AAI Ltd T/as GIO v McGiffen

AAI Ltd trading as GIO (the insurer) appealed a decision of the Supreme Court of New South Wales to the Court of Appeal. The dispute concerned a claim for compensation for injuries allegedly suffered by Mr McGiffen in a motor accident. A medical assessment found that Mr McGiffen's injuries were not caused by the motor accident, and therefore, there was no requirement to assess the degree of permanent impairment. This finding was subsequently confirmed by a review panel. Mr McGiffen then applied to the Supreme Court for judicial review of the review panel's decision.

The primary judge quashed the certificate of the review panel, finding that it had committed a jurisdictional error. The insurer argued on appeal that the primary judge erred in concluding that the review panel had made an error of law on the face of the record by finding a critical fact on the basis of no evidence. The central legal issue was whether the review panel, in confirming the finding that the injuries were not caused by the motor accident, had failed to apply itself to the real question posed by section 58(1)(d) of the *Motor Accidents Compensation Act 1999* (NSW), thereby failing to exercise its statutory function and committing a jurisdictional error.

The Court of Appeal held that the review panel had indeed committed a jurisdictional error. The panel's finding that the injuries were not caused by the accident was a finding of fact that was central to the determination of the claim. However, the court found that the panel had failed to properly consider the evidence before it in relation to causation, and in doing so, had not applied itself to the actual question required by section 58(1)(d) of the Act. This failure meant that the statutory function entrusted to the panel had not been exercised, constituting a jurisdictional error. The appeal was therefore dismissed.