QBE Insurance (Australia) Limited v Zafar [2025] NSWPIC 353; (25 July 2025)

QBE Insurance (Australia) Limited v Zafar [2025] NSWPIC 353

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application for exemption; complex legal or factual issues; denial of liability; contributory negligence 100%; blood alcohol concentration; multiple witnesses required; expert evidence considered including traffic engineer, pharmacologist, and investigators; evidence likely to take in excess of two days; no material in respect to negligence lodged by claimant; claimant does not oppose application; - exemption is appropriate considering all circumstances; recommendation that claim is not suitable pursuant to section 7.6; recommendation subsequently approved by the Division Head, as the President's delegate.

The claimant is a 26-year-old man who has injured a motor vehicle accident on 2 June 2023. The insurer seeks a discretionary exemption from the Personal Injury Commission pursuant to section 7.34 of the Motor Accident Injuries act ( 2017) (MAIA). The basis of the insurers application is rule 99 of the Personal Injury Commission rules 2021 (the rules) in that this matter involves complex legal or factual issues or complex issues in the assessment of the amount of the Damages. The claimant neither consents to nor opposes the insurers application.

The claimant was a pedestrian and was crossing Railway Street Lidcombe at approximately 10:40pm on 2 June 2023. The claimant was struck by the insurers motor vehicle and sustained very significant injuries.
The application for Personal Injury Benefits states the claimant sustained cranium fractures, brain bleeds, neck fracture, abrasions, and psychological injury.
The insured driver states that he only saw the claimant when he was 2 metres away from his vehicle and was unable to take any steps to avoid striking the claimant.
The insurer has denied liability and, in the alternative, alleged contributory negligence of 100% in support of the application, the insurer notes the following:
- The claimant returned a blood alcohol concentration, some 19 hours after the accident, of 0.124G/100 ML. The insurer has submitted that this is indicative of a blood alcohol concentration at the time of the accident that may had been excess of 0.315.
The insurer has submitted that there will be significant complexity in establishing what the claimant's blood alcohol reading was at the time of the accident and as to what affect this would have on the claimant and his role or responsibility for the injuries he sustained in the motive vehicle accident.
The insurer has identified up to 10 witnesses who would need to give evidence in this matter. They include their insured driver, his passengers, two witnesses present at the scene of the accident, the investigating police officer, a traffic engineer, and a pharmacologist. Accordingly, the insurer has submitted that this is a matter which could not reasonably be conducted at the Personal Injury Commission as the number of witnesses would mean that the matter is likely to take in excessive of two days.
The insurer has denied any liability on the part of its insurer. Accordingly, it is for the claimant to prove any negligence on the part of the insurer and, to date no material has been provided which addresses this issue by the claimant.
Further the insurer has alleged contributory negligence which, if found to be an excessive 60%, would mean that the claimant has no entitlement to common-law damages.
The allegations of contributary negligence including failure to wait for the insured vehicle to pass, wearing dark clothing whilst trying to cross the road at night, failure to keep proper lookout, placing himself in a position of danger, failing to signal or alert the driver of an intention to cross in front of the path of the insured vehicle and that the claimant was seeking to cross the road when his was severely impaired as a consequence of alcohol ingestion.
The insurer submits that, should negligence to be found against the insured driver, the circumstances of the accident would give rise to finding of contributory negligence of over 60%.

I agree with the insurer's submission. Whilst liability between a pedestrian and a motor vehicle can usually be determined quickly and fairly, this matter holds particular difficulty. The question of the degree impairment suffered by the claimant as a consequence of his blood alcohol rating is one which, quite reasonably, is a matter for an expert opinion. This is particularly so with a blood alcohol reading which is both high and uncertain.
If this matter were to be properly ventilated at court a reasonable opportunity would be given to both parties to question relevant witnesses in this matter extensively and without limitation. There are lay witnesses and 3, possibly 5, expert witnesses. This would certainly mean that the matter cannot be reasonably assessed in 3 to 5 hours. I agree with the insurer this is a matter which is likely to take a number of days.
The claimant has indicated that they neither consent nor oppose this application.
No material has been forthcoming from the claimant to address the matters raised by the insurer. In these circumstances it can be stated that the claimant is not opposing the insurer's application but does not consent to it.

The documents I have considered are those listed in, and attached to, the application together with the information and submissions provided by the parties at the assessment conference.

Having made a preliminary assessment of this claim I determine for the reasons set out above the claimant is not suitable for assessment under section 7.34 (i)(b) of the Motor Accidents Injuries Act 2017. I recommend to the president that this claim be exempt from assessment.

Accident Injuries Act 2017

Motor Accidents Injuries Act 2017

QBE Insurance (Australia) Limited v Zafar [2025] NSWPIC 353;

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QBE Insurance (Australia) Limited v Zafar [2025] NSWPIC 353; (25 July 2025)

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Legislation Cited (2)