Towell v Schuetrumpe

[2006] NSWDC 159

CITATION:	Towell v Schuetrumpe [2006] NSWDC 159
HEARING DATE(S):	11-12 December 2006
JUDGMENT DATE:	20 December 2006
JUDGMENT OF:	Rein SC DCJ
DECISION:	Plaintiff’s motion dismissed.
CATCHWORDS:	Whether Review Panel’s approach to assessment under Motor Accidents Compensation Act 1999 was flawed because need for new prosthetic hip was determined by Review Panel as not having been caused by the motor vehicle accident - Whether procedural unfairness in approach of Review Panel - Observations on approach to Guidelines dealing with pre-existing conditions in the context of pre-existing prostheses - Appropriateness of early notice of motion in dealing with issues under s 61(4)
LEGISLATION CITED:	Motor Accidents Compensation Act 1999, ss 58, 60, 61, 62, 63, 131
CASES CITED:	Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 Brown v Lewis [2006] NSWCA 87 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Darke v El Debal (2006) 153 IR 73; [2006] NSWCA 86 Maffra v Egan (No 1) [2006] NSWDC 22 Mahon v Air New Zealand Ltd [1984] AC 808; (1983) 50 ALR 193 Murdoch v Davis (2005) 44 MVR 415; [2005] NSWCA 466 NRMA Insurance Ltd v Motor Accidents Authority of NSW (2004) 61 NSWLR 264; [2004] NSWSC 567 Pham v Shui (unreported, DCNSW, 7/11/05) Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Richards v Webster (unreported, 2/08/05, NSWDC)
PARTIES:	Ronald Towell (Plaintiff) Barry Stewart Schuetrumpe (Defendant)
FILE NUMBER(S):	3470 of 2004
COUNSEL:	Mr Hooke of counsel (Plaintiff) Mr R Forster SC (Defendant)

JUDGMENT

1 HIS HONOUR: On 19 October 2001 the plaintiff/applicant Mr Ronald Towell (for whom Mr Hooke of counsel appears) was injured in a motor vehicle accident (“MVA”) when the car driven by the defendant/respondent Mr Barry Stewart Schuetrumpe (for whom Mr R Forster SC appears) collided with his vehicle.

2 The present motion is brought by Mr Towell in respect of a certificate issued on 16 August 2006 by a Review Panel (consisting of three medical practitioners) which panel assessed Mr Towell’s level of permanent impairment as “not greater than ten percent” (p 110 affidavit of Mr Scott Hall-Johnston dated 7/11/06).

3 The Review Panel’s certificate rejected the certificate of Assessor Dr James Bodel who as assessor had issued a certificate on 30 November 2005. That certificate had also assessed Mr Towell as having a whole person impairment not greater than 10 percent but had arrived at the same conclusion in a different manner.

4 Dr Bodel’s certificate of 30 November 2005 itself superseded an earlier certificate by Dr Bodel issued on 23 March 2004 in which Dr Bodel had assessed Mr Towell as having a whole person impairment greater than 10 percent.

5 It is clear that what has led to the differences in the three certificates is the question of how a hip replacement performed on Mr Towell…