Brown v Insurance Australia Group Ltd t/as NRMA Insurance Ltd [2020] NSWSC 1597

Brown v Insurance Australia Group Ltd t/as NRMA Insurance Ltd [2020] NSWSC 1597

The amended summons was dismissed because the Review Panel did not make any established legal error. It was entitled and, once it found inconsistent range of motion due to pain, required by the Guidelines not to use range of motion as the impairment parameter; cl 1.50 did not oblige three range of motion measurements before rejecting that method. The Panel's assessment by analogy with mild crepitation was authorised by cl 1.24 and was adequately explained. The statutory scheme put the parties on notice that the Panel would conduct a new assessment of all matters, not merely causation, and could re-examine the plaintiff with fewer than all panel members; no denial of procedural fairness...

Jurisdiction
Australia
Judgment Date
12 November 2020
Procedural Posture
Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) of a Motor Accidents Medical Assessment Service Review Panel Decision / Hearing of Amended Summons
Outcome
Amended summons dismissed; plaintiff ordered to pay the first defendant's costs of the proceedings.
Legal Topics
['error of Law on the Face of the Record' 'legal Unreasonableness' 'procedural Fairness' 'relevant Considerations' 'medical Assessment of Whole Person Impairment' 'motor Accidents Compensation Act 1999 (nsw)']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['error of Law on the Face of the Record' 'legal Unreasonableness' 'procedural Fairness' 'relevant Considerations' 'medical Assessment of Whole Person Impairment' 'motor Accidents Compensation Act 1999 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) of a Motor Accidents Medical Assessment Service Review Panel Decision / Hearing of Amended Summons

Legal Issues

  1. 1 ['Whether the Review Panel failed to comply with the Motor Accident Permanent Impairment Guidelines in rejecting range of motion as the method for assessing right shoulder impairment.' 'Whether the Review Panel acted legally unreasonably by assessing right shoulder impairment by analogy with mild crepitation when crepitus was not present.' "Whether the Review Panel denied procedural fairness by re-examining the plaintiff when the insurer's review application focused on causation." "Whether procedural fairness required all three members of the Review Panel to conduct the plaintiff's re-examination." 'Whether the Review Panel failed to take into account relevant considerations by not expressly addressing opinions of Dr Home and Dr Harrington on range of motion scores.']

Ratio Decidendi

The amended summons was dismissed because the Review Panel did not make any established legal error. It was entitled and, once it found inconsistent range of motion due to pain, required by the Guidelines not to use range of motion as the impairment parameter; cl 1.50 did not oblige three range of motion measurements before rejecting that method. The Panel's assessment by analogy with mild crepitation was authorised by cl 1.24 and was adequately explained. The statutory scheme put the parties on notice that the Panel would conduct a new assessment of all matters, not merely causation, and could re-examine the plaintiff with fewer than all panel members; no denial of procedural fairness...

Court Disposition

Amended summons dismissed; plaintiff ordered to pay the first defendant's costs of the proceedings.

Orders

  • ['Dismiss the amended summons.' "Order the plaintiff to pay the first defendant's costs of the proceedings."]