QBE Insurance (Australia) Ltd v Henderson - [2012] NSWSC 1607

Supreme Court

New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607
Hearing dates: 11 October 2012
Decision date: 11 December 2012
Jurisdiction: Common Law
Before: Rein J
Decision:
Plaintiff's application for further medical assessment contained additional relevant information.

Catchwords:
ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - application for further medical assessment - whether application contained "additional relevant information" - where application supported by new medical report on a topic addressed in a previous report provided to MAS - where new report reaches a different conclusion based upon change in symptoms of the claimant - new report constitutes "additional relevant information" as it is based on different factual material
PROCEDURE - costs recoverable under the Suitors Fund Act 1951 - whether a proper officer of the Motor Accidents Authority's Medical Assessment Service constitutes a "court"
Legislation Cited: Motor Accidents Compensation Act 1999
Suitors' Fund Act 1951
Supreme Court Act 1970
Cases Cited: Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
Allianz v Ward [2010] NSWSC 720
Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 60 MVR 194
Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
GIO General Ltd v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith (No 2) [2011] NSWSC 998
Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17
Insurance Australia Ltd t/as NRMA Insurance v Hutton-Potts [2010] NSWSC 1446; (2010) 57 MVR 194
Rodger v De Gelder [2011] NSWCA 97
Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443
Category: Principal judgment
Parties: QBE Insurance (Australia) Ltd (Plaintiff)
Paul Henderson (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)
Representation: Counsel:
M Robinson SC; I Cullen (Plaintiff)
B Nolan (First Defendant)
Solicitors:
Moray & Agnew (Plaintiff)
Carol O'Dea Lawyers (First Defendant)
I V Knight, Crown Solicitor (Second Defendant)

File Number(s): SC 2012/181451

Judgment

Mr Paul Henderson, the defendant, was involved in a motor accident on 24 September 2008 when a vehicle travelling in the opposite direction veered in front of the lorry that he was driving and the two vehicles collided. The driver of the other vehicle was killed in the accident.

QBE Insurance (Australia) Ltd, the plaintiff, was the third party insurer of the other driver and it admitted liability for the accident by a notice given under s 81 of the Motor Accidents Compensation Act 1999 (all references to sections in the balance of these reasons are to this Act unless otherwise specified). The Motor Accidents Authority is the second defendant in these proceedings and has filed a submitting appearance.

Mr Henderson was medically assessed pursuant to Pt 3.4, s 61 by Dr Lana Kossoff, an assessor from the second defendant's Medical Assessment Service ("MAS"). Dr Kossoff found Mr Henderson to be suffering from psychiatric injuries assessed at 16 per cent whole person impairment.

QBE…

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.

Keep reading for free

Create a free CaseChat account to read QBE Insurance (Australia) Ltd v Henderson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1607
Decision Date: 11 December 2012

CaseChat Overview and Summary

QBE Insurance (Australia) Ltd sought judicial review of a decision made by the Motor Accidents Authority's Medical Assessment Service (MAS) to approve a claim for a further medical assessment. The claimant had submitted an application for a reassessment supported by a new medical report, which reached a different conclusion from a previous report submitted to the MAS. The insurer contested the decision, arguing that the new report did not constitute "additional relevant information" as required by the Motor Accidents Compensation Act 1999. The court was required to determine whether the new report qualified as "additional relevant information" and if the MAS's decision was legally sound.

The court considered whether the new medical report constituted "additional relevant information" within the meaning of the Motor Accidents Compensation Act 1999. The court found that the new report was indeed "additional relevant information" because it was based on a change in the claimant's symptoms and reached a different conclusion from the previous report. The court further held that the MAS's decision to approve the application for a further medical assessment was correct. Additionally, the court addressed the issue of whether a proper officer of the MAS constituted a "court" for the purposes of recovering costs under the Suitors Fund Act 1951. The court held that a proper officer of the MAS was not a "court" within the meaning of the Act.

The court's decision upheld the MAS's approval of the application for a further medical assessment, finding that the new medical report constituted "additional relevant information." The court also clarified that a proper officer of the MAS is not a "court" for the purposes of recovering costs under the Suitors Fund Act 1951. As a result, QBE Insurance (Australia) Ltd's application for judicial review was dismissed. The court made no orders as to costs.

Orders