QBE Insurance (Australia) Limited v Gilbey
[2024] NSWPIC 633
•29 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Gilbey [2024] NSWPIC 633 |
| CLAIMANT: | Taniesha Gilbey bhnf Quinton Evans |
| INSURER: | QBE Insurance (Australia) Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 29 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; medical assessment found that claimant sustained a non-threshold psychological injury; insurer served a liability notice accepting that the claimant suffered a non-threshold injury; insurer then filed an application to review the medical assessment; claimant asserted that there was no medical dispute; Commission has power to determine whether there is a medical dispute according to Smalley v Motor Accidents Authority of New South Wales; principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority applied; contextual considerations and discussion of medical assessment procedures; insurer had statutory right to seek a review of the medical assessment; doubt that an admission of non-threshold injury was an admission of liability for part of a claim as it does not constitute an admission that there is a pecuniary obligation to pay damages; Held – claimant’s application to dismiss the insurer’s application for assessment of medical dispute rejected. |
| DETERMINATIONS MADE: | 1. The application to dismiss the insurer’s application seeking leave to review the medical assessment of Medical Assessor Rickard-Bell is rejected. 2. The insurer’s application seeking leave to review the medical assessment is to be determined in accordance with s 7.26 of the Motor Accident Injuries Act 2017. |
REASONS
THE DISPUTE
Ms Taniesha Gilbey (the claimant) suffered injury in a motor accident on 13 July 2023. The claimant was a back seat passenger in a vehicle which hit a kangaroo and collided with a tree.[1]
[1] History provided to Medical Assessor Rickard-Bell.
The insurer is liable to pay to Ms Gilbey any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
There is a medical dispute concerning whether the claimant suffered only threshold injuries caused by the motor accident. A Medical Assessor found that the claimant suffered a non-threshold psychiatric injury.
In a further liability notice the insurer accepted the Medical Assessor’s finding that the claimant suffered a non-threshold injury. It then sought leave to review the medical assessment.
Considering the insurer’s admission in the further liability notice, the claimant submits that there is no “medical dispute” between the parties and the insurer’s application for review cannot proceed.
THE FACTS
The claimant lodged an application for personal injury benefits and the insurer agreed to pay statutory benefits up to 52 weeks. On 20 March 2024 the insurer denied liability to pay ongoing statutory benefits after the 52-week post-accident period on the basis that the claimant only suffered threshold injuries.
On 9 April 2024 the insurer issued an internal review notice which confirmed its decision that the claimant only suffered threshold injuries.
On 26 July 2024 a medical assessment certificate was issued. Medical Assessor Rickard-Bell found that the claimant suffered a post-traumatic stress disorder which is not a threshold injury as defined in the MAI Act. The insurer stated that it received the certificate on
8 August 2024.On 22 August 2024 the insurer issued a further dispute notice which accepted liability for statutory benefits beyond 52 weeks from the date of the accident and that the claimant had sustained a “non-threshold injury”.
On 4 September 2024 the insurer filed an application to review the medical assessment.
On 17 October 2024 the insurer provided a further liability notice. The insurer disputed that the claimant suffered a non-threshold injury and stated that it did “not consider Assessor Rickard-Bell has correctly or adequately addressed the criteria for PTSD”.
Submissions
The claimant submitted that there is no medical dispute in respect of the threshold issue because the insurer provided a “liability notice” accepting the claim for statutory benefits on the basis of the medical assessment certificate.
The claimant submitted that there was no medical dispute within the meaning of s 7.17 of the MAI Act because the liability notice dated 22 August 2024 accepted that the claimant had sustained a non-threshold injury.
The claimant referred to the decision of the Court of Appeal in Smalley v Motor Accidents Authority of New South Wales[2] and submitted that this was an admission of liability for part of the claim as it was an admission that the insurer owes some pecuniary obligation to the claimant.[3]
[2] See [2013] NSWCA 318 (Smalley).
[3] Smalley at [54].
The insurer submitted in respect of its decision made on 22 August 2024 that:
(a) the medical assessment certificate was prima facie evidence of the claimant suffering non-threshold injuries and was then binding on the insurer;
(b) that position was limited to an acknowledgement of the findings made by the Medical Assessor;
(c) the insurer’s decision enabled the claimant to receive ongoing entitlements whilst the application for review was determined;
(d) the insurer complied with is obligations of good faith in accordance with s 6.3(3)(c) of the MAI Act, and
(e) the decision was made for the purposes of reinstating statutory benefits only.
The insurer noted that it filed an application for review within the 28-day period and that it maintained there were errors in the medical assessment as outlined in its application to review. It maintained that a medical dispute existed and requested a determination by the President’s delegate under s 7.26(5) of the MAI Act.
The insurer referred to s 3.44 of the MAI Act and submitted that any determination in the statutory benefits claim is not binding in relation to the common law claim.
The insurer submitted that it clarified its position when it issued a further liability notice on
17 October 2024.In conclusion the insurer submitted:
“The liability decision (in respect of the statutory benefits claim) made on 22 August 2024 was not as the claimant submits, to be conflated as the conclusion of the threshold dispute (in this regard the insurer noted there was no clarification sought by the claimant’s representative before the decision to discontinue PIC threshold dispute proceeding on 27 August 2024) or a forfeiture of the insurer’s right to seek a review of the medical assessment by the Review Panel.”
