Berzins v QBE Insurance (Australia) Ltd

The appeal concerned a dispute between Andris Berzins (the appellant) and QBE Insurance (Australia) Ltd (the Insurer) regarding the quantum of the appellant's entitlements under an accident insurance policy. The appellant, a rigger, sustained an injury to his right hand and wrist from vibrations while using a trigger gun at work. He was subsequently dismissed from his employment and claimed to be totally disabled for work since the date of his injury. The primary judge had made findings and indicated an intention to enter judgment for the appellant, but the appellant contended that the judgment sum was insufficient.

The court was required to determine whether the primary judge erred in calculating the quantum of the appellant's entitlements under the policy, specifically whether the appellant was rendered totally disabled within the meaning of the policy. A further issue arose when the Insurer sought, belatedly, to raise an argument not pleaded at trial via a notice of contention, concerning whether the appellant's settlement of workers compensation and common law claims against his employer affected his entitlements under the policy. The court also had to consider whether to grant leave for the Insurer to file the notice of contention.

The court refused leave to file the notice of contention, finding that granting leave would prejudice the appellant and be futile. The court then allowed the appeal, setting aside the original judgment for the appellant. In its place, the court entered judgment for a greater sum, reflecting a revised calculation of the appellant's entitlements under the policy. The Insurer was ordered to pay the appellant's costs of the appeal.