Gwyther v Insurance Australia t/as NRMA Insurance & Ors [2018] NSWSC 1441

Gwyther v Insurance Australia t/as NRMA Insurance & Ors [2018] NSWSC 1441

The Review Panel did not disclose legal error. It did not treat the absence of contemporaneous medical records as determinative, but weighed those records with the mechanism of injury, the plaintiff's claim form, certificates and examination findings, and was entitled to prefer the documentary record over the plaintiff's memory. The plaintiff was on notice that causation of the right shoulder injury and the absence of contemporaneous complaint were in issue and had an opportunity to address them, so procedural fairness was not denied. The reasons adequately exposed the Panel's reasoning. The fact that only two of three assessors examined the plaintiff did not invalidate the assessment,...

Jurisdiction
Australia
Judgment Date
27 September 2018
Procedural Posture
Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) / Final Determination of Summons Filed on 24 April 2018
Outcome
Summons dismissed; no order as to costs.
Legal Topics
['medical Assessment Review Panel' 'whole Person Impairment' 'causation' 'procedural Fairness' 'adequacy of Reasons' 'motor Accidents Compensation Act 1999 (nsw) S 63']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['medical Assessment Review Panel' 'whole Person Impairment' 'causation' 'procedural Fairness' 'adequacy of Reasons' 'motor Accidents Compensation Act 1999 (nsw) S 63']

Case Brief

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Procedural Posture

Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) / Final Determination of Summons Filed on 24 April 2018

Legal Issues

  1. 1 ["Whether the Review Panel impermissibly treated the absence of contemporaneous medical material as decisive of causation of the plaintiff's right shoulder injury." 'Whether the Review Panel denied the plaintiff procedural fairness by failing to put to her that her oral account of early right shoulder complaints might not be accepted.' "Whether the Review Panel's reasons were inadequate to disclose its path of reasoning on causation of the right shoulder injury." "Whether the Review Panel's decision was invalid because only two of the three panel members conducted the medical examination of the plaintiff."]

Ratio Decidendi

The Review Panel did not disclose legal error. It did not treat the absence of contemporaneous medical records as determinative, but weighed those records with the mechanism of injury, the plaintiff's claim form, certificates and examination findings, and was entitled to prefer the documentary record over the plaintiff's memory. The plaintiff was on notice that causation of the right shoulder injury and the absence of contemporaneous complaint were in issue and had an opportunity to address them, so procedural fairness was not denied. The reasons adequately exposed the Panel's reasoning. The fact that only two of three assessors examined the plaintiff did not invalidate the assessment,...

Court Disposition

Summons dismissed; no order as to costs.

Orders

  • ['The summons filed on 24 April 2018 is dismissed.' 'I make no order as to costs.']