Insurance Australia Ltd v Kai (No 2)

[2018] NSWSC 1086

Supreme Court

New South Wales

Medium Neutral Citation:	Insurance Australia Ltd v Kai (No 2) [2018] NSWSC 1086
Hearing dates:	On the papers
Date of orders:	10 July 2018
Decision date:	10 July 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [4]
Catchwords:	ORDERS – form of orders for statutory mandamus – desirable to include particularity to avoid uncertainty – form of orders proposed by plaintiff in reply adopted
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) s 60
Category:	Consequential orders (other than Costs)
Parties:	Insurance Australia Limited (Plaintiff) Long Lai Kai (First Defendant) State Insurance Regulatory Authority (Second Defendant)
Representation:	Counsel: M Robinson SC, J Lucy (Plaintiff) M Allars SC, J Trainor (First Defendant) Submitting Appearance (Second Defendant)   Solicitors: Hall & Wilcox (Plaintiff) HY Solicitors (First Defendant)
File Number(s):	2018/84037
Publication restriction:	None

Judgment

Introduction

1. On 22 June 2018 I made orders and published reasons in this matter: Insurance Australia Ltd v Kai [2018] NSWSC 958. I also made directions requiring the parties to exchange submissions regarding the form of the orders to be made as a consequence of my reasons.

2. The issues between the parties have been addressed in their written submissions. The plaintiff proposed a form of order in its submissions dated 27 June 2018. The first defendant proposed a different form of order in its submissions of the same date but accepted that its proposal “may to some extent suffer from uncertainty”. In its reply submissions dated 28 June 2018 the plaintiff proposed a further option, which contains greater particularity than its original proposal as to the ambit of the disputes to be referred.

3. While there is merit in the proposition that the second defendant (the Authority) ought simply be ordered to perform its statutory duty in accordance with s 60(2), there is a risk that the Authority will be unsure as to how to go about this, in circumstances where I have found that its purported referral to medical assessors failed to comply with its statutory duty. It is desirable, if possible, to ensure that further applications to this Court are not required and that the Authority has as much guidance as to what it needs to do to fulfil its statutory duty as is warranted by the nature of this Court’s jurisdiction. For these reasons I consider it to be preferable to adopt, substantially, the plaintiff’s further proposal in its reply submissions, to which the first defendant has confirmed it does not wish to respond. This course also has the advantage of preserving the plaintiff’s right to have its dispute referred to the Authority in the plaintiff’s preferred terms.

4. For the reasons given above, I make the following order:

1. Order the second defendant to arrange for the following medical disputes, which were referred to it by the plaintiff in its application dated 18 September 2017, to be referred to one or more medical assessors in accordance with s 60(2) of the Motor Accidents Compensation Act 1999 (NSW):

1. Whether 0-12 proposed consultations with a psychologist are causally related to the injury sustained in the subject accident;

2. Whether 0-12 proposed consultations with a psychologist are reasonable and necessary in relation to the injury sustained in the subject accident;

3. Whether 0-6 GP consultations per year from the date of the assessment, ongoing for the claimant’s [plaintiff’s] life expectancy, are causally related to the injury sustained in the subject accident;

4. Whether 0-6 GP consultations per year from the date of the assessment, ongoing for the claimant’s [plaintiff’s] life expectancy, are reasonable and necessary in relation to the injury sustained in the subject accident;

5. Whether 0-12 consultations per year with a physiotherapist from the date of the assessment, ongoing for the claimant’s [plaintiff’s] life expectancy, are causally related to the injury sustained in the subject accident; and

6. Whether 0-12 consultations per year with a physiotherapist from the date of the assessment, ongoing for the claimant’s [plaintiff’s] life expectancy, are reasonable and necessary in relation to the injury sustained in the subject accident.

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