Judgment Date: 22 March 2012
QBE Insurance (Australia) Limited v Durkin and
Ors [2012] NSWSC 72
Supreme Court of NSW1
In Brief
- Once a claimant has prima facie established total incapacity
the evidentiary onus shifts to the insurer to prove a residual
earning capacity.
- An expert report provided by a lawyer in respect of an aspect
of a claim is not "provision of a legal service"
and is not caught by the Motor Accidents Compensation
Regulation 2005 and is, therefore, recoverable as a
disbursement.
Background
The matter arises out of an administrative law review of an
assessment of damages by CARS Assessor White.
The claimant sustained significant injuries, including organic
brain damage, in a motor vehicle accident. At the time of the
accident, he had a consistent history of working as a saturation
diver. This work is highly specialised, in demand, and very well
remunerated.
