Rymer v Allianz Insurance

In the case of Rymer v Allianz Insurance, the claimant sought recovery of legal costs incurred in a dispute over medical review panel proceedings concerning spinal surgery deemed reasonable and necessary. The dispute also involved the claimant’s entitlement to recover exceptional circumstances legal costs as outlined in section 8.10(4)(b) of the Motor Accidents Injuries Act 2017. The insurer contested the claim for exceptional circumstances, arguing that they did not exist and only allowing regulated legal costs. The court was required to determine whether the claimant's legal costs were reasonable and necessary, and if exceptional circumstances existed to warrant additional recovery beyond the regulated costs.

The central legal issue was whether the claimant’s solicitors' legal costs, which included those incurred in a dispute over the medical review panel, were reasonable and necessary. Additionally, the court had to assess if exceptional circumstances justified the recovery of additional legal costs beyond what was ordinarily regulated. The court referenced previous cases such as AAI Limited v Moon and San v Rumble (No. 2) [2007] NSWCA 259 to frame its considerations. The claimant argued that the complexity of the medical material and difficulties in obtaining instructions from a claimant diagnosed with depression justified the additional costs.

The court found that while not all of the legal work claimed by the claimant’s solicitors was reasonable and necessary, a portion of the costs was justified. The complexity of the medical material and the difficulty in obtaining instructions from the claimant due to their diagnosed depression were considered exceptional circumstances warranting additional recovery. The court allowed a significant portion of the claimant's legal costs, awarding $30,800 for solicitors' professional legal costs and $4,455 for barristers' fees. The court also allowed the clinical records invoice from Dr. Saravanja, though it did not make a formal order for payment due to the insurer's stated willingness to pay upon verification. The court concluded that the claimant was entitled to recover about 40% of the legal costs claimed as reasonable and necessary, aligning with the objects of the Motor Accidents Injuries Act 2017.