Reasons
Principles of Statutory interpretation
I have recently set out the out principles of statutory construction in AAI Ltd v Leverrier.[4] . These are repeated as part of these reasons.
[4] [2024] NSWPIC 548 at [50]-[53].
Legislation
A medical dispute is defined in s 7.17 of the MAI Act as “a dispute between the claimant and an insurer about a medical assessment matter”. The review procedure of a medical assessment is contained in s 7.26 of the MAI Act.
A medical assessment matter is defined in Schedule 2, cl 2 of the MAI Act. Division 7.5 of the MAI Act concerns the determination of medical assessments. These procedures include the referral by the President of a medical dispute for assessment to a Medical Assessor (s 7.20), the manner of assessment (s 7.21) including that it is made in accordance with the Guidelines, the status of assessments (s 7.23), further medical assessments (s 7.24), and reviews of medical assessments (s 7.26).
Reasons
I accept that the question of whether there is a medical dispute can be determined by the Personal Injury Commission (Commission).[5]
[5] Insurance Australia Ltd v Scott [2016] NSWCA 138 (Scott) at [6], [113] and [125].
The claimant’s submission is that the acceptance by the insurer that the motor accident caused a non-threshold injury is an admission of liability for part of the claim, and consistent with the decision of the Court of Appeal in Smalley, cannot be withdrawn. It was submitted that any applications before the Commission are “now void”.
I doubt that the insurer’s admission that the claimant suffered a non-threshold injury is an admission of liability in that it is not an admission that the “insurer owes some pecuniary obligations to the claimant”[6] in the context of an award for damages. In my view the admission satisfies a necessary statutory pre-condition[7] for an award of damages but does not constitute an admission that there is a pecuniary obligation to pay the claimant some damages.
[6] Smalley at [54].
[7] See s 4.4 of the MAI Act.
As the Court of Appeal in Nominal Defendant vGhabriel[8] held, the right to retract an admission is dependent upon a construction of the statute.
[8] [2007] NSWCA 52 (Gabriel).
Even if, which I do not accept, that the insurer’s admission falls within the scope of s 6.20, I accept that, contextually, the insurer is entitled to pursue its rights of review particularly in circumstances where the application was filed within the relevant period.
The insurer was entitled to file an application for review in accordance with the procedures contained in s 7.26 of the MAI Act. There is no basis to conclude that the letter sent by the insurer accepting that the claimant suffered a non-threshold injury as found by Medical Assessor Ricard-Bell, is inconsistent with its right to seek a review of the medical assessment. There is no statutory basis to infer that the letter sent by the insurer disentitles or abrogates the insurer’s right to pursue a review. This is because s 7.26 provides a clear statutory right to review the medical assessment. It would be a severe distortion of that right to find that the liability notice disentitled the insurer from pursuing a review.
I accept the insurer’s submission that it was acting in good faith in accordance with its obligation under s 6.3(3)(c) by accepting the claimant’s further entitlements to statutory benefits until the review procedure had concluded. I agree that the determination by the Medical Assessor materially affected the claimant’s entitlement to statutory benefits and the insurer, quite properly, accepted the claimant’s ongoing entitlement until the review had been completed.
I do not accept the claimant’s submission that the admission contained in the letter dated 22 August 2024 is inconsistent with the insurer’s statutory right to review the medical assessment.
I otherwise refer to the reasons in Leverrier which provide other contextual support for the insurer’s position.[9]
[9] Leverrier at [85]-[89].
The insurer otherwise submitted that the admission of liability was limited to the claimant’s entitlement for ongoing statutory benefits and referred to s 3.44 which provides that determinations by the Commission in connection with a claim for any statutory benefits is not binding in connection with a claim for damages.
I reject this submission. A determination by a Medical Assessor is not a decision of the Commission.[10] It is unlikely that a determination by a Review Panel is a decision of the Commission.[11]
[10] See s 9 pf the Personal Injury Commission Act 2020 (constitution of Commission) and appointment of Medical Assessors as “decision makers” (ss 32 and 33 of the Personal Injury Commission Act 2020).
[11] Wood CJ at Cl expressed this view in Campbelltown City Council v Vegan [2004] NSWSC 1129 at [31]-[36]. Those findings were not contest on appeal: Campbelltown City Council v Vegan [2006] NSWCA 284 at [53].
Whilst irrelevant to my decision, a determination of whether a claimant sustained a non-threshold injury affects both an entitlement to ongoing statutory benefits and is a statutory pre-condition to being awarded damages (s 4.4 of the MAI Act). The suggestion in the insurer’s submissions that the determination of a threshold dispute is restricted to an ongoing entitlement to statutory benefits and is irrelevant to a potential award of damages is rejected.
Conclusion
The claimant’s application to dismiss the insurer’s application for review of the medical assessment is rejected.
The insurer’s application seeking a review of the medical assessment should proceed to the President for determination pursuant to s 7.26(5) of the MAI Act.
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