Alavanja v NRMA Insurance Ltd - [2010] NSWSC 1182

CITATION: Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182

HEARING DATE(S): 13 October 2010

JUDGMENT DATE :
26 October 2010

JURISDICTION: COMMON LAW

JUDGMENT OF: Davies J

DECISION: (1) The Summons is dismissed. (2) The Plaintiff is to pay the Defendants' costs of the proceedings.

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - referral for medical reassessment - proper construction of s 62 Motor Accidents Compensation Act 1999 - whether there was additional relevant information, whether the additional information was capable of having a material effect on the outcome of the previous assessment - further information not of a different kind from material available to first Assessor - further information merely a different opinion by another Doctor.

LEGISLATION CITED: Motor Accidents Compensation Act 1999

CATEGORY: Principal judgment

CASES CITED: Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

PARTIES:
Dragica Alavanja (Plaintiff)
NRMA Insurance Ltd (First Defendant)
The Motor Accidents Authority of New South Wales (Second Defendant)
Christopher Cornforth in his capacity as Proper Officer of the Medical Assessment Service of the Motor Accidents Authority of New South Wales (Third Defendant)

FILE NUMBER(S): SC 2010/117272

COUNSEL: B K Nolan (Plaintiff)
W Fitzsimmons (Defendants)

SOLICITORS: NSW Compensation Lawyers (Plaintiff)
Holman Webb Lawyers (First Defendant)
Crown Solicitor's Office (Second Defendant)
Crown Solicitor's Office (Third Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

26 OCTOBER 2010

2010/117272 ALAVANJA V NRMA INSURANCE LTD

JUDGMENT

1 The Plaintiff was injured in a motor vehicle accident on 9 April 2006. On 23 July 2007 she made application for assessment of permanent impairment by the Medical Assessment Service (“the MAS”) at the Motor Accidents Authority of NSW (“the MAA”).

2 On 11 September 2007 the Assessor, Dr Nigel Menogue, issued his Statement of Reasons and Certificate where he determined that her whole person impairment was not greater than 10%.

3 The Plaintiff then made application under s 62(1)(a) Motor Accidents Compensation Act 1999 for a further assessment. As part of that application she provided 4 statements by herself and members of her family and, significantly, a medico-legal report dated 19 December 2007 from a Dr Elias Matalani.

4 The first application for a further assessment was dated 28 October 2008 and was refused on 12 January 2009. The second application was made on 24 April 2009 and was refused on 13 July 2009.

5 The Plaintiff now seeks declarations that what are described as the “purported decisions” of the Proper Officer of the MAS were no decisions at all, an order in the nature of certiorari and an order in the nature of mandamus to compel the Proper Officer to refer the Plaintiff for further medical assessment.

Legal principles

6 Section 62 of the Act provides…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 1182
Decision Date: 26 October 2010

CaseChat Overview and Summary

The case of Alavanja v NRMA Insurance Ltd was heard in the Supreme Court of Queensland. The plaintiff, Mr Alavanja, sought judicial review of a decision made by NRMA Insurance Ltd regarding his motor accident claim. The crux of the dispute was the interpretation and application of section 62 of the Motor Accidents Compensation Act 1999, specifically concerning the referral for medical reassessment. The plaintiff argued that additional information, comprising a second medical opinion, should have led to a different outcome in the assessment of his claim.

The central legal issue before the court was whether the additional information provided by the second medical opinion could be considered "relevant information" under section 62 of the Act. Furthermore, the court had to determine if this information was of a different kind from that which was previously available to the original assessor, and whether it was capable of having a material effect on the outcome of the initial assessment. The court examined whether the additional information was merely a different opinion by another doctor or if it introduced new facts or circumstances that warranted a reassessment.

In delivering the judgment, the court held that the additional information did not constitute relevant information under section 62 of the Act. The court reasoned that the second medical opinion did not introduce new facts or information of a different kind from that which was available to the original assessor. The additional information was simply another doctor's perspective on the same material, and thus, it did not meet the threshold for a referral under the Act. Consequently, the court dismissed the plaintiff's application for judicial review.

As a result of the court's decision, the plaintiff's application for judicial review was dismissed, and no further reassessment was ordered. The decision underscored the importance of distinguishing between additional opinions and new or different kinds of information when considering referrals for medical reassessment under the Motor Accidents Compensation Act 1999.

Orders