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Zilic v QBE Insurance (Australia) Ltd

Zilic v QBE Insurance (Australia) Ltd

Case [2025] NSWSC 11 4 February 2025

Review of Administrative Decisions

Remand

Expert Evidence

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11
Hearing dates: On the papers
Date of orders: 04 February 2025
Decision date: 04 February 2025
Jurisdiction: Common Law - Administrative Law
Before: McNaughton J
Decision:
(1) An order in the nature of certiorari setting aside the certificate dated 22 August 2023 of the third defendant, Terence O’Riain, Thomas Newlyn and Gerald Chew, in their capacity as a Review Panel constituted under section 63 of the Motor Accidents Compensation Act 1999 (NSW).
(2) An order in the nature of mandamus remitting the medical assessment of Ms Zilic to a differently constituted review panel for determination of the matter according to law.
(3) Costs are reserved.

Catchwords:
CIVIL PROCEDURE – judgments and orders – where dispute whether injuries sustained in motor vehicle accident give rise to permanent impairment greater than 10% – order setting aside review of medical assessment by the Personal Injury Commission Motor Accidents Division – order remitting review of medical assessment to a differently constituted Review Panel

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 58, 60, 61, 63, 131
Personal Injury Commission Act 2020 (NSW), ss 9, 33
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 6.11

Cases Cited:
Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
D’Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201
Lou v IAG Ltd (2019) 101 NSWLR 606; [2019] NSWCA 319
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zurich Australian Insurance Ltd v Lewis [2019] NSWSC 1232

Texts Cited:
The State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (version 1, 2018)

Category: Principal judgment
Parties: Elmedina Zilic (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
Terence O’Riain, Thomas Newlyn and Gerald Chew in their capacity as a Review Panel of the Personal Injury Commission (Third Defendants)
Representation:
Counsel:
D Hooke SC / N Ghabar (Plaintiff)
Submitting Appearance (First Defendant)
Submitting Appearance (Second and Third Defendants)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
McInnes Wilson Lawyers (First Defendant)
Crown Solicitors Office (Second and Third Defendants)

File Number(s): 2023/00420780
Publication restriction: Nil

JUDGMENT

Shortly prior to 8:15am on 25 October 2016, the plaintiff, Elmedina Zilic, was injured when her Vespa motor scooter collided with a motor bike whilst she was on her way into the Sydney CBD. At the time of the incident, Ms Zilic had been working at a major bank, and was completing a Master of Laws at the University of Sydney.
Ms Zilic commenced proceedings in the District Court of New South Wales on 4 December 2019 against the compulsory third party…

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 Zilic v QBE Insurance (Australia) Ltd

Details

AGLC: Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11
Case: [2025] NSWSC 11
Decision Date: 04 February 2025

CaseChat Overview and Summary

In the matter of Zilic v QBE Insurance (Australia) Ltd, the dispute revolved around the assessment of permanent impairment resulting from injuries sustained in a motor vehicle accident. The plaintiff, Zilic, sought a review of a medical assessment conducted by the Personal Injury Commission Motor Accidents Division, which determined that the plaintiff's impairment did not exceed 10%. The defendant, QBE Insurance (Australia) Ltd, contested the plaintiff's application for a review. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the plaintiff had a valid basis to challenge the decision of the Motor Accidents Division and to seek a review by a differently constituted Review Panel. The court needed to determine if there were grounds for setting aside the initial review and whether it was appropriate to remit the review to a new panel.

The court found that the initial review process was flawed due to the failure to adequately consider the plaintiff's medical evidence and to provide sufficient reasons for the decision. The court concluded that the plaintiff had a legitimate basis to seek a review by a differently constituted panel. The court exercised its discretion to set aside the initial review and to remit the matter to a new panel for reconsideration. This decision ensured that the plaintiff's case would be reviewed fairly and comprehensively.

The final orders of the court included setting aside the initial review of the medical assessment and remitting the matter to a differently constituted Review Panel for reconsideration. This outcome provided the plaintiff with an opportunity to have their case reassessed with due consideration of all relevant evidence and arguments.

Orders