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GIO General Limited v Smith

GIO General Limited v Smith

Case [2011] NSWSC 802 5 August 2011

Judicial Review

Natural Justice & Procedural Fairness

Statutory Interpretation

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: GIO GENERAL LIMITED v SMITH & Ors INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors [2011] NSWSC 802
Hearing dates: 19/7/2011
Decision date: 05 August 2011
Jurisdiction: Common Law - Administrative Law
Before: HOEBEN J
Decision:
In each Summons:
Declaration that the Review Panel's Certificate (and Reasons) dated 23 September 2010 issued by a Review Panel appointed by the Second Defendant under s63 of the Motor Accident Compensation Act 1999 is affected by an error of law on the face of the record.
Order in the nature of certiorari quashing the said Review Panel's Certificate (and Reasons).
Order that the matter be remitted to the Second Defendant to be reconsidered by a Review Panel in conformity with the reasons of this Court.

Catchwords: ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - two successive motor accidents - claimant suffering permanent psychiatric impairment arising from both motor accidents - referral to Medical Assessor - Review Panel revokes certificates of Medical Assessor and issues its own certificates - inconsistency between certificates and finding of psychiatric permanent impairment - error by Review Panel in interpreting Permanent Impairment Guidelines - failure by Review Panel to apportion impairment between the two motor accidents.
Legislation Cited: Motor Accident Compensation Act 1999
Supreme Court Act 1970
Workers Compensation Act 1926
Cases Cited:
Ackling v QBE Insurance (Aust) Ltd & Anor [2009] NSWSC 881; [2009] 53 MVR 377 at [83]
Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; [2006] 68 NSWLR 266; (2006) 47 MVR 74 at [17]
Allianz Australia Insurance Ltd v Motor Accidents Authority of NSW & Ors [2011] NSWSC 102
Bushby v Morris (1980) 1 NSWLR 81
Morris v George (1977) 2 NSWLR 552
Paice v Hill [2009] NSWCA 156; [2009] 53 MVR 114 at [2] - [3] and [59] - [60]
Category: Principal judgment
Parties:
GIO General Limited - Plaintiff
Graham Smith - First Defendant
The Motor Accidents Authority of NSW - Second Defendant
NRMA Insurance Limited - Third Defendant
Insurance Australia Ltd t/as NRMA Insurance - Plaintiff
Graham Smith - First Defendant
Motor Accidents Authority of NSW - Second Defendant
GIO General Limited - Third Defendant
Representation:
Matter No: 2010/00426730
Mr KP Rewell SC/Mr M Robinson - Plaintiff
Ms B Nolan - First Defendant
Submitting Appearance - Second Defendant
Mr C Jackson - Third Defendant

Matter No: 2011/00084996
Mr C Jackson - Plaintiff
Ms B Nolan - First Defendant
Submitting Appearance - Second Defendant
Mr KP Rewell SC/Mr M Robinson - Third Defendant
Matter No: 2010/00426730
Curwoods Lawyers - Plaintiff
Napier Keen - First Defendant
IV Knight, Crown Solicitor - Second Defendant
Moray & Agnew - Third Defendant
Matter No: 2011/00084996
Moray & Agnew - Plaintiff
Napier Keen - First Defendant
IV Knight, Crown Solicitor - Second Defendant
Curwoods Lawyers - Third Defendant

File Number(s): 2010/00426730 2011/00084996

Judgment

HIS HONOUR:

Nature of proceedings

The first defendant in each Summons, Graham Smith, suffered physical injuries in two motor accidents…

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 GIO General Limited v Smith

Details

AGLC: GIO General Limited v Smith [2011] NSWSC 802
Case: [2011] NSWSC 802
Decision Date: 05 August 2011

CaseChat Overview and Summary

The dispute between GIO General Limited and Mr. Smith was brought before the court, focusing on the interpretation and application of the Motor Accidents Compensation Act 1999 in the context of two successive motor accidents that resulted in Mr. Smith suffering permanent psychiatric impairment. The crux of the matter lay in the certificates issued by the Medical Assessor and subsequently revoked by the Review Panel, which led to inconsistencies in the determination of Mr. Smith's impairment rating. The court was tasked with determining whether the Review Panel had erred in law by misinterpreting the Permanent Impairment Guidelines and failing to appropriately apportion the impairment between the two accidents.

The legal issues before the court included whether the Review Panel had correctly applied the Permanent Impairment Guidelines, whether there was an error in the Panel's interpretation of those guidelines, and whether the Panel appropriately apportioned the impairment between the two motor accidents. The court had to consider whether the Review Panel's decision was legally sound and if the method used to calculate the impairment rating was in accordance with the legislative requirements.

The court found that the Review Panel had indeed erred in their interpretation of the Permanent Impairment Guidelines, leading to an incorrect assessment of Mr. Smith's impairment rating. Additionally, the Panel's failure to apportion the impairment between the two motor accidents was also deemed to be an error. The court concluded that these errors rendered the Review Panel's decision unlawful, as it did not accurately reflect the statutory framework intended to be applied. As a result, the court ordered that the Review Panel's decision be quashed, and the matter be remitted for reconsideration in line with the correct legal principles.

Orders