Insurance Australia Ltd v Clewley - [2015] NSWSC 1805

Supreme Court

New South Wales

Medium Neutral Citation: Insurance Australia Ltd v Clewley [2015] NSWSC 1805
Hearing dates: 7 December 2015
Date of orders: 15 February 2016
Decision date: 15 February 2016
Jurisdiction: Common Law - Administrative Law
Before: Fagan J
Decision:
1. The decision of the second defendant dated 7 August 2015 to refuse the plaintiff’s application for further medical assessment (made on 16 July 2015) under s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) is set aside.
2. The plaintiff’s application for further medical assessment is remitted to the third defendant for determination according to law.
Catchwords:
ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 62 – injury caused by motor accident – additional information – whether proper officer erred by failing to refer matter for further medical assessment on grounds of additional relevant information – whether information capable of having material effect on previous assessment outcome
WORDS AND PHRASES – “additional relevant information” – Motor Accidents Compensation Act 1999 (NSW), s 62
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Allavanja v NRMA Insurance Ltd [2010] NSWSC 1182
Miles v Motor Accident Authority of NSW [2013] NSWSC 927
Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443
Category: Principal judgment
Parties: Insurance Australia Ltd t/as NRMA Insurance (Plaintiff)
Morgan Clewley (Defendant)
Representation: Counsel:
Mark Robinson SC/Valerie Heath (Plaintiff)
No appearance (Defendant)

File Number(s): 2015/291879
Publication restriction: Nil

Judgment

The plaintiff is the third party insurer under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) of a motor vehicle which is alleged to have been at fault in an accident on 1 December 2010. The first defendant is Mr Clewley, a claimant for compensation under the Act, who contends that he suffered injury in that motor accident.
By summons filed 7 October 2015 the plaintiff seeks judicial review of a decision by the proper officer of the Motor Accidents Authority of NSW (“the Authority”). The proper officer is the second defendant to the summons and the Authority is the third defendant (now under its new name, State Insurance Regulatory Authority). The decision sought to be reviewed was made on 7 August 2015 pursuant to s 62 of the Act. The proper officer determined that a medical dispute between Mr Clewley (“the claimant”) and the plaintiff concerning the degree of whole person impairment suffered as a result of the motor accident should not be referred to a medical assessor for further assessment.
The claimant alleges that the accident caused soft tissue injuries to his left knee, his left shoulder and his cervical spine. Only the injury to the cervical spine and alleged symptoms in his left arm are significant for the purposes of these proceedings. The claimant says that the cervical spinal injury has caused dystonia (meaning spasm or abnormal contraction) in the muscles of the left side…

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: [2015] NSWSC 1805
Decision Date: 15 February 2016

CaseChat Overview and Summary

The matter before the court was a judicial review application brought by Insurance Australia Ltd against the respondent, Clewley. The primary dispute centred around the interpretation and application of section 62 of the Motor Accidents Compensation Act 1999 (NSW). Specifically, the issue was whether the proper officer, who had previously assessed Clewley's claim for compensation following a motor accident, erred by not referring the matter for further medical assessment when additional relevant information was presented.

The court had to determine whether the phrase "additional relevant information" in section 62 of the Motor Accidents Compensation Act 1999 (NSW) was capable of having a material effect on the outcome of the previous assessment. This required a nuanced understanding of the statutory language and the circumstances under which a referral for further assessment would be justified. Additionally, the court examined the administrative process and the discretion of the proper officer in handling such cases.

In examining the statutory provisions and the administrative context, the court found that the term "additional relevant information" in section 62 was indeed broad enough to include information that could materially affect the previous assessment. The court emphasised that the proper officer's discretion must be exercised with a view to ensuring that all relevant information is considered, particularly when it has the potential to change the outcome of the assessment. The court ruled in favour of the applicant, concluding that the proper officer had indeed erred by not referring the matter for further medical assessment upon the receipt of additional relevant information.

The final orders of the court were that the decision of the proper officer be quashed, and the matter be remitted back for reconsideration in light of the additional relevant information. The court highlighted the importance of thoroughness and due process in administrative decision-making, particularly in contexts where human health and compensation are at stake.

Orders