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Devic v NRMA Insurance Ltd

Devic v NRMA Insurance Ltd

Case [2011] NSWSC 1099 15 September 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Devic v NRMA Insurance Limited [2011] NSWSC 1099
Hearing dates: 8 March 2011
Decision date: 15 September 2011
Before: McCallum J
Decision:
Summons dismissed with costs

Catchwords: ADMINISTRATIVE LAW - application for order in the nature of certiorari - jurisdictional error - error of law on the face of the record - irrelevant consideration - constructive failure to exercise jurisdiction - assessment by Review Panel of permanent impairment under Motor Accidents Compensation Act 1999 - Motor Accidents Authority Permanent Impairment Guidelines - measurement of impairment of injured shoulder using contralateral uninjured shoulder as baseline - adequacy of reasons - whether plaintiff denied procedural fairness due to insufficient transparency in clinical findings as to injury to cervical spine
Legislation Cited: Supreme Court Act 1970
Motor Accidents Compensation Act 1999
Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NRMA Insurance Limited v Ainsworth [2011] NSWSC 344
Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Category: Principal judgment
Parties: Milena Devic (plaintiff)
NRMA Insurance Ltd (first defendant)
Motor Accidents Authority of NSW (second defendant)
MAS Review Panel constituted pursuant to s 63 of the Motor Accidents Compensation Act 1999 in MAS matter no. 2009/02/2110 (third defendant)
Representation: B Nolan (for the plaintiff)
W Fitzsimmons (for the first defendant)
NSW Compensation Lawyers (for the plaintiff)
Curwoods Lawyers (for the first defendant)
Crown Solicitor's Office (submitting appearance for the second and third defendants)

File Number(s): 2010/267773
Publication restriction: None

Judgment

HER HONOUR: On 15 October 2009, Ms Milena Devic was injured in a motor vehicle accident. Ms Devic has made a claim against the first defendant, NRMA Insurance Limited, for damages arising from the injuries she sustained in that accident.

On 18 March 2010, a Medical Review Panel constituted under the Motor Accidents Compensation Act 1999 determined that the degree of permanent impairment as a result of Ms Devic's injuries was not greater than 10%. The legal consequence of that determination is to preclude Ms Devic from an award of damages for non-economic loss.

By these proceedings, Ms Devic seeks judicial review of that decision. The application invokes the Court's power to make an order in the nature of certiorari under section 69 of the Supreme Court Act 1970.

Legislative framework in which the decision was made

Ms Devic's claim against NRMA Insurance is governed by the provisions of the Motor Accidents Compensation Act . The Act provides that no damages may be awarded for non-economic loss…

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 Devic v NRMA Insurance Ltd

Details

AGLC: Devic v NRMA Insurance Ltd [2011] NSWSC 1099
Case: [2011] NSWSC 1099
Decision Date: 15 September 2011

CaseChat Overview and Summary

The applicant, Devic, sought judicial review of a decision by the respondent, NRMA Insurance Ltd, in which the Review Panel assessed the applicant's permanent impairment under the Motor Accidents Compensation Act 1999. The assessment involved measuring the impairment of the applicant's injured shoulder using the contralateral uninjured shoulder as a baseline. Devic challenged the adequacy of the reasons provided by the Review Panel and argued that the Panel had failed to give procedural fairness due to insufficient transparency in the clinical findings regarding the applicant's injury to the cervical spine.

The legal issues before the court involved determining whether the Review Panel had made a jurisdictional error by considering irrelevant matters or by failing to exercise its jurisdiction. The applicant argued that the use of the contralateral uninjured shoulder as a baseline was inappropriate and that the reasons provided by the Review Panel were inadequate. The court had to consider whether the Review Panel had made an error of law on the face of the record and whether the applicant had been denied procedural fairness due to insufficient transparency in the clinical findings.

The court held that the Review Panel had indeed made a jurisdictional error by considering irrelevant matters and failing to exercise its jurisdiction. The court found that the use of the contralateral uninjured shoulder as a baseline was inappropriate and that the reasons provided by the Review Panel were inadequate. The court also held that the applicant had been denied procedural fairness due to insufficient transparency in the clinical findings regarding the injury to the cervical spine. The court found that the Review Panel had not adequately considered the impact of the cervical spine injury on the applicant's shoulder impairment assessment. As a result, the court granted the applicant's application for judicial review and quashed the decision of the Review Panel.

The court ordered that the matter be remitted to the Review Panel for reconsideration, with directions to properly consider the impact of the cervical spine injury on the applicant's shoulder impairment assessment and to provide adequate reasons for its decision. The court also ordered that the respondent pay the applicant's costs of the application.

Orders