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Scott v Insurance Australia Limited

Scott v Insurance Australia Limited

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Case Copied 1 September 2015 47 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Scott v Insurance Australia Limited [2015] NSWSC 1249
Hearing dates: 5 June 2015
Date of orders: 01 September 2015
Decision date: 01 September 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
Under Rule 59.10 Uniform Civil Procedure Rules 2005, the time for commencing these proceedings is extended to 20th November 2014;
Amend the record so the only defendants are, and are described as, Insurance Australia Limited T/as NRMA Insurance as first defendant; and the Motor Accidents Medical Assessment Service as second defendant;
The legal effect of the assessment certificates given under s 61 Motor Accidents Compensation Act in MAS matter number 2013/01/1756 dated 27th August 2013; 2nd September 2013; and 21st November 2013 are quashed by an order in the nature of certiorari;
Prohibit the Motor Accidents Medical Assessment Service from taking any further steps in MAS matter no. 2013/01/1756;
The first defendant to pay the plaintiff’s costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – judicial review – motor accident – referral of medical dispute – whether attendant care services was treatment provided under s 58 Motor Accidents Compensation Act 1999 (NSW) – jurisdiction of Medical Assessment Service

STATUTORY INTERPRETATION – s 58(1)(a) and (b) Motor Accidents Compensation Act 1999 (NSW) – “treatment” – application of Kelly v the Queen
WORDS & PHRASES – “treatment” – “attendant care services”
Legislation Cited: Interpretation Act 1987 (NSW);
Motor Accidents Act 1988 (NSW);
Motor Accidents Compensation Act 1999 (NSW);
Motor Accident Compensation Amendment (Medical Assessments) Act 2000 (NSW);
Uniform Civil Procedure Rules 2005 (NSW);
Supreme Court Act 1970 (NSW);
Transport Accidents Compensation Act 1987 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; 59 MVR 548;
Australian Education Union v Department of Education and Children’s Service [2012] HCA 3; 248 CLR 1;
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32, 225 CLR 364;
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372;
Carr v Western Australia [2007] HCA 47; 232 CLR 138;
Craig v State of South Australia [1995] HCA 58; 184 CLR 163;
CSR Limited v Eddy [2005] HCA 64; 226 CLR 1;
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388;
Donnelly v Joyce [1974] Q.B. 454;
Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120;
Grljak v Trivan Pty Ltd (In liq) (1994) 35 NSWLR 82;
Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161;
Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380.
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149;
Insurance Australia Group Ltd t/as NRMA Insurance Ltd v Motor Accidents Authority of NSW [2013] NSWSC 318; 63 MVR 203;
Kars v Kars [1996] HCA 37; 187 CLR 354;
Kirk v…

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: [2015] NSWSC 1249
Decision Date: 01 September 2015

CaseChat Overview and Summary

Scott v Insurance Australia Limited involved a dispute regarding the interpretation of the Motor Accidents Compensation Act 1999 (NSW). The plaintiff, Mr Scott, sought compensation for medical expenses related to a motor accident. The primary issue was whether "attendant care services" provided to Mr Scott constituted "treatment" under section 58 of the Act, which governs the referral of medical disputes to the Medical Assessment Service. Insurance Australia Limited, the defendant, argued that such services did not fall within the definition of treatment and thus were not subject to the Medical Assessment Service's jurisdiction.

The legal issues the court had to resolve included the interpretation of "treatment" under section 58(1)(a) and (b) of the Act and the applicability of the decision in Kelly v the Queen to this context. The court had to determine if "attendant care services" could be considered "treatment" and whether these services were provided to Mr Scott as part of his rehabilitation. The court also needed to assess if the Medical Assessment Service had jurisdiction over these services.

In delivering the judgment, the court meticulously analysed the statutory language and relevant case law, including Kelly v the Queen. The court held that "attendant care services" did not constitute "treatment" as defined by the Act. The reasoning was based on the legislative intent to differentiate between medical treatment and supportive services. The court concluded that the Medical Assessment Service did not have jurisdiction over "attendant care services." As a result, the referral of the medical dispute to the Medical Assessment Service was deemed invalid, and the court upheld the defendant's argument.

The final orders of the court were that the referral of the medical dispute to the Medical Assessment Service was quashed, and the defendant was not required to compensate Mr Scott for the attendant care services provided. This decision clarified the scope of "treatment" under the Motor Accidents Compensation Act 1999 (NSW) and the jurisdictional limits of the Medical Assessment Service.

Orders