Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548

Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548

The Review Panel repeatedly treated the nine-month absence of medical documentation of left shoulder symptoms as conclusive of causation and did not consider whether the plaintiff might nonetheless have suffered the left shoulder injury in the accident, including by engaging with Dr Cossetto's evidence. That was a failure properly to exercise the statutory function under MACA s 58(1)(d). The error was material because there remained a possibility of a different outcome, including an impairment assessment exceeding the 10% threshold, and relief was not shown to be futile.

Jurisdiction
Australia
Judgment Date
20 May 2021
Procedural Posture
Administrative Law Judicial Review of Medical Assessment Service Review Panel Decision Under Motor Accident Legislation / Principal Judgment on Summons Seeking Orders in the Nature of Certiorari and Mandamus
Outcome
The plaintiff succeeded; orders in the nature of certiorari and mandamus were granted, and the first defendant was ordered to pay the plaintiff's costs.
Legal Topics
['jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'medical Assessment Review' 'causation of Injury' 'permanent Impairment Threshold' 'certiorari' 'mandamus' 'materiality' 'futility']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'constructive Failure to Exercise Jurisdiction' 'medical Assessment Review' 'causation of Injury' 'permanent Impairment Threshold' 'certiorari' 'mandamus' 'materiality' 'futility']

Case Brief

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Procedural Posture

Administrative Law Judicial Review of Medical Assessment Service Review Panel Decision Under Motor Accident Legislation / Principal Judgment on Summons Seeking Orders in the Nature of Certiorari and Mandamus

Legal Issues

  1. 1 ['Whether the Review Panel committed jurisdictional error by treating the absence of contemporaneous medical records of left shoulder symptoms as determinative of causation.' "Whether the Review Panel failed to address a substantial argument based on Dr Cossetto's opinion and radiological evidence concerning a post-traumatic left shoulder subacromial impingement syndrome." 'Whether any error was material because it deprived the plaintiff of the possibility of a successful outcome above the statutory permanent impairment threshold.' 'Whether relief should be declined as futile.']

Ratio Decidendi

The Review Panel repeatedly treated the nine-month absence of medical documentation of left shoulder symptoms as conclusive of causation and did not consider whether the plaintiff might nonetheless have suffered the left shoulder injury in the accident, including by engaging with Dr Cossetto's evidence. That was a failure properly to exercise the statutory function under MACA s 58(1)(d). The error was material because there remained a possibility of a different outcome, including an impairment assessment exceeding the 10% threshold, and relief was not shown to be futile.

Court Disposition

The plaintiff succeeded; orders in the nature of certiorari and mandamus were granted, and the first defendant was ordered to pay the plaintiff's costs.

Orders

  • ['Order in the nature of certiorari removing into this Court and quashing the certificate issued by the third defendant constituting a Review Panel of the second defendant State Insurance Regulatory Authority, dated 21 August 2020.' "Order in the nature of mandamus that the Personal Injuries Commission of New South...