle referred to in s 3.37(3)(a) which the claimant was driving, must be the motor vehicle which was involved in the motor accident that caused the person's injury. 5. "Motor accident" is defined to mean an incident or accident involving the use or operation of a motor vehicle that caused the death or injury to a person in the circumstances as set out in the definition in s1.4 of the MAI Act. The definition of motor accident thus necessarily requires that there be the use or operation of a motor vehicle that causes the injury. If there is no accident involving the use or operation of a motor vehicle that causes the injury, then there is no motor accident as that term is defined. 6. In this matter there was only one motor vehicle. It was the motor vehicle being driven by the claimant. Irrespective of whether the claimant veered off the side of the road because of the presence of a kangaroo or for some other reason, the motor accident was a single vehicle motor accident. The only motor vehicle which was involved which could satisfy the definition of motor vehicle was the claimant's motor vehicle. It was that motor vehicle which the claimant was driving to which the offence relates. It was that motor vehicle which was involved in the motor accident that caused the claimant's injury. 7. The problem with the assessor's approach is that he has, in effect, found that there was no motor accident. He did so by finding that the use of the claimant's vehicle did not cause his injury [3] . He then went on to find that the claimant's motor vehicle was not involved in the motor accident that caused his injury. A finding that a motor accident is a no-fault motor accident does not overcome the general restrictions on the application of the Act as set out in s 1.9 or the definition of "motor accident" as contained in s 1.4. 8. The hearing was conducted on the basis of submitting appearances. On the basis that the meaning of the term "was related to the motor accident" in s 3.37(1) is not in issue in these proceedings, I am only required to consider the very limited point relating to the assessor's consideration of s 3.37(3)(b). 9. I accept the plaintiff's submission that the only motor vehicle that was involved in the motor accident was the claimant's motor vehicle which he was driving at the time of the commission of the offence. 10. Contrary to the assessor's finding, it was that motor vehicle that was involved in the motor accident that caused the claimant's injury. There was no other motor vehicle involved in the accident and thus no scope for the finding made by the assessor. 11. The assessor erred in his construction of s 3.37(3). He considered that having made a finding that the accident was not caused by the fault of the claimant and was a no-fault accident, then s 3.37(3)(b) could not be satisfied. This was an error of law on the face of the record. 12. In those circumstances, the plaintiff is entitled to succeed. As submitted by the plaintiff, it is not necessary that I consider any further grounds. 13. I make an order setting aside the decision and certificate of the third defendant dated 10 November 2020. I remit the matter back to the Personal Injury Commission of New South Wales for reallocation to a different member for determination of the matter according to law. 14. I make no order for costs. 15. I grant liberty to apply if any different orders are sought. ********** Endnotes 1. Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 at [60] (Tobias AJA, Beazley JA and Sackville AJA agreeing) 2. (2014) 66 MVR 152; [2014] NSWCA 22. 3. Para 139 of Reasons for Decision – Miscellaneous Claims Assessment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2021