QBE Insurance (Australia) Limited v Smith - [2024] NSWPICMP 88

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Smith [2024] NSWPICMP 88
CLAIMANT:	Ashley Smith
INSURER:	QBE Insurance (Australia) Limited
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	30 January 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 31 October 2019; the medical dispute related to whether the claimant sustained non threshold physical injuries; a previous Medical Assessor found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; insurer submitted questions of the nature of the cervical spine injury and the relationship to surgery for the purposes of the non-economic loss entitlement; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; any response by the Panel to the questions are not conclusive on the medical assessment matter pertaining to the entitlement to receive non-economic damages; the claimant’s entitlement to non-economic loss damages is a separately defined medical assessment matter; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui applied; considering the provisions of the MAI Act, particularly sub-sections 7.23(1) and (2)(b), any medical assessment certificate is only conclusive evidence of what is certified; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious.
DETERMINATIONS MADE:	The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020 as frivolous and/or vexatious.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons the review of the medical assessment is summarily dismissed.
Mr Ashley Smith (the claimant) alleges that he suffered a number of injuries including a cervical spine injury in a motor accident on 31 October 2019.
The insurer is liable to pay to Mr Smith any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that he sustained non-minor injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the physical injuries was referred to Medical Assessor Woo who issued a Medical Assessment Certificate dated 22 October 2022 (the medical assessment). The Medical Assessor found that the motor accident caused a non-minor injury, specifically a disc injury at C5/6 causing C6 radiculopathy of the right upper limb.…

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] NSWPICMP 88
Decision Date: 30 January 2024

CaseChat Overview and Summary

In the case of QBE Insurance (Australia) Limited v Smith, the primary issue before the court was the claimant's entitlement to non-economic loss damages following an injury sustained on 31 October 2019. The dispute centred on whether the claimant had suffered non-threshold physical injuries, separate from a previously accepted non-threshold psychological injury. The court had to determine the nature of the cervical spine injury and its relationship to surgery, which were pertinent to the claimant's non-economic loss entitlement.

The court examined the principles outlined in Insurance Australia Ltd v Fayed, which highlighted the necessity for the application of dismissal to be exercised sparingly and with exceptional caution. The claimant's application for review was restricted to the threshold dispute, which had already been resolved. The court clarified that any responses by the panel to the questions posed by the insurer would not be conclusive on the separate medical assessment matter related to the entitlement for non-economic damages. The claimant's entitlement to such damages was deemed a distinct medical assessment issue. Cases such as Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis, and Pham v Shui were referenced to underline that the conclusive nature of a medical assessment certificate is limited to what is explicitly certified.

Following a detailed examination of the Motor Accident Injuries Act 2017, particularly subsections 7.23(1) and (2)(b), the court concluded that any medical assessment certificate only serves as conclusive evidence of what is explicitly certified within it. The application to review the medical assessment was dismissed as frivolous and/or vexatious, affirming that the determination of non-economic loss damages remained a separate medical assessment matter.

Orders