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Allianz Australia Insurance Limited v Bennett

Allianz Australia Insurance Limited v Bennett

Case [2020] NSWSC 825 29 June 2020

Judicial Review

Statutory Construction

Breach of Contract

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Allianz Australia Insurance Limited v Bennett [2020] NSWSC 825
Hearing dates: 23 April 2020
Date of orders: 29 June 2020
Decision date: 29 June 2020
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court declares that:
(1) The certificate and reasons of the review panel dated 9 September 2019 as it relates to findings on whole person impairment arising from the accident on 29 August 2019 is vitiated by an error of law and jurisdictional error.
The Court makes an order:
(2) In the nature of certiorari removing into the Court the certificate and reasons of the review panel dated 9 September 2019 as it relates to findings on whole person impairment and quashing that certificate.
The Court further orders that:
(3) The matter is remitted to the State Insurance Regulatory Authority to be determined according to law.
(4) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:
ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Review of a certificate of a review panel –Failure to properly apply cl 1.34 of the Motor Accident Permanent Impairment Guidelines – Whether dementia is a physical or psychological injury for the purposes of assessing impairment

Legislation Cited:
1.5, 1.6, 1.7, 1.21, 1.32, 1.33, 1.34, 1.35, 1.36, 1.37, 1.213
Motor Accident Permanent Impairment Guidelines, cls
Motor Accidents Compensation Act 1999 (NSW), ss 44, 58, 61, 63, 131, 133
Supreme Court Act 1970 (NSW), s 69

Cases Cited:
Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443
Allianz Australia Insurance Ltd v Larriera [2016] NSWSC 441
Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
DNM Mining Ply Ltd v Barwick [2004] NSWCA 137
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26
GIO General v Smith & Ors; Insurance Australia t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802
Jobling v Associated Dairies [1982] AC 794
K-Mart Australia Ltd v McCann [2004] NSWCA 283
Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366
Rodger v De Gelder (2015) 71 MVR 514
Smith v Insurance Australia [2018] NSWSC 1606
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64

Category: Principal judgment
Parties: Allianz Australia Insurance Limited (Plaintiff)
Ian Bennett (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Wayne Mason, Michael Diamond and Peter Wallace in their capacity as medical assessors of SIRA, comprising the Medical Assessors Review Panel appointed by SIRA (Third Defendant)
Representation:
Counsel:
K Rewell SC with J Gumbert (Plaintiff)
J Turnbull SC with M Cleary (First Defendant)
Solicitors:
Holman Webb Lawyers (Plaintiff)
Gerard Malouf & Partners (First Defendant)
Submitting Appearances, Crown Solicitor (Second & Third Defendants)

File Number(s): 2019/354022
Publication restriction: Nil

Judgment

HER HONOUR: This is a judicial review of the review panel of the State Insurance Regulatory Authority (“SIRA”).…

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.

Continue reading Allianz Australia Insurance Limited v Bennett

Details

AGLC: Allianz Australia Insurance Limited v Bennett [2020] NSWSC 825
Case: [2020] NSWSC 825
Decision Date: 29 June 2020

CaseChat Overview and Summary

In the case of Allianz Australia Insurance Limited v Bennett, the dispute centred around the interpretation and application of the Motor Accident Permanent Impairment Guidelines by the State Insurance Regulatory Authority (SIRA). Allianz sought judicial review of a decision by SIRA, which had reviewed a certificate issued by a panel assessing Bennett's level of permanent impairment following a motor accident. The core legal issue was whether dementia should be classified as a physical or psychological injury in the context of the impairment assessment, and whether SIRA had correctly applied clause 1.34 of the Guidelines.

The court had to determine whether SIRA had failed to properly apply clause 1.34 of the Guidelines, which addresses the assessment of permanent impairment due to a combination of physical and psychological injuries. The court examined the legislative framework, the Guidelines, and the specific facts of Bennett's case to assess whether SIRA had adhered to the correct legal principles in making its decision. A pivotal point was the classification of dementia, which is often contested as either a physical or psychological condition.

The court concluded that SIRA had not correctly applied clause 1.34 of the Guidelines. It found that SIRA had misconstrued the nature of dementia in the context of Bennett's impairment assessment. By failing to appropriately consider the interplay between physical and psychological impairments as outlined in the Guidelines, SIRA had erred in its determination. The court held that dementia could be regarded as both a physical and psychological injury, depending on the circumstances, and that SIRA needed to consider both aspects when assessing impairment. The decision was quashed, and the matter was remitted back to SIRA for reconsideration in light of the court's findings.

In light of the above, the court ordered that the decision of SIRA be quashed, and the matter be remitted for reconsideration in accordance with the court's reasoning. The court did not make any orders regarding costs.

Orders