Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372

Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372

The second review panel misunderstood and failed to perform its statutory task because it treated the review as a review of the quashed first review panel decision limited to the procedural fairness issue, rather than conducting a fresh assessment of Assessor Carr's medical assessment under s 7.26(6). It also applied the wrong causation approach by effectively requiring scientific or medical imaging certainty that the annular tear was caused by the accident, instead of deciding on the balance of probabilities whether the accident caused or materially contributed to the injury in light of all relevant evidence. These errors amounted to jurisdictional error and errors of law on the face of...

Jurisdiction
Australia
Judgment Date
31 March 2022
Procedural Posture
Judicial Review / Principal Judgment on Summons Seeking Review of Medical Assessors Review Panel Certificate Dated 20 February 2021
Outcome
Application granted; certificate set aside and matter remitted for referral to a review panel to be dealt with according to law; no order as to costs.
Legal Topics
['jurisdictional Error' 'medical Assessment Review Panel' 'minor Injury' 'causation' 'error of Law on the Face of the Record' 'motor Accident Injuries Act 2017 (nsw)']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'medical Assessment Review Panel' 'minor Injury' 'causation' 'error of Law on the Face of the Record' 'motor Accident Injuries Act 2017 (nsw)']

Case Brief

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Procedural Posture

Judicial Review / Principal Judgment on Summons Seeking Review of Medical Assessors Review Panel Certificate Dated 20 February 2021

Legal Issues

  1. 1 ['Whether the second review panel failed to conduct a fresh assessment as required by s 7.26(6) of the Motor Accident Injuries Act 2017 (NSW).' 'Whether the second review panel applied the wrong test for causation by requiring scientific or medical imaging certainty rather than determining causation on the balance of probabilities.' 'Whether the second review panel failed to take into account relevant evidence required by cl 5.6 of the Motor Accident Guidelines 2017.' 'Whether the second review panel failed to respond to a substantial and clearly articulated argument by the plaintiff.' 'Whether the second review panel failed to give proper and lawful reasons in breach of s 7.23(7) of the Motor Accident Injuries Act 2017 (NSW).']

Ratio Decidendi

The second review panel misunderstood and failed to perform its statutory task because it treated the review as a review of the quashed first review panel decision limited to the procedural fairness issue, rather than conducting a fresh assessment of Assessor Carr's medical assessment under s 7.26(6). It also applied the wrong causation approach by effectively requiring scientific or medical imaging certainty that the annular tear was caused by the accident, instead of deciding on the balance of probabilities whether the accident caused or materially contributed to the injury in light of all relevant evidence. These errors amounted to jurisdictional error and errors of law on the face of...

Court Disposition

Application granted; certificate set aside and matter remitted for referral to a review panel to be dealt with according to law; no order as to costs.

Orders

  • ['The certificate of the third defendants dated 20 February 2021 is set aside.' "The plaintiff's review of the medical assessment of Assessor Carr which is the subject of the certificate dated 14 December 2018 is remitted to the second defendant to be referred, under s 7.26 of the Motor Accident Injuries Act 2017...