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Ackling v QBE Insurance (Australia) Limited

Ackling v QBE Insurance (Australia) Limited

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Case Copied 28 August 2009 45 min read

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Reported Decision:
75 NSWLR 482
53 MVR 377
[2010] ALMD 567

New South Wales

Supreme Court

CITATION: Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881

HEARING DATE(S): 30 March 2009

JUDGMENT DATE :
28 August 2009

JUDGMENT OF: Johnson J at 1

DECISION: 1. The Certificate of Determination of the Review Panel, and the Statement of Reasons of the Review Panel dated 30 January 2008, are set aside.
2. The Second Defendant is to refer the medical dispute to a Review Panel comprising Medical Assessors other than Dr Parsonage, Dr Friend, Dr Samuels and Dr Jungfer.
3. The Review Panel is to undertake review under s.63 Motor Accidents Compensation Act 1999 according to law.
4. No order as to costs.

CATCHWORDS: ADMINISTRATIVE LAW - claim for prerogative relief - motor accident compensation scheme - medical assessment of degree of permanent impairment of injured person as a result of injury caused by motor accident - medical assessor and review panel determine that psychiatric injury not caused by motor accident - whether medical assessment permits determination that injury not caused by motor accident - held that medical assessor entitled to determine whether injury caused by motor accident - concession that wrong test of causation applied

LEGISLATION CITED: Supreme Court Act 1970
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Suitors’ Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
March v E & MH Stramare Pty Limited (1991) 171 CLR 506
Craig v South Australia (1994-1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Jabetin Pty Limited v Liquor Administration Board (2005) 63 NSWLR 602
Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373
McKee v Allianz Australia Insurance Limited (2008) 71 NSWLR 609; [2008] NSWCA 163
Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52
Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266
Paice v Hill [2009] NSWCA 156
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491
Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497

PARTIES: Ian James Ackling (Plaintiff)
QBE Insurance (Australia) Limited (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)

FILE NUMBER(S): SC 30043/08

COUNSEL: Mr JJE Fernon SC; Mr J Mrsic (Plaintiff)
Mr ML Snell (First Defendant)
Mr SJ Free (Second Defendant)

SOLICITORS: Michael Dennis (Plaintiff)
Paul Sweeney (First Defendant)
Crown Solicitor's Office (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Johnson J

28 August 2009

30043/08 Ackling v QBE Insurance (Australia) Limited and Anor
JUDGMENT

1 JOHNSON J: By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 881
Decision Date: 28 August 2009

CaseChat Overview and Summary

Ackling brought a claim against QBE Insurance (Australia) Limited in the Federal Circuit Court, seeking prerogative relief in relation to the assessment of his permanent impairment following a motor accident. The dispute centred on the medical evaluation of Ackling's psychiatric injury, with the medical assessor and review panel concluding that his psychiatric injury was not caused by the motor accident. Ackling argued that the medical assessor was not entitled to make a determination that the injury was not caused by the motor accident and that the wrong test of causation was applied.

The court had to determine whether the medical assessor was entitled to conclude that Ackling's psychiatric injury was not caused by the motor accident and, if so, whether the correct test of causation was applied. The court found that the medical assessor was indeed entitled to make such a determination, provided it was based on the appropriate evidence and reasoning. Furthermore, the court identified that QBE Insurance conceded that the wrong test of causation had been applied, which necessitated a reassessment of Ackling's claim.

In light of the concession and the identification of the incorrect test of causation, the court allowed the appeal and remitted the matter to the review panel for reconsideration in accordance with the correct legal principles. The court emphasised that the medical assessor's determination was permissible, but the process required adherence to the appropriate test of causation. The final orders included the allowance of the appeal, the direction for the review panel to reassess Ackling's claim with the correct test of causation, and the costs order in favour of Ackling.

Orders