QBE Insurance (Australia) Ltd v Shah - [2021] NSWSC 288

Supreme Court

New South Wales

Medium Neutral Citation: QBE Insurance (Australia) Limited v Shah [2021] NSWSC 288
Hearing dates: 27 November 2020
Date of orders: 25 March 2021
Decision date: 25 March 2021
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) The time for the plaintiff to commence this proceeding is extended pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 up to and including 15 July 2020.
(2) The decision of the third defendant in his Medical Assessment Certificate issued on 21 January 2020 under Part 3.4 of the Motor Accidents Compensation Act 1999 in relation to whole person impairment allegedly suffered by the first defendant is set aside.
(3) The matter of the assessment of whole person impairment of the first defendant is remitted to the second defendant for redetermination by a medical assessor other than the third defendant according to law.
(4) The first defendant is to pay the plaintiff’s costs of these proceedings

Catchwords:
ADMINISTRATIVE LAW — Jurisdictional error — claim under Motor Accidents Compensation Act 1999 (NSW) – review of medical assessor’s certificate – where formal measurement of range of movement varied between clinicians – where insurer submitted surveillance reports asserting non-clinical activities inconsistent with formal examination – where assessor did not address a clearly, articulated argument or give reasons concerning the issue – certificate set aside and matter remitted for reassessment

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26
Rodger v De Gelder (2011) 80 NSWLR 564; [2011] NSWCA 97

Category: Principal judgment
Parties: QBE Insurance (Australia) Limited (plaintiff)
Bhanprakash Shah (first defendant)
State Insurance Regulatory Authority (second defendant)
Representation:
Counsel:
K Rewell SC (plaintiff)
SJ Harben SC with S Hunt (first defendant)
Solicitors:
Moray & Agnew (plaintiff)
Shine Lawyers (first defendant)
Crown Solicitor for NSW (second defendant)

File Number(s): 2020/207749
Publication restriction: No

Judgment

The plaintiff is an insurer licensed under the Motor Accidents Compensation Act 1999 (NSW). The third defendant (Dr Burns) is a medical assessor appointed by the second defendant (the State Insurance Regulatory Authority or “SIRA”) under Pt 3.4 of the Act. By summons filed on 15 July 2020 the plaintiff seeks judicial review of Dr Burns’ decision in a Medical Assessment Certificate (“MAC”) issued by him on 21 January 2020. The MAC concerns the first defendant, Mr Shah, who was injured in a motor accident on 12 February 2014. Dr Burns assessed his whole person impairment at 20% on the basis of three components: 10% for the left shoulder, 9% for the right shoulder and 3% for right-sided trochanteric bursitis (inflammation of the bursa of the hip joint).
On 26 February 2020 the plaintiff applied to the fourth defendant, as proper officer of SIRA, for referral of the medical assessment of the first defendant to a review panel pursuant to s 63 of the Act. That application was refused on 22 April 2020 for reasons published that day. The plaintiff’s summons…

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: [2021] NSWSC 288
Decision Date: 25 March 2021

CaseChat Overview and Summary

In the case of QBE Insurance (Australia) Ltd v Shah, the dispute involved a claim under the Motor Accidents Compensation Act 1999 (NSW) regarding a review of a medical assessor’s certificate. The central issue was whether the certificate, which was critical in determining the extent of the claimant’s injuries, was valid and justified. The claimant argued that the certificate did not appropriately consider discrepancies between formal measurements of range of motion taken by different clinicians and the activities described in surveillance reports submitted by the insurer. These reports suggested that the claimant was engaging in non-clinical activities inconsistent with the limitations indicated by the formal examination.

The court was required to determine whether the medical assessor had made a jurisdictional error by not addressing a clearly articulated argument concerning the inconsistencies between the formal measurements and the surveillance reports. Additionally, the court had to consider whether the assessor adequately provided reasons for their assessment, as required by administrative law principles. The key legal issues revolved around the standards of procedural fairness, the adequacy of the assessor’s reasons, and whether the certificate was rationally connected to the evidence presented.

The court found that the assessor had failed to properly address the inconsistencies between the formal measurements and the surveillance reports. The assessor did not provide any reasons for dismissing the evidence from the surveillance reports or for not considering the discrepancies in range of motion measurements. The court held that this constituted a jurisdictional error because the assessor did not comply with the principles of natural justice by failing to give adequate reasons for the certificate. Consequently, the certificate was set aside, and the matter was remitted for reassessment to ensure that the assessor properly considered all relevant evidence and provided adequate reasons for their findings.

Orders