Insurance Australia Ltd v Mangogna - [2023] NSWPICMP 509

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Mangogna [2023] NSWPICMP 508
CLAIMANT:	Sophia Mangogna
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	13 October 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury on 8 January 2021; the dispute related to whether she sustained non threshold physical injuries; a previous Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review; current review by insurer of finding that claimant sustained non-threshold physical injury; Panel raised that current review lacking in substance and/or constituted an abuse of process as non-threshold finding for psychological injury not challenged; insurer submitted that it intended to seek a further application of previous MA of non-threshold psychological injury; that finding was dependent upon motor accident caused physical injury; insurer relied on additional evidence disputing physical injury caused by motor accident; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application not an abuse of process or lacking in substance; insurer entitled to pursue review and had explained why it was proceeding; dismissal of review would deprive insurer of existing right; insurer’s submission raised issues of causation of physical injuries; that conclusion may undercut the finding of the previous MA that the psychological injury was caused by the back injury caused by the motor accident; Held – application to dismiss the review of the medical assessment rejected.
DETERMINATIONS MADE:	The application to dismiss the review of the medical assessment pursuant to s 54 of the Personal Injury Commission Act 2020 is rejected.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons I decline to summarily dismiss the review of the medical assessment.
Ms Sophia Mangogna (the claimant) alleges that she suffered injury in a motor accident on
8 January 2021. The claimant was a rear seat passenger in a stationary vehicle when the insured vehicle reversed and collided with the claimant’s vehicle.
The insurer is liable to pay to Ms Mangogna any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that she sustained non-minor injuries. Pursuant to Schedule 2, cl 2 of the MAI Act these matters are declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
In a certificate dated 9 September 2022 Medical Assessor Hong concluded that…

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: [2023] NSWPICMP 509
Decision Date: 13 October 2023

CaseChat Overview and Summary

The parties involved in the case of Insurance Australia Ltd v Mangogna were the insurer, Insurance Australia Ltd, and the claimant, Mangogna. The dispute revolved around whether the claimant had sustained non-threshold physical injuries in a motor accident that occurred on 8 January 2021. The matter was brought before the court for a review of the Medical Assessor's (MA) finding that the claimant had indeed suffered a non-threshold psychological injury, which was not the subject of this review. The primary contention was whether the insurer's current review of the finding that the claimant sustained a non-threshold physical injury was lacking in substance or constituted an abuse of process, considering that the non-threshold finding for a psychological injury had not been challenged.

The legal issues that the court needed to decide were whether the dismissal of the review application should be exercised, and if the current review by the insurer was lacking in substance or an abuse of process. The court considered the principles of Insurance Australia Ltd v Fayed, which indicated that dismissal applications should be exercised sparingly and with exceptional caution. The insurer argued that it intended to seek a further application regarding the previous MA's finding of a non-threshold psychological injury, which was dependent on the motor accident causing a physical injury. The insurer also presented additional evidence disputing the physical injury caused by the motor accident. The court had to weigh the insurer's right to pursue a review against the potential for an abuse of process.

The court concluded that the present review application was neither an abuse of process nor lacking in substance. The insurer had a legitimate reason to proceed with the review, and it had explained its intention to seek a further application concerning the previous MA's finding. Dismissing the review would have deprived the insurer of its existing right to challenge the medical assessment. The court further noted that the insurer's submission raised issues of causation of physical injuries, which could potentially affect the previous MA's conclusion that the psychological injury was caused by the back injury resulting from the motor accident. Thus, the court held that the application to dismiss the review of the medical assessment was rejected.

The court's decision allowed the insurer to pursue the review and address the issues of causation of physical injuries in the motor accident. This ruling upheld the insurer's right to challenge the medical assessment while considering the potential implications of the findings on the claimant's psychological injury. The court's careful consideration of the principles and the insurer's submissions ensured a fair and balanced outcome in this case.

Orders