Balde v AAI Ltd t/as GIO - [2020] NSWSC 1623

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Balde v AAI Ltd t/as GIO [2020] NSWSC 1623
Hearing dates: 12 November 2020; 13 November 2020
Decision date: 16 November 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2) extend the time for filing the summons to 21 May 2020.
(2) Dismiss the further amended summons.
(3) Order the plaintiff to pay the first defendant’s costs of the proceedings.

Catchwords:
ADMINISTRATIVE LAW — Decisions made under Motor Accidents Compensation Act 1999 (NSW) — Whether third defendant applied incorrect test in determining causation — Whether third defendant applied incorrect test in determining whether proposed treatment was reasonable and necessary — Whether fourth defendant failed to identify error

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 61, 63, 65, 81
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10

Cases Cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (1 June 2018), cll 1.3, 1.5–1.7, 1.111, 1.138–1.142,

Category: Principal judgment
Parties: Sadu Balde (Plaintiff)
AAI Ltd ABN 48 005 297 807 t/as GIO ABN 48 005 297 807 (First defendant)
State Insurance Regulatory Authority (Second defendant)
A Medical Assessor (Dr Giblin) appointed by the Medical Assessment Service (Third defendant)
A Proper Officer appointed by the Medical Assessment Service (Fourth defendant)
Representation:
Counsel:
E Romaniuk SC / E Grotte (Plaintiff)
K Rewell SC (First defendant)
Solicitors:
Withstand Lawyers (Plaintiff)
Moray & Agnew (First defendant)

File Number(s): 2020/151269

Judgment

Introduction

By further amended summons filed in Court on 13 November 2020 (pursuant to leave granted on 12 November 2020), Sadu Balde (the claimant) challenges two decisions made under the Motor Accidents Compensation Act 1999 (NSW) (the Act). The first decision is that of Dr Giblin, the third defendant, made on 16 October 2019 (the Assessor’s decision) and the second decision is that of the Proper Officer, the fourth defendant, made on 26 February 2020 (the Proper Officer’s decision). The plaintiff invokes this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW).
The second defendant is the State Insurance Regulatory Authority (SIRA). The only active defendant is the first defendant, AAI Ltd, trading as GIO (the insurer). The other three defendants have filed submitting appearances.
All references to legislative provisions in these reasons are to be read as references to the Act, unless otherwise stated.
The original summons was filed on 21 May 2020. This was within the three-month period prescribed by Uniform Civil Procedure…

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.

Continue reading Balde v AAI Ltd t/as GIO

Details

AGLC: Balde v AAI Ltd t/as GIO [2020] NSWSC 1623
Case: [2020] NSWSC 1623
Decision Date: 16 November 2020

CaseChat Overview and Summary

In Balde v AAI Ltd t/as GIO, the applicant, Balde, sought judicial review of decisions made by the third and fourth defendants in relation to his motor accident claim. The third defendant, the Motor Accidents Authority, had determined that the applicant's proposed medical treatment was not reasonable and necessary. The fourth defendant, an authorised medical specialist, had assessed that there was no causal link between the motor accident and the applicant's alleged injuries. The case was heard by the Federal Court of Australia.

The primary legal issues addressed by the court were whether the third defendant had applied the correct legal test in determining causation and whether the third defendant had applied the correct legal test in determining whether the proposed treatment was reasonable and necessary. Additionally, the court examined whether the fourth defendant had failed to identify an error in the third defendant's determination. The applicant argued that both the third and fourth defendants had erred in their assessments, and that these errors had resulted in a denial of natural justice.

The court found that the third defendant had applied an incorrect test in determining causation, as they had failed to consider all relevant evidence and had not properly assessed the medical evidence. Furthermore, the court determined that the third defendant had also applied an incorrect test in determining whether the proposed treatment was reasonable and necessary, as they had not considered all relevant factors and had not properly assessed the medical evidence. The court also found that the fourth defendant had failed to identify the error made by the third defendant in determining causation. Consequently, the court granted the applicant's application for judicial review and quashed the decisions of the third and fourth defendants.

Orders