Behrens v Nguyen - [2017] QSC 14

SUPREME COURT OF QUEENSLAND

CITATION:

Behrens v Nguyen & Anor [2017] QSC 14

PARTIES:

OLIVER BEHRENS

(plaintiff)

v
THANH AN NGUYEN
(first defendant)
v
TRANSPORT ACCIDENT COMMISSION
(second defendant)

FILE NO/S:

BS No 8027 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2016

JUDGE:

Burns J

ORDER:

The parties are directed to bring in minutes of order to reflect these reasons.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff brought a claim for damages for personal injury from a motor vehicle accident – where the plaintiff was, at the request of the defendant insurer, examined for medico-legal purposes by a range of medical experts including an orthopaedic surgeon – where the defendant insurer wanted the plaintiff to undergo a further examination by a different orthopaedic surgeon – where the plaintiff refused – where the defendant insurer sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable or unnecessarily repetitious to require the plaintiff to undergo the further examination

INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the plaintiff brought a claim for damages for personal injury from a motor vehicle accident – where the plaintiff was, at the request of the defendant insurer, examined for medico-legal purposes by a range of medical experts including an orthopaedic surgeon – where the defendant insurer wanted the plaintiff to undergo a further examination by a different orthopaedic surgeon – where the plaintiff refused – where the defendant insurer sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable or unnecessarily repetitious to require the plaintiff to undergo the further examination

Motor Accident Insurance Act 1994 (Qld), s 3, s 45, s 46A, s 47, s 50

Jackson v State of Queensland [2005] QSC 161, applied

RACQ Insurance Ltd v Wilkins [2010] 2 Qd R 552, followed

Whiting v FAI General Insurance Company Ltd & Rayner [1999] QCA 214, cited

COUNSEL:

S C Williams QC for the applicant second defendant

M Grant-Taylor QC for the respondent plaintiff

SOLICITORS:

Moray & Agnew for the applicant second defendant

Murphy Schmidt for the respondent plaintiff

One of the objects of the Motor Accident Insurance Act 1994 (Qld) is to “encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents”.[1] This object is sought to be achieved in various ways but among them are the provisions of Division 4 of Part 4 of the Act which provide for cooperation between claimants and insurers. Thus, by s 45, a claimant must cooperate with the insurer and, in particular, provide…

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 Behrens v Nguyen

Details

AGLC: Behrens v Nguyen [2017] QSC 14
Case: [2017] QSC 14
Decision Date: 23 February 2017

CaseChat Overview and Summary

In Behrens v Nguyen, the plaintiff sought damages for personal injuries sustained in a motor vehicle accident. The defendant, an insurer, had requested the plaintiff to undergo various medico-legal examinations, including one by an orthopaedic surgeon. Upon the plaintiff's refusal to undergo a further examination by a different orthopaedic surgeon, the defendant insurer sought an order under sections 46A and 50 of the Motor Accident Insurance Act 1994 (Qld) to compel the plaintiff to undergo the additional examination.

The primary legal issue before the court was whether it would be unreasonable or unnecessarily repetitive to require the plaintiff to undergo the further examination by another orthopaedic surgeon. The court considered the statutory provisions in question, which allow insurers to compel a plaintiff to undergo medical examinations when necessary for assessing the claim. The court also weighed the potential hardship and inconvenience to the plaintiff against the insurer's interest in obtaining a comprehensive assessment of the claim.

The court held that, given the plaintiff had already been examined by a range of experts, including an orthopaedic surgeon, it would be unnecessarily repetitious and potentially oppressive to compel the plaintiff to undergo a further examination by another orthopaedic surgeon. The court emphasised the need to balance the interests of the parties and to avoid causing undue hardship to the plaintiff, particularly in circumstances where the plaintiff had already undergone multiple examinations. Consequently, the insurer's application was dismissed.

The court directed the parties to bring in minutes of order to reflect these reasons, ensuring that the decision was properly documented and implemented.

Orders

Orders of the court

The parties are directed to bring in minutes of order to reflect these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Behrens v Nguyen & Anor [2017] QSC 14
PARTIES:	OLIVER BEHRENS (plaintiff) v THANH AN NGUYEN (first defendant) v TRANSPORT ACCIDENT COMMISSION (second defendant)
FILE NO/S:	BS No 8027 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2016
JUDGE:	Burns J
ORDER:	The parties are directed to bring in minutes of order to reflect these reasons.
CATCHWORDS:	DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where the plaintiff brought a claim for damages for personal injury from a motor vehicle accident – where the plaintiff was, at the request of the defendant insurer, examined for medico-legal purposes by a range of medical experts including an orthopaedic surgeon – where the defendant insurer wanted the plaintiff to undergo a further examination by a different orthopaedic surgeon – where the plaintiff refused – where the defendant insurer sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable or unnecessarily repetitious to require the plaintiff to undergo the further examination INSURANCE – THIRD-PARTY LIABILITY INSURANCE – MOTOR VEHICLES – COMPULSORY INSURANCE LEGISLATION – RIGHTS AND LIABILITIES OF INSURER IN RESPECT OF DEFENCE AND COMPROMISE – QUEENSLAND – where the plaintiff brought a claim for damages for personal injury from a motor vehicle accident – where the plaintiff was, at the request of the defendant insurer, examined for medico-legal purposes by a range of medical experts including an orthopaedic surgeon – where the defendant insurer wanted the plaintiff to undergo a further examination by a different orthopaedic surgeon – where the plaintiff refused – where the defendant insurer sought an order pursuant to s 46A and s 50 of the Motor Accident Insurance Act 1994 (Qld) requiring the plaintiff to undergo the further examination – whether it would be unreasonable or unnecessarily repetitious to require the plaintiff to undergo the further examination Motor Accident Insurance Act 1994 (Qld), s 3, s 45, s 46A, s 47, s 50 Jackson v State of Queensland [2005] QSC 161, applied RACQ Insurance Ltd v Wilkins [2010] 2 Qd R 552, followed Whiting v FAI General Insurance Company Ltd & Rayner [1999] QCA 214, cited
COUNSEL:	S C Williams QC for the applicant second defendant M Grant-Taylor QC for the respondent plaintiff
SOLICITORS:	Moray & Agnew for the applicant second defendant Murphy Schmidt for the respondent plaintiff