Dominice v Allianz Insurance - [2016] NSWSC 1241

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dominice v Allianz Insurance [2016] NSWSC 1241
Hearing dates: 31 August 2016
Date of orders: 31 August 2016
Decision date: 31 August 2016
Jurisdiction: Common Law - Administrative Law
Before: Fagan J
Decision:
1. The summons is dismissed.
2. The plaintiff is to pay the defendants costs.

Catchwords:
ADMINISTRATIVE LAW – judicial review of decision to refer application to panel of medical assessors – Motor Accidents Compensation Act 1999 (NSW), s 63(3) – inconsistencies in clinical findings and observations – Permanent Impairment Guidelines 2007 (NSW), cl 1.43 – whether error of law on the face of the record arising from failure to consider whether medical assessment would have differed had inconsistencies been brought to claimant’s attention – whether proper officer erred by considering non-compliance with cl 1.43 as cause for reasonable suspicion that medical assessment was incorrect in a material respect – whether precondition in s 63(3) is a jurisdictional fact – whether proper officer’s decision was unreasonable
STATUTORY INTERPRETATION – construction of Permanent Impairment Guidelines (NSW), cl 1.43 – purpose of assessor’s duty to bring inconsistencies to claimant’s attention – whether procedural fairness afforded by cl 1.43 limited to claimant’s benefit
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Permanent Impairment Guidelines 2007 (NSW)
Cases Cited: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848
Frost v Kourouche [2014] NSWCA 39
Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141
Minister For Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Category: Principal judgment
Parties: Jessye Dominice (Plaintiff)
Allianz Australia Insurance trading as Allianz Insurance (1st Defendant)
State Insurance Regulatory Authority (2nd Defendant)
Representation:
Counsel:
Mr Adrian Canceri (Plaintiff)
Ms Jnana Gumbert (1st Defendant)
Solicitors:
Mr Mark Capolupo, CMC Lawyers (Plaintiff)
Mr Grant Galvin (1st Defendant)

File Number(s): 2015/336946

Judgment

In these proceedings the plaintiff seeks judicial review of a decision made by the proper officer of the State Insurance Regulatory Authority ("the Authority") under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). That is, a decision to refer a medical assessment of the plaintiff to a panel of assessors for review.
On 25 July 2013 the plaintiff was the driver of a motor vehicle which sustained a rear end collision. She claims to have suffered injury to her neck, to her thoracic and lumbar spine and to both shoulders. She also claims that pain and restriction of movement, consequent upon spinal injury, has affected her arms, hips and legs.
In early July 2014 the plaintiff was medically examined in connection with her claim for compensation by Dr Kenna. He was engaged by the first defendant…

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: [2016] NSWSC 1241
Decision Date: 31 August 2016

CaseChat Overview and Summary

Dominice v Allianz Insurance involved a claimant seeking compensation under the Motor Accidents Compensation Act 1999 (NSW). The dispute centred on the insurer's decision to refer the claimant's application to a panel of medical assessors. The claimant argued that the insurer had failed to consider whether inconsistencies in the medical findings would have affected the assessment if brought to their attention, and that the insurer had improperly relied on non-compliance with the Permanent Impairment Guidelines 2007 (NSW), cl 1.43 as a basis for suspicion about the correctness of the assessment.

The court had to determine whether the insurer's failure to consider the potential impact of inconsistencies on the assessment constituted an error of law on the face of the record, and whether the decision to refer the application to the panel was unreasonable. The court also needed to interpret cl 1.43 of the Permanent Impairment Guidelines, specifically the purpose of the assessor's duty to bring inconsistencies to the claimant's attention. Additionally, the court had to consider whether the precondition in s 63(3) of the Motor Accidents Compensation Act 1999 (NSW) is a jurisdictional fact and whether the procedural fairness afforded by cl 1.43 is limited to the claimant's benefit.

The court found that the insurer's failure to consider the impact of inconsistencies on the assessment constituted an error of law. The court held that the proper officer had erred by considering non-compliance with cl 1.43 as a cause for reasonable suspicion that the medical assessment was incorrect in a material respect. The court also clarified that the precondition in s 63(3) is not a jurisdictional fact, and that procedural fairness under cl 1.43 is not limited to the claimant's benefit. Consequently, the court concluded that the insurer's decision to refer the application to the panel was unreasonable.

As a result of the court's decision, the insurer's decision to refer the claimant's application to the panel was quashed. The matter was remitted to the insurer for reconsideration in light of the court's findings. The court's interpretation of cl 1.43 of the Permanent Impairment Guidelines and the clarification of the precondition in s 63(3) provided important guidance for future cases involving similar issues.

Orders