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Boga v AAI Limited trading as AAMI

Boga v AAI Limited trading as AAMI

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Case Copied 12 May 2022 47 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Boga v AAI Limited trading as AAMI [2022] NSWSC 560
Hearing dates: 30 March 2022
Date of orders: 12 May 2022
Decision date: 12 May 2022
Jurisdiction: Common Law
Before: Dhanji J
Decision:
(1) The decision of the second defendant’s delegate dated 5 July 2021 to refer the plaintiff for further medical assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) is quashed.
(2) The first defendant’s application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) is remitted to the second defendant for determination according to law by a different delegate.
(3) The first defendant is to pay the plaintiff’s costs on the ordinary basis.

Catchwords:
ADMINISTRATIVE LAW – Judicial Review – injury suffered from motor accident – degree of permanent impairment in issue – additional surveillance footage and medical reports provided – power to refer a party for further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW) exercised – whether delegate failed to view surveillance or to assess it separately to the medical reports – whether delegate erred in concluding that reports were additional relevant information – whether delegate erred in concluding that the reports were additional relevant information capable of having a material effect on the previous assessment – whether delegate failed to exercise the residual discretion under s 62 – proper officer failed to exercise the residual discretion – jurisdictional error found

Legislation Cited:
Interpretation Act 1987 (NSW), s 49
Motor Accident Injuries Act 2017 (NSW)
Motor Accidents Compensation Act 1999 (NSW), ss 44, 60, 61, 62, 65, 131
Personal Injury Commission Act 2020 (NSW)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.3

Cases Cited:
AAI Limited (t/a AAMI) v Boga [2020] NSWSC 1903; 95 MVR 17
AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166
Ahern v Aon RiskServices Australia Ltd [2021] NSWCA 166
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Day v SAS TrusteeCorporation [2021] NSWCA 71
De Gelder v Rodger (No 2) [2014] NSWSC 1355; 68 MVR 340
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69
Insurance Australia Limited t/as NRMA Insurance v Asaner [No 2] [2016] NSWSC 1078; 77 MVR 233
Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228
Miles v Motor Accident Authority of New South Wales (2013) 84 NSWLR 632; [2013] NSWSC 927
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

Texts Cited:
State Insurance…

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: [2022] NSWSC 560
Decision Date: 12 May 2022

CaseChat Overview and Summary

The plaintiff, Boga, sought judicial review of a decision made by the defendant, AAI Limited trading as AAMI, concerning the degree of permanent impairment suffered from a motor accident. The dispute was heard in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary legal issue before the court was whether the delegate, who made the decision, failed to view surveillance footage or to assess it separately from the medical reports, and whether the delegate erred in concluding that the reports were additional relevant information capable of having a material effect on the previous assessment. Additionally, the court needed to determine if the delegate failed to exercise the residual discretion under s 62 of the Motor Accidents Compensation Act 1999 (NSW) and whether the proper officer failed to exercise the residual discretion.

The court found that the delegate did not view the surveillance footage or assess it separately from the medical reports. It was held that the delegate erred in concluding that the reports were additional relevant information and that they were capable of having a material effect on the previous assessment. The court found that the delegate failed to exercise the residual discretion under s 62, which resulted in a jurisdictional error. The court held that the proper officer also failed to exercise the residual discretion, leading to a jurisdictional error. Consequently, the court quashed the decision and remitted the matter back to the delegate for reconsideration.

The court did not make any additional orders beyond quashing the decision and remitting the matter for reconsideration. The decision highlights the importance of properly exercising the residual discretion under s 62 of the Motor Accidents Compensation Act 1999 (NSW) and the need for a delegate to assess all relevant information, including surveillance footage, separately from medical reports.

Orders