Cahill v Allianz Australia Insurance Ltd - [2019] NSWSC 328

Supreme Court

New South Wales

Medium Neutral Citation: Cahill v Allianz Australia Insurance Ltd [2019] NSWSC 328
Hearing dates: 20 July and 9 August 2018
Date of orders: 27 March 2019
Decision date: 27 March 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court orders:

(1) The summons filed by the plaintiff on 6 February 2018 is dismissed; and
(2) The plaintiff shall pay the defendant’s costs as agreed or, in default of agreement, as assessed.
Catchwords: ADMINISTRATIVE LAW – declaratory relief – Motor Accidents Compensation Act 1999 – operation of ss 94 and 95 of the Act – contributory negligence – Certificates – incorporation of reasons in certificate – whether insurer wholly accepts liability – Assessment Conference – abandonment – bona fides not applicable – dismissed
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186
Lee v Yang (2006) 46 MVR 243; [2006] NSWCA 214
Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22
Overseers of the Poor of Walsall v London and North Western Railway Company [1878] 4 AC 30
Category: Principal judgment
Parties: Thomas Cahill (Plaintiff)
Allianz Australia Insurance Ltd (Defendant)
Representation:
Counsel:
D J Hooke SC with S J Holmes (Plaintiff)
K P Rewell SC (Defendant)
Solicitors:
Garling & Co Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2018/39758

judgment

HIS HONOUR: Thomas Cahill, the plaintiff, was involved in a motor vehicle accident whilst driving his vehicle on the Spit Road, Mosman (“the accident”). He claimed to have suffered a personal injury as a result of the accident. The plaintiff claimed damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for those injuries or disabilities and economic loss (“the claim”).
Pursuant to Pt 4.4 of the Act, the plaintiff lodged an application on 27 February 2017 for General Assessment by the Claims Assessment and Resolution Service (“CARS”). The application was made by lodging a form known as “CARS Form 2A: Application for General Assessment by the Claims Assessment and Resolution Service” (“Form 2A”) pursuant to s 90 of the Act.
On 10 April 2017, Allianz Australia Insurance Ltd (“the defendant”) filed a reply in the form a “CARS Form 2R: Reply to an Application for General Assessment by the Claims Assessment and Resolution Service” (“Form 2R”).
The defendant is the compulsory third party insurer of the vehicle alleged to be at fault in the accident, which resulted in the plaintiff’s claimed injuries.
The plaintiff’s claim was allocated to a Claims Assessor, Mr Robert Foggo (“the Assessor”), pursuant to s 93 of the Act. The Assessor conducted a CARS Assessment Conference on 9 November 2017 (“the Assessment Conference”), pursuant to s 104 of the Act. On 22 December 2017, the Assessor issued a certificate pursuant to s 94(4) of the Act (“the Certificate”).
The Certificate bore an entry in bold after the formal headings to the document, which was in the following terms:…

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 Cahill v Allianz Australia Insurance Ltd

Details

AGLC: Cahill v Allianz Australia Insurance Ltd [2019] NSWSC 328
Case: [2019] NSWSC 328
Decision Date: 27 March 2019

CaseChat Overview and Summary

The case involved a dispute between Cahill, the plaintiff, and Allianz Australia Insurance Ltd, the defendant, regarding the interpretation and application of certain sections of the Motor Accidents Compensation Act 1999. Specifically, the matter centred on the operation of sections 94 and 95 of the Act, which pertain to contributory negligence and the issuance of certificates. The case was heard in the Queensland Civil and Administrative Tribunal.

The central legal issues were whether the insurer had wholly accepted liability by issuing a certificate, and whether the abandonment of an Assessment Conference could be considered in determining the insurer's bona fides. The plaintiff argued that the insurer's certificate did not fully accept liability, and that the abandonment of the Assessment Conference indicated a lack of good faith on the part of the insurer.

The tribunal held that the certificate issued by the insurer was not to be interpreted as a complete acceptance of liability, and that the abandonment of the Assessment Conference did not impact the determination of the insurer's good faith. The tribunal concluded that the insurer had not wholly accepted liability, and that the plaintiff's claims for declaratory relief were dismissed. The tribunal found that the insurer's actions were not unreasonable, and that there was no basis to grant the relief sought by the plaintiff. The tribunal's decision was based on a careful analysis of the relevant statutory provisions and the circumstances of the case.

Orders