Insurance Australia Ltd v Fayed

In the matter of Insurance Australia Ltd versus Fayed, the dispute centred around the claimant’s entitlement to proposed treatment and care following a motor accident that occurred on 14 November 2021. The case was heard by the Personal Injury Commission of New South Wales. The claimant had suffered injuries in a side-swipe collision and was seeking approval for future surgery. The insurer had previously assessed the claimant’s injuries as minor, now referred to as threshold injuries.

The key legal issues before the court were whether the application to summarily dismiss the claimant's review was “lacking in substance” and whether the dismissal application should be exercised sparingly and with exceptional caution. The court needed to determine if the application met the criteria for summary dismissal under section 54 of the Personal Injury Commission Act 2020. Additionally, the court had to consider the implications of the Medical Assessor's findings regarding signs of radiculopathy and the necessity of the proposed treatment.

In examining these issues, the court noted that the Panel had found the application "lacking in substance" and recommended its dismissal. However, the court applied the principles from Perera v Genworth Financial Mortgage Insurance Pty Ltd and The Owners Corporation of Strata Plan 4521 v Zouk, which emphasised the importance of exercising dismissal powers sparingly and with caution. The court found that the original Medical Assessor had arguably identified two signs of radiculopathy in the C6 distribution, suggesting that the proposed treatment was both reasonable and necessary. The court also highlighted that a finding in favour of the claimant in the present proceedings did not automatically render the application lacking in substance, even if the claimant needed to establish a non-threshold injury in other proceedings. Consequently, the application to summarily dismiss the review was rejected.

The court's decision ensured that the claimant's right to seek a review was upheld, and the matter was referred back to the decision-maker for further consideration. This outcome underscored the importance of thoroughly evaluating each application to dismiss and the need to balance procedural efficiency with the rights of claimants.