Court sends resounding message- Prepare your case or lose at your peril

PUBLISHED 25 May 2016

Insurance Australia Limited t/as NRMA Insurance v Melkonyants [2016] NSWSC 503

The recent Supreme Court decision of Insurance Australia Limited t/as NRMA Insurance v Melkonyants [2016] NSWSC 503 (Melkonyants) is another classic epitome of the contentious nature in claims for pain and suffering (non – economic loss) in motor vehicle accident claims. Claims of this kind entitle claimants to a large sum of damages depending on the severity of the injuries which permanently impair the claimant for the rest of his/her life expectancy.

As a summary, the claimant was injured in a motor vehicle accident on 21 November 2011, and she was assessed on 4 April 2014, by a Medical Assessor who certified that the claimant had “urinary tract including bladder-incontinence” injuries caused by the motor accident of 21 November 2011 which had given rise to a permanent impairment of 15%, (which meant the claimant was entitled to damages for pain and suffering).

Following this decision, the insurer obtained a further medico-legal report from Dr Korbel, Urologist, dated 6 November 2014 and made an application that sought for a further medical assessment to overturn the determination of 15%. This report contended the fact that the urological issues were not caused by the accident, but were rather pre-existing complaints. Remarkably, the conclusion in the report from Dr Korbel was ascertained without an examination of the claimant. Furthermore, the report did not consider the comprehensive history of the claimant’s urology symptoms before and after the accident.

By the time the case was at the hearing stage with a Claims Assessor from the Motor Accidents Authority) the insurer made a further application for a further medical assessment with the Claims Assessor, which was also refused.

The Claims Assessor anticipated that a further medical assessment would further delay the resolution of the proceedings. As such, the Claims Assessor opted to consider the persuasiveness of Dr Korbel’s report and determined whether a further assessment was required based on the evidence available. In doing so, the Claims Assessor considered the following:

  • The determination of the medical assessor dated 4 April 2014 accounted for the  comprehensive clinical history of the claimant, which was omitted by Dr Korbel.
  • The medical assessor examined the claimant and arrived to a conclusion.
  • The medical assessor and Dr Korbel were experts in the field of urology
  • Dr Korbel could only professionally determine that the claimant’s symptoms may have arisen after childbirth, as opposed to the symptoms being solely caused by the accident.

The Claims Assessor having regard to the abovementioned issues refused the insurer’s application for a further medical assessment. As such, the insurer appealed to the Supreme Court on the refusal based upon the following grounds:

(i) The Claims Assessor failed to afford procedural fairness to the parties, in that he failed to give the parties an opportunity to be heard on the issue of Dr Korbel’s non-examination of the claimant. It was submitted that had the Claims Assessor permitted the parties to be heard, he would have been informed that the claimant refused to attend for any medical examinations.

ii) As the issue of Dr Korbel’s non-examination of the claimant was not raised by either party before the Claims Assessor, the Claims Assessor was not entitled to make adverse findings regarding Dr Korbel’s non-examination of the claimant.

The Decision of the Supreme Court.

Justice Rotham addressed the arguments of the insurer and noted that the decision of the Claims Assessor to reject the application for a further medical assessment through relying on the determination of the medical assessor instead of the report of Dr Korber, had to be viewed in the context of the objects of the Motor Accidents Compensation Act, which encouraged the resolution of medical issues in an expeditious manner.

The Court recognized that the Claims Assessor bore in his mind about the impending delay in the case if a further medical assessment was granted. In addition, the Court was satisfied that the Claims Assessor had critically considered the persuasiveness of Dr Korbel’s report before rejecting the insurer’s application through accentuating that Dr Korbel’s report at most offered an open conclusion and such a conclusion was ascertained without an examination.  

To the question that the insurer was denied procedural fairness to address to the Claims Assessor that Dr Korbel could not examine the claimant, His Honour held that the insurer should have anticipated that the Claims Assessor would have given weight to the non- examination.. The insurer was not denied the opportunity to reasonably apprehend that the point might become a live issue.

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