QBE Insurance (Australia) Limited 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)