Insurance Australia Limited v O’Shannessy [2015] NSWSC 1047

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Limited v O'Shannessy [2015] NSWSC 1047 Hearing dates: 15 July 2015, further written submissions on 20 July 2015, 24 July 2015 and 27 July 2015. Date of orders: 31 July 2015 Decision date: 31 July 2015 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) The Summons be dismissed;

(2) The Plaintiff pay the First Defendant's costs of the proceedings; and

(3) There be no order as to the Second and Third Defendants' costs of the proceedings. Catchwords: MOTOR ACCIDENT – assessment of damages by claims assessor – past and future economic loss – claimant suffered leg injuries – claimant had pre-existing back injuries – plaintiff ceased work at time of accident – Assessor found claimant likely to have returned for work but for accident – applied cushion for past economic loss and discount for future economic loss to account for likelihood of further time off work due to back injuries

JUDICIAL REVIEW – supervisory jurisdiction of the Supreme Court – whether Assessor committed jurisdictional error in proceeding on false assumption that parties had agreed levels of past economic loss – whether Assessor failed to discharge function of assessing damages – whether breach of procedural fairness – Assessor did not depart from agreed position of the parties – ground not established – challenge to finding of fact concerning claimant's likelihood of returning to work but for the accident – making of finding not breach of procedural fairness – allegation that no evidence to support finding of fact – basis for challenge – whether fact found wholly within jurisdiction can be challenged on no-evidence ground in supervisory jurisdiction of the Supreme Court - jurisdictional limits on Assessor's functions – scope of reasonableness review – finding of fact capable of being challenged on the basis of no evidence or lack of logical grounds for it being made – complaint of no evidence and lack of logical grounds not made out.