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Richardson bht Richardson v QBE Insurance (Australia) Ltd

Richardson bht Richardson v QBE Insurance (Australia) Ltd

Case [2020] NSWSC 366 7 April 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366
Hearing dates: 4 March 2020
Date of orders: 07 April 2020
Decision date: 07 April 2020
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) The certificate issued in relation to the plaintiff by the third defendant on 5 September 2019 is set aside.

(2) The plaintiff’s application for review dated 17 April 2019 is remitted to the second defendant to be referred to a panel of at least three medical assessors in accordance with s 63 of the Motor Accidents Compensation Act 1999 (NSW) for determination in accordance with law.
(3) The first defendant is to pay the plaintiff’s costs as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Failure to give adequate reasons for decision – Assessment of whole person impairment under Motor Accidents Compensation Act 1999 (NSW) – Reasons Inadequate – Certificate set aside
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ali v AAI Limited [2016] NSWCA 110; (2016) 75 MVR 502
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Brimelow v Sharpe [2012] NSWCA 345
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284; (2006) 235 ALR 342
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389
AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Raibevu v Minister for Home Affairs [2020] FCAFC 35
Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514
Wingfoot Australia Partners Pty Ltd v Kocak (2003) 252 CLR 480; [2013] HCA 43
Texts Cited: American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition)
Motor Accidents Medical Assessment Guidelines (effective from 1 October 2008)
Motor Accident Permanent Impairment Guidelines (effective from 1 Jun 2018)
Category: Principal judgment
Parties: Montana Ruby Richardson bht Wendy Richardson (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
The Medical Assessors Review Panel of the State Insurance Regulatory Authority comprising Medical Assessors Allan Meares, John Giles and Michael McGlynn (Third Defendant)
Representation:
Counsel:
L King SC and P O’Connor (Plaintiff)
J Gumbert (First Defendant)
Solicitors:
R. J. O’Halloran & Co (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)

File Number(s): 2019/381609

Judgment

Background

Ms Montana Richardson, the plaintiff, suffered injuries in a motor vehicle accident on 3 January 2016 in Tamworth, New South Wales, when she was about two and a half years old. 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.

Continue reading Richardson bht Richardson v QBE Insurance (Australia) Ltd

Details

AGLC: Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366
Case: [2020] NSWSC 366
Decision Date: 07 April 2020

CaseChat Overview and Summary

The case of Richardson v QBE Insurance (Australia) Ltd involved a dispute between the plaintiff, Richardson, and the defendant, QBE Insurance, concerning the adequacy of reasons provided for a decision made under the Motor Accidents Compensation Act 1999 (NSW). The plaintiff sought judicial review of a decision by QBE Insurance regarding the assessment of whole person impairment following a motor accident. Richardson argued that the reasons given for the decision were inadequate, thereby constituting an error of law. The matter was brought before the court to determine whether the reasons provided were sufficient to justify the decision made.

The primary legal issue before the court was whether the reasons provided by QBE Insurance for their decision on the assessment of whole person impairment were adequate. The court was required to consider whether the reasons given were sufficient to justify the decision and whether the failure to provide adequate reasons constituted an error of law on the face of the record. The court had to evaluate whether the decision could be supported by the reasons provided and whether the absence of adequate reasons rendered the decision flawed.

In its judgment, the court found that the reasons provided by QBE Insurance were indeed inadequate. The court held that the reasons did not sufficiently explain the basis for the decision or how the decision was reached. The court emphasised the importance of providing clear and comprehensive reasons to ensure transparency and accountability in decision-making processes. Given the inadequacy of the reasons, the court concluded that the decision could not be supported and that the failure to provide adequate reasons constituted an error of law. Consequently, the court set aside the certificate issued by QBE Insurance.

The court's final order was to set aside the certificate issued by QBE Insurance due to the inadequacy of the reasons provided for the decision on the assessment of whole person impairment. The matter was remitted back to QBE Insurance for reconsideration, with clear instructions to provide adequate reasons that sufficiently explain the decision-making process.

Orders