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Bi v Mourad

Bi v Mourad

Case [2010] NSWSC 17 3 February 2010

Natural Justice & Procedural Fairness

Administrative Law

Civil Litigation & Procedure

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CITATION: Glover-Chambers v Motor Accidents Authority of New South Wales & Anor [2010] NSWSC 17

HEARING DATE(S): 7 October 2009

JUDGMENT DATE :
3 February 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) A declaration that the decision of the proper officer of the Motor Accidents Authority of New South Wales made on 14 October 2008 is vitiated by error of law.
(2) That the decision be quashed and remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.
(3) That the second defendant pay the plaintiff’s costs of the proceedings as agreed or assessed.

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Supreme Court Act 1970

CATEGORY: Principal judgment

CASES CITED: Ackling v QBE Insurance (Australia) Ltd & Anor [2009] NSWSC 881
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
Wilkie v Motor Accidents Authority of New South Wales [2007] NSWSC 1086

PARTIES: Alana Glover-Chambers (Plaintiff)
Motor Accidents Authority of New South Wales ( First Defendant)
QBE Insurance (Second Defendant)

FILE NUMBER(S): SC 30012/2009

COUNSEL: A C Canceri (Plaintiff)
Submitting Appearance (First Defendant)
M Snell (Second Defendant)

SOLICITORS: CMC Lawyers (Plaintiff)
Crown Solicitor (First Defendant)
QBE Insurance (Australia) Limited (Second Defendant)

LOWER COURT JURISDICTION: Motor Accidents Authority of NSW

LOWER COURT FILE NUMBER(S): 2007/02/0243RM

LOWER COURT JUDICIAL OFFICER : Brendan Ballach (Authority's proper officer)

LOWER COURT DATE OF DECISION: 14 October 2008

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

3 FEBRUARY 2010

30012/09 ALANA GLOVER-CHAMBERS v MOTOR ACCIDENTS AUTHORITY OF NSW & ANOR

JUDGMENT

1 HER HONOUR: In March 2004 Alana Glover-Chambers was injured as a passenger in a car accident when the driver lost control of the car whilst making a right-hand turn. Her entitlement to damages in respect of the injuries she received is governed by the Motor Accidents Compensation Act 1999. A claimant under that Act is not entitled to damages for non-economic loss unless the degree of permanent impairment as a result of injuries caused by the accident is greater than 10% (s 131 of the Act).

2 The Act prescribes procedures for the resolution of a dispute between the parties as to whether the degree of impairment meets that threshold (Part 3.4 of the Act). The dispute may be referred to a medical assessor appointed under the Act, who is required to give a certificate as to the matter referred. There is a limited right to have such an assessment reviewed by a review panel of medical assessors, who may either confirm the original certificate or issue a new certificate.

3 Subject to certain exceptions, the certificate of the medical assessor or review panel then stands as conclusive evidence of the matters certified. However, pursuant to s 62 of the Act, the matter may still be referred again for further medical assessment in limited circumstances.

4 On 23 August 2007, a review panel of medical assessors certified the degree of impairment suffered…

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 Bi v Mourad

Details

AGLC: Glover-Chambers v Motor Accidents Authority (NSW) [2010] NSWSC 17
Case: [2010] NSWSC 17
Decision Date: 3 February 2010

CaseChat Overview and Summary

In this case, Alana Glover-Chambers sought a declaration that a decision by the Motor Accidents Authority of New South Wales (MAA) was vitiated by error of law, and that the decision be quashed and remitted for redetermination. The decision in question was the refusal to refer Ms Glover-Chambers' claim for further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW). The refusal was based on the contention that the additional information provided would not have a material effect on the outcome of the previous assessment. The central issue before the court was whether the MAA's proper officer erred in law by not correctly applying s 62 of the Act when dismissing Ms Glover-Chambers' application for further medical assessment.

The court found that the proper officer had indeed erred in law by imposing an additional hurdle not required by the Act. The Act only required that the additional information be "relevant," meaning it must be capable of having a material effect on the outcome of the previous assessment. The proper officer, however, posed the question whether he was convinced that the additional information would alter the outcome, which was an additional requirement not imposed by the legislation. This error of law rendered the decision vitiated, and the decision was quashed and remitted to the MAA for redetermination in accordance with law. The court also ordered that the second defendant, QBE Insurance, pay the plaintiff's costs of the proceedings.

In reaching this decision, the court considered the relevant legislation, the history of the case, and the proper officer's reasons for dismissing the application. The court concluded that the proper officer's question imposed an additional hurdle not required by the Act and that the decision should be quashed and remitted for redetermination in accordance with law.

Orders