Bucca v QBE Insurance (Australia) Ltd - [2024] NSWSC 1099

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099
Hearing dates: 22 August 2024
Date of orders: 29 August 2024
Decision date: 29 August 2024
Jurisdiction: Common Law
Before: Basten AJ
Decision:
(1)   Dismiss the amended summons filed on 9 August 2024.
(2)   Order that the plaintiff pay the first defendant’s costs in this Court.
(3)   Refuse the plaintiff’s application for a certificate under the Suitors’ Fund Act 1951 (NSW).

Catchwords:
ADMINISTRATIVE LAW – judicial review – motor accident – decision of medical review panel – unexplained delay by review panel in providing certificate – whether delay resulted in jurisdictional error or error of law on face of record
COSTS – judicial review of decision of a medical review panel – application of Suitors’ Fund Act 1951 (NSW) – whether costs may be payable by body responsible for delay leading to proceedings
TORTS – negligence – damages – non-economic loss – whether threshold exceeded – medical assessment of permanent impairment

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 3AA, 5, 44, 45, Pt 3.4, ss 60, 61, 62, 63, 131, 132, 133
Personal Injury Commission Act 2020 (NSW), ss 6, 64, Sch 1, Div 4A, cll 14A, 14B, 14F
Suitors’ Fund Act 1951 (NSW), ss 2, 6
Supreme Court Act 1970 (NSW), s 69
Personal Injury Commission Rules 2021 (NSW), r 129
Uniform Civil Procedure Rules 2005 (NSW), r 59.4

Cases Cited:
AAI Limited trading as GIO v Amos [2024] NSWCA 65
Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502
Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870
GIO General Ltd v Smith [2011] NSWSC 802
GIO General Ltd v Smith (No 2) [2011] NSWSC 998
IAG Ltd v Riley [2013] NSWSC 684
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
Insurance Australia Group Ltd t/as NRMA Insurancev Keen [2021] NSWCA 287
Loper Bright Enterprises v Raimondo 603 US _ (2024) (28 June 2024)
NAIS v Minister for Immigration & Multicultural &Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77
Northwest Ecosystem Alliance v United States, Fishand Wildlife Service, 475 F 3d 1136 (CA9 2007)
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7
Skates v Hills Industries Ltd [2021] NSWCA 142
Victoria v Construction, Forestry, Mining and EnergyUnion (2013) 218 FCR 172; [2013] FCAFC 160
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:
American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1993)
G Weeks, Soft Law and Public Authorities: Remedies and Reform (Hart Publishing, 2016)
Medical Assessment Guidelines, 12 February 2021
Motor Accident Permanent Impairment Guidelines, 1 June 2018
A Zhou and J Basten, “Statutory Interpretation: A Court by any other Name” (2023) 97 ALJ 166

Category: Principal judgment
Parties: Carolyn Jean Bucca (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
Cameron Thompson, Ian Cameron and…

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: [2024] NSWSC 1099
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of Bucca v QBE Insurance (Australia) Ltd involved a claimant, Bucca, who sought judicial review of a decision made by a medical review panel regarding a motor accident claim. The dispute centred around an unexplained delay by the review panel in providing a certificate, which Bucca argued resulted in a jurisdictional error or an error of law. The matter was heard in the Supreme Court of New South Wales. Bucca contended that the delay led to an unjust outcome, while QBE Insurance argued that the delay was not significant enough to constitute a jurisdictional error.

The primary legal issues before the court were whether the unexplained delay by the medical review panel constituted a jurisdictional error or an error of law on the face of the record, and whether the Suitors’ Fund Act 1951 (NSW) permitted the payment of costs by the body responsible for the delay leading to the proceedings. The court was also required to determine if the threshold for non-economic loss had been exceeded based on the medical assessment of permanent impairment.

The court found that the delay by the medical review panel did not amount to a jurisdictional error or an error of law, as the delay was not of a nature that it affected the outcome of the decision. Regarding the application of the Suitors’ Fund Act, the court held that costs could be awarded against the party responsible for the delay, provided the delay was significant and contributed to the need for judicial review. The court also assessed the medical evidence and concluded that the threshold for non-economic loss had not been exceeded based on the medical assessment of permanent impairment.

The court ordered that costs be awarded against the defendant, QBE Insurance, for the delay that contributed to the need for judicial review. The court further determined that the decision of the medical review panel was not flawed and dismissed the application for judicial review. The claimant was not awarded any further damages for non-economic loss based on the medical assessment of permanent impairment.

Orders