Chan v AAI Limited - [2020] NSWSC 1272

Supreme Court

New South Wales

Medium Neutral Citation: Chan v AAI Limited [2020] NSWSC 1272
Hearing dates: 17 September 2020
Date of orders: 18 September 2020
Decision date: 18 September 2020
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Set aside the decision of the second defendant, in her capacity as proper officer of the third defendant dismissing the plaintiff’s application for a further medical assessment, dated 3 February 2020 made pursuant to s 62 of the Motor Accidents Compensation Act 1999.
(2) Remit the matters the subject of the decision to the third defendant for reallocation to a different proper officer for determination of the plaintiff’s application according to law.
(3) Order the first defendant and the third defendant to pay the plaintiff’s costs.

Catchwords:
CIVIL PROCEDURE – where plaintiff injured in motor vehicle accident – where determination made that injury not caused by accident – where application made by plaintiff for judicial review of decision to refuse further medical assessment – s 62 and s 63 of Motor Accidents Compensation Act 1999 – whether medical opinions could only have a material effect on the outcome of the previous assessment if there was also new information – where legislation misconstrued – where error in decision – where proper test is whether material capable of having a material effect on outcome of previous assessment

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Jubb v Insurance Australia Ltd and Another (2016) 76 MVR 228; [2016] NSWCA 153
QBE Insurance (Australia) Ltd v Miller (1013) 67 MVR 322; [2013] NSWCA 442

Category: Principal judgment
Parties: Zion (Xun) Chan (Plaintiff)
AAI Limited trading as AAMI (First Defendant)
Representation:
Counsel:
J Sexton SC with J Sleight
J Turnbull SC with S Warren
Solicitors:
Neville Hourn + Borg Legal (Plaintiff)
Moray & Agnew (First Defendant)

File Number(s): 2020/126857
Publication restriction: Nil

Judgment

HIS HONOUR: By summons filed on 28 April 2020, Zion (Xun) Chan seeks the following orders:

An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decision of the second defendant, in her capacity as proper officer of the State Insurance Regulatory Authority, the third defendant, to dismiss the plaintiff’s application for a further medical assessment dated 3 February 2020 purportedly made pursuant to section 62 of the Motor Accidents Compensation Act 1999.

An order in the nature of mandamus remitting the matters the subject of the decision to the Authority for reallocation of the matter to a different proper officer of the Authority for determination of the application according to law.

Background

Dr Chan was injured in a motor vehicle accident on 14 December 2014. He claims damages for an injury to his cervical spine and his right shoulder. The former is not contentious. However, there is a dispute about whether Dr Chan’s shoulder injury was caused by the accident. The issue is important because Dr Chan is a surgeon who claims to have suffered significant economic loss as a…

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 Chan v AAI Limited

Details

AGLC: Chan v AAI Limited [2020] NSWSC 1272
Case: [2020] NSWSC 1272
Decision Date: 18 September 2020

CaseChat Overview and Summary

The case of Chan v AAI Limited involved a plaintiff who was injured in a motor vehicle accident. Following the accident, a determination was made that the plaintiff's injuries were not caused by the accident. The plaintiff subsequently sought a judicial review of the decision to refuse a further medical assessment. The case was heard in the court, where the plaintiff argued that the decision to deny further assessment was flawed.

The legal issues at the heart of the case were whether the medical opinions could only have a material effect on the outcome of the previous assessment if there was also new information, and whether the legislation had been misconstrued. The court was also required to determine whether there was an error in the decision and what the proper test should be in such cases.

The court found that the legislation had been misconstrued and that there was an error in the decision. The proper test, as outlined by the court, is whether the material is capable of having a material effect on the outcome of the previous assessment. The court emphasised that the presence of new information is not a prerequisite for a material effect on the outcome. The plaintiff's application for judicial review was subsequently allowed, and the decision to refuse a further medical assessment was set aside. The case was remitted back to the original tribunal for reconsideration in light of the court's findings.

Orders