Pham v NRMA Insurance Limited - [2015] NSWSC 1205

Supreme Court

New South Wales

Medium Neutral Citation: Pham v NRMA Insurance Limited [2015] NSWSC 1205
Hearing dates: 02 June 2015
Date of orders: 26 August 2015
Decision date: 26 August 2015
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The summons filed 12 December 2014 is dismissed.
(2) The plaintiff is to pay the first defendant’s costs on an ordinary basis as agreed or assessed.
Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – decision of a medical review panel – determination that consequent psychiatric injuries were not caused by motor vehicle accident - whether review panel applied the correct test for causation – whether review panel misapplied Allianz Australia Insurance Ltd v Gonzales [2013] NSWSC 362
Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: AAI Limited v Motor Accidents Authority of New South Wales [2015] NSWSC 912
Ackling v QBE Insurance (Aust) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881
Allianz Australia Insurance Ltd v Gonzales (2013) 65 MVR 286; [2013] NSWSC 362
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82
Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650
Peet v NRMA Insurance [2015] NSWSC 558
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Category: Principal judgment
Parties: Jenny Pham (Plaintiff)
NRMA Insurance Limited ABN 11000016722 (First Defendant)
Motor Accidents Authority of New South Wales t/a Motor Accidents Authority (Second Defendant)
A Review Panel appointed by the Motor Accidents Authority of New South Wales constituted by Assessors Lewin, Mason and Parsonage (Third Defendant)
Representation:
Counsel:
E Romaniuk SC & E Grotte (Plaintiff)
A Poljak (First Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
Hunt & Hunt Lawyers (First Defendant)
L Armstrong, Crown Solicitor for NSW (Second and Third Defendants)

File Number(s): 2014/365751
Publication restriction: Nil

Judgment

HER HONOUR: This is an application for judicial review of the decision of a medical assessor’s review panel.
By summons filed 12 December 2014, the plaintiff seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and statement of reasons issued by the second defendant on 30 June 2014 and constituted by the third defendant is void and of no effect.
The plaintiff is Jenny Pham (“Ms Pham”). The first defendant is NRMA Insurance Limited (“NRMA”). The second defendant is the Motor Accidents Authority of New South Wales (“the MAA”). The third defendant is a medical assessor’s review panel comprising Assessors Lewin, Mason and Parsonage (“the Review Panel”). The second and third defendants have filed submitting appearances. Ms Pham relied on the affidavit of her solicitor Michael Lawandi filed 10 March 2015.
After judgment was reserved, senior counsel for Ms Pham requested that this matter be relisted. It was. Leave was…

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 1205
Decision Date: 26 August 2015

CaseChat Overview and Summary

The parties involved in this case were Pham, the plaintiff, and NRMA Insurance Limited, the defendant. Pham sought compensation for psychiatric injuries allegedly caused by a motor vehicle accident. The dispute centred on the decision of a medical review panel, which determined that Pham's psychiatric injuries were not caused by the motor vehicle accident. The case was heard in the Supreme Court of New South Wales. The central legal issues the court had to address were whether the medical review panel applied the correct test for causation and whether the panel misapplied the principles established in Allianz Australia Insurance Ltd v Gonzales [2013] NSWSC 362.

The court examined whether the review panel correctly applied the test for causation as outlined in Allianz Australia Insurance Ltd v Gonzales. The test involves determining whether the motor vehicle accident was a necessary condition for the psychiatric injury. The court found that the review panel did not apply this test correctly, instead, it appeared to have assessed whether the accident was a significant contributing factor. Furthermore, the court held that the review panel's reliance on evidence from a particular expert witness was misplaced. The court concluded that the review panel's determination was flawed and that the panel had misapplied the principles established in Allianz Australia Insurance Ltd v Gonzales.

Consequently, the court allowed Pham's application for judicial review, quashed the review panel's decision, and remitted the matter back to the panel for reconsideration in light of the court's findings. The court emphasised the importance of correctly applying the test for causation as set out in Allianz Australia Insurance Ltd v Gonzales and the need for careful consideration of expert evidence. The final orders included the quashing of the review panel's decision and the remanding of the matter for reconsideration.

Orders