Smith v Insurance Australia Ltd - [2018] NSWSC 1606

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Smith v Insurance Australia Ltd [2018] NSWSC 1606
Hearing dates: 15 June 2018
Date of orders: 30 October 2018
Decision date: 30 October 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Summons dismissed.
(2) The plaintiff is to pay the first defendant’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review of
assessment of permanent psychiatric impairment by Motor Accidents Medical Assessment Service Review Panel – purported error of law and denial of procedural fairness in application of principles of causation – where impairment caused by accident was exacerbated by a subsequent non-indemnified event – Motor Accident Permanent Impairment Guidelines cl 1.36 - whether the subsequent event was an ‘unrelated injury’ – whether the assessed impairment from the unrelated injury should be deducted from the whole person impairment assessed – whether Panel required to call for submissions on matter disclosed by injured person
Legislation Cited: Civil Liability Act 2002 (NSW) s 5D
Motor Accidents Compensation Act 1999 (NSW) s 58
Cases Cited: Allianz Australia Insurance Ltd v Motor Accidents Authority of NSW [2011] NSWSC 102
Bhusal v Catholic Health Care Ltd [2018] NSWCA 56
Frost v Kourouche [2014] NSWCA 39
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
GIO General Limited v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802
March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Gary Edward Smith (Plaintiff)
Insurance Australia Ltd t/as NRMA Insurance (First
Defendant)
State Insurance Regulatory Authority (Second Defendant)
A Medical Review Panel appointed by the Second Defendant (Third Defendant)
Representation:
Counsel:
E Romaniuk SC & E Grotte (Plaintiff)
K Rewell SC (First Defendant)
Submitting appearances (Second &Third Defendants)
Solicitors:
Farrell Lusher Solicitors (Plaintiff)
McCabe Curwood Lawyers (First Defendant)
Crown Solicitors Office (Second & Third Defendants)

File Number(s): 2018/72741
Publication restriction: Nil

Judgment

The plaintiff seeks prerogative relief in respect of a decision of the Medical Review Panel of the Motor Accidents Medical Assessment Service. The first defendant is the compulsory third party insurer. The second defendant is the Authority which administers the scheme under the Motor Accidents Compensation Act 1999 (NSW). The third defendant is the Medical Review Panel. The second and third defendants filed submitting appearances.
The plaintiff had been injured in a motor vehicle accident on 27 April 2012 and had sustained both physical and psychiatric injuries. The challenged decision of the Medical Review Panel concerns his psychiatric injuries.
On 21 April 2017 the plaintiff was assessed by Dr Prior, who found that the plaintiff suffered from Post-Traumatic Stress Disorder and an exacerbation of Major Depressive Disorder. He determined a whole person impairment of 7%.
The plaintiff sought a review of the Dr Prior’s assessment. The Medical Review Panel assessed the plaintiff’s whole person impairment in respect of psychiatric injuries at 8%. It…

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.

Continue reading Smith v Insurance Australia Ltd

Details

AGLC: Smith v Insurance Australia Ltd [2018] NSWSC 1606
Case: [2018] NSWSC 1606
Decision Date: 30 October 2018

CaseChat Overview and Summary

In the case of Smith v Insurance Australia Ltd, the plaintiff sought judicial review of a decision by the Motor Accidents Medical Assessment Service Review Panel, which had assessed the plaintiff's permanent psychiatric impairment following a motor accident. The plaintiff contended that the panel erred in law and denied procedural fairness in its assessment, particularly in its application of causation principles. The panel had found that the plaintiff's impairment, initially caused by the accident, was exacerbated by a subsequent non-indemnified event, and it deducted the assessed impairment from the unrelated injury in accordance with clause 1.36 of the Motor Accident Permanent Impairment Guidelines. The plaintiff argued that the subsequent event was not an 'unrelated injury' and that the panel should have called for submissions on this matter.

The court considered whether the panel was correct in finding the subsequent event to be an unrelated injury and whether it was required to call for submissions on this matter. The court examined the guidelines and relevant case law to determine the appropriate approach to causation in this context. The court also considered the principle of procedural fairness and whether the panel had adequately considered the plaintiff's submissions on the issue of causation.

The court found that the panel had erred in its application of causation principles and in its handling of procedural fairness. The court held that the subsequent event was not an unrelated injury and that the panel should have called for submissions on this matter. The court found that the panel's failure to do so constituted a denial of procedural fairness. The court also held that the panel's deduction of the assessed impairment from the unrelated injury was an error of law. The court quashed the panel's decision and remitted the matter to the panel for reconsideration in accordance with the court's findings.

The court made orders quashing the panel's decision and remitting the matter to the panel for reconsideration. The court also made orders for costs in favour of the plaintiff. The court's decision provides important guidance on the application of causation principles in the context of motor accident claims and the importance of procedural fairness in the assessment process.

Orders