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Hunter v Insurance Australia Ltd

Hunter v Insurance Australia Ltd

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Case Copied 2 June 2021 10 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623
Hearing dates: On the papers
Decision date: 02 June 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Set aside the certificate issued by the third defendant on 30 September 2020.
(2)   Remit the matter to the second defendant for determination according to law.
(3)   Grant liberty to the plaintiff to apply if he presses the order that the matter be remitted to a differently constituted medical panel, and direct that any such application is to be made to the Associate to Adamson J in writing within 7 days and is to be accompanied by any submissions relied upon in support of the application.
(4)   Make no order as to costs.

Catchwords:
ADMINISTRATIVE LAW — Medical assessment under the Motor Accidents Compensation Act 1999 (NSW) — Review of medical assessment by a review panel — Review panel decided that injury sustained by medical treatment not caused by motor vehicle accident – Issue of causation — Original injury carries some risk that medical treatment administered by reason of it will cause further harm — An indirect, but foreseeable, consequence is sufficient to establish causation — Application of incorrect legal test amounts to an error on the face of the record

Legislation Cited:
Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 60, 61, 63, 65
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10

Cases Cited:
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Mahony v J. Kruschich (Demolitions) Proprietary Limited (1985) 156 CLR 522; [1985] HCA 37

Texts Cited:
Motor Accident Permanent Impairment Guidelines

Category: Principal judgment
Parties: John Hunter (Plaintiff)
Insurance Australia Ltd trading as NRMA Insurance (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
A Medical Review Panel Appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service (Third Defendant)
Representation:
Counsel:
S Maybury (Plaintiff)
Submitting appearance (First Defendant)
Submitting appearance (Second and Third Defendants)
Solicitors:
NSW Compensation Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2020/362656

Judgment

Introduction

By summons filed on 22 December 2020, John Hunter (the plaintiff) seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision made by the Medical Review Panel, the third defendant (the Panel), on 30 September 2020. The substantive relief which the plaintiff seeks is that the decision of the Panel be set aside. The plaintiff also seeks an order that the matter be remitted to a differently constituted panel for determination in accordance with law. The summons was filed within the three-month period prescribed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1).
The first defendant, Insurance Australia Ltd trading as NRMA Insurance (the insurer); the second defendant, State Insurance Regulatory Authority (the Authority); and the Panel have each filed submitting appearances.
For the…

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: [2021] NSWSC 623
Decision Date: 02 June 2021

CaseChat Overview and Summary

The case involved the applicant, Hunter, who sought a review of a decision by Insurance Australia Ltd, the respondent, under the Motor Accidents Compensation Act 1999 (NSW). Hunter claimed that injuries he sustained from medical treatment administered following a motor vehicle accident were compensable. The review panel, however, decided that the injuries were not caused by the motor vehicle accident and therefore not compensable. Hunter sought judicial review of the panel's decision in the Administrative Decisions (Judicial Review) Act 1977 (Cth).

The key legal issue was whether the injuries Hunter sustained from the medical treatment administered following the motor vehicle accident were causally connected to the accident. The court had to determine whether the correct legal test was applied by the review panel and whether the panel's decision was based on an error of law. Specifically, the court had to consider whether an indirect, but foreseeable, consequence of the accident was sufficient to establish causation.

The court found that the review panel applied an incorrect legal test in determining that Hunter's injuries were not caused by the motor vehicle accident. The panel had considered whether the injuries were directly caused by the accident, rather than whether the accident carried some risk that medical treatment administered by reason of it would cause further harm. The court held that an indirect, but foreseeable, consequence of the accident was sufficient to establish causation. The panel's application of an incorrect legal test amounted to an error on the face of the record. Consequently, the court allowed Hunter'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 in light of the correct legal test. The panel was directed to consider whether the original injury carried some risk that medical treatment administered by reason of it would cause further harm, and whether the injuries Hunter sustained from the medical treatment were a foreseeable consequence of the accident.

Orders