Insurance Australia Ltd t/as NRMA Insurance v O'Rourke [2017] NSWSC 494 ... Mrs O'Rourke was injured in a motor vehicle
Judgment Summary Supreme Court New South Wales
Insurance Australia Ltd t/as NRMA Insurance v O’Rourke [2017] NSWSC 494 Davies J The Supreme Court has dismissed the Summons brought by Insurance Australia Ltd t/as NRMA Insurance (“NRMA”) against Mrs Kerrie O’Rourke, a Claims Assessor and the State Insurance Regulatory Authority. The Summons challenged the decision of the Claims Assessor based on a number of “Grounds of Judicial Review”. Mrs O’Rourke was injured in a motor vehicle accident on the M1 near Mount White RMS Inspection Station on 20 March 2011. She lodged a claim for compensation with the NRMA which was the Compulsory Third Party insurer of the vehicle at fault for the accident. She was terminated from her employment in September 2011. Separately, but relevantly to the proceedings, in 2013 Mrs O’Rourke began to receive a fortnightly carer’s allowance from Centrelink in respect of her mother with whom she lived. For the purposes of assessing damages under the Motor Vehicle Compensation Act, a General Assessment Conference took place on 14 April 2016. Following the Conference, the Costs Assessor issued a Certificate assessing Mrs O’Rourke’s damages at $471,746.64, which included an amount for past and future economic loss. In doing so, the Assessor found as a matter of fact that Mrs O’Rourke had no residual earning capacity. The NRMA challenged the legal validity of this assessment in the present proceedings. After the Assessment Conference had concluded, the NRMA was given leave to submit further documents being pro-forma documents relating to an application for a carer’s allowance. In the letter subsequently forwarding these documents to the Assessor (“Letter”), the NRMA made a further request for a direction from the Assessor for an authority from Mrs O’Rourke to enable Centrelink to produce documents relating to her carer’s allowance. Those documents, said the NRMA at the hearing, were relevant to the issue of Mrs O’Rourke’s residual earning capacity and, potentially, her credit if what was contained in those documents differed from what she said during the Conference. Mrs O’Rourke’s lawyers objected to the NRMA’s application at the time on the basis that it had not been raised during the Conference. The evidence had already been heard in the matter. Further documents from Centrelink would very likely mean that the whole of the Assessment Conference would need to be reopened. Following the objection, and prior to the Assessor issuing a Certificate and Reasons for Decision on 31 May 2016, the NRMA’s solicitor did not follow up, and made no further argument in support of, his “fresh, unforeshadowed application”. The Court held that this failure to follow up was not reasonable in the circumstances, particularly where Senior Counsel for the NRMA emphasised during oral submissions in the present proceedings that the Assessor did not have regard to its Letter which, he submitted, This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
constituted a failure to take into account a “substantial, clearly articulated argument”. The NRMA submitted that this gave rise to a constructive failure by the Assessor to exercise her jurisdiction or, in the alternate, a denial of procedural fairness. The Court noted that the emphasis of the NRMA’s written submissions differed somewhat to that of its oral submissions during the hearing. The written submissions complained, in different ways, that the Assessor had made an error of law by not equating Mrs O’Rourke’s entitlement to a Centrelink carer’s pension with residual earning capacity. However in consideration of both oral and written submissions, the Court held that the Assessor made no error of law in her factual finding that Mrs O’Rourke had no residual earning capacity because there was evidence to support that conclusion, including medical evidence indicating that Mrs O’Rourke was not fit for any work. In any event, the definition of “care” under the Social Security Act, and in Centrelink material considered by the Assessor, gave no indication that the care provided by Mrs O’Rourke to her mother was necessarily physical; it may also have been in the nature of “guidance” and “supervision”. The Assessor’s conclusion that Mrs O’Rourke had no residual earning capacity was not therefore inconsistent with her receipt of a carer’s allowance. In respect of the May 3 letter, the Court held that the relevant paragraph of the letter did not amount to a “substantial, clearly articulated argument”. If the paragraph intended to indicate that further Centrelink documents may go to the issues of Mrs O’Rourke’s physical capacity and credit, as the NRMA contended in the present proceedings, it either did not say that or did not say it clearly. The Court held that, in any event, the Assessor clearly addressed the issue of residual earning capacity in her Reasons and no legal error arose in that regard. The Court additionally said that it was nevertheless open for the Assessor to find that Mrs O’Rourke did have residual earning capacity, but to award damages for economic loss in the same amount as she did because the amount of the carer’s allowance would be disregarded by a combination of the operation of the Social Security Act and the common law. In that way, no practical injustice was occasioned to the NRMA by the Assessor’s assessment. While the Court did not base its decision on this point, it tended to support the Court’s decision. The Court accordingly dismissed the NRMA’s Summons and ordered it to pay Mrs O’Rourke’s costs.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
