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Peet v NRMA Insurance Ltd

Peet v NRMA Insurance Ltd

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Supreme Court

New South Wales

Medium Neutral Citation: Peet v NRMA Insurance Ltd [2015] NSWSC 558
Hearing dates: 2 May 2015
Date of orders: 14 May 2015
Decision date: 14 May 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Declaration that Medical Review Panel’s certificate and reasons void and of no effect

Catchwords: ADMINISTRATIVE LAW – judicial review – medical assessment under Pt 3.4 Motor Accidents Compensation Act – error of law by Medical Review Panel on issue of causation
Legislation Cited: Accident Compensation Act 1985 (Vic)
Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Cases Cited: Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881, 75 NSWLR 482
Nelkovska v Motor Accidents Authority of New South Wales [2012] NSWSC 819
Owen v Motor Accidents Authority of NSW [2012] NSWSC 560
Strong v Woolworths Ltd [2012] HCA 5, 24 CLR 182
Wallace v Kam [2013] HCA 19, 250 CLR 375
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 88 ALJR 52
Zanner v Zanner [2010] NSWCA 343, 79 NSWLR 702
Texts Cited: Motor Accidents Authority Permanent Impairment Guidelines - 1 October 2007
Fleming’s The Law of Torts, 10th Edition
Category: Principal judgment
Parties: Melissa Peet (plaintiff)
NRMA Insurance Ltd (1st defendant)
Dr Anthony Samuels (2nd defendant)
Dr Angelo Virgona (3rd defendant)
Dr Lorraine Dennerstein (4th defendant)
Motor Accident Authority of New South Wales (5th defendant)
The Medical Review Panel (6th defendant)
Representation:
Counsel:
EG Romaniuk SC & EE Grotte (plaintiff)
KP Rewell SC (1st defendant)
Solicitors:
Grant Gayler, Farrell Lusher (plaintiff)
Jeff Kelly, Moray & Agnew (1st defendant)
Richard Kelly, Acting Crown Solicitor for NSW, Crown Solicitor’s Office (2nd defendant, 3rd defendant, 4th defendant, 5th defendant & 6th defendant)

File Number(s): 2013/323138

Judgment

The plaintiff, Melissa Peet, claims damages under the Motor Accidents Compensation Act 1999 (“MAC Act”) for psychological injury said to have been suffered in a car accident near Deniliquin in the evening of 4 December 2007. It is her case that she veered off the road to avoid a collision with an oncoming truck, which was occupying most of the roadway. As a result, her car struck a number of guide posts, narrowly missing a tree. She was driving home from work at the time. The truck has not been identified and her claim is brought against the Nominal Defendant. Liability is disputed.`
These are proceedings for judicial review following her assessment by the Medical Assessment Service (“MAS”), pursuant to Pt 3.4 of the MAC Act. Importantly, that assessment was required to determine whether the plaintiff suffered a whole person impairment (“WPI”) as a result of a psychological injury caused by the accident greater than 10%: s 58(1)(d) of the MAC Act, the threshold which must be crossed for her to recover damages for economic loss: s 131. This was a long process, which need not be recounted in detail. It is sufficient to say that in April 2012, Assessor Moore certified that the plaintiff…

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 558
Decision Date: 14 May 2015

CaseChat Overview and Summary

The dispute before the court involved Peet, the appellant, and NRMA Insurance Ltd, the respondent. The case centred on the assessment of medical evidence provided by Peet to the respondent, NRMA Insurance Ltd, under Part 3.4 of the Motor Accidents Compensation Act. Peet sought judicial review of a decision by a Medical Review Panel that concluded that there was no causal link between a motor accident and his claimed injuries. The case was heard in the Supreme Court of New South Wales.

The central legal issues that the court had to determine were whether the Medical Review Panel had erred in law when it concluded that there was no causal link between the accident and Peet's injuries, and if this error was material to the decision. Specifically, the court needed to assess whether the panel had misapplied the statutory criteria or misunderstood the medical evidence provided. The court also needed to consider whether such an error warranted the grant of judicial review and the appropriate remedy.

In delivering the judgment, the court found that the Medical Review Panel had indeed made an error of law in its assessment of causation. The panel had failed to properly apply the statutory criteria and had misunderstood the medical evidence presented. The court held that this error was material as it directly impacted the panel's conclusion on causation, which was a critical aspect of Peet's claim. The court further determined that the error warranted the grant of judicial review and ordered the matter be remitted to a new panel for reconsideration. The court emphasised that the panel must correctly apply the statutory criteria and give due weight to the medical evidence in reaching its decision.

The final orders of the court were that the decision of the Medical Review Panel be quashed, and the matter be remitted for reconsideration by a differently constituted panel. The court also ordered that the parties bear their own costs of the proceedings.

Orders