GIO GENERAL LIMITED v SMITH & Ors INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors [2011] NSWSC 802

GIO GENERAL LIMITED v SMITH & Ors INSURANCE AUSTRALIA LTD T/as NRMA INSURANCE v SMITH & Ors [2011] NSWSC 802

The Review Panel made an error of law in certifying, in relation to each accident, that Mr Smith's major depressive disorder gave rise to permanent impairment greater than 10%, when its findings and the Guidelines required apportioning the total impairment between the two causative accidents, not duplicate the impairment for each. The Panel's misinterpretation of Guideline 1.36 and improper reliance on perceived 'fairness' or the Ackling decision led to the error.

Jurisdiction
Australia
Judgment Date
05 August 2011
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application allowed; Review Panel's Certificates quashed; matter remitted for reconsideration in accordance with reasons
Legal Topics
['motor Accidents Compensation' 'medical Assessment Review' 'permanent Impairment Apportionment']
['administrative Law' 'personal Injury' 'insurance Law'] ['motor Accidents Compensation' 'medical Assessment Review' 'permanent Impairment Apportionment']

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Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 ['Whether Review Panel erred in law in certifying that each motor accident caused a major depressive disorder giving rise to whole person impairment greater than 10%, inconsistent with its finding of total impairment from both accidents at 17%' 'Proper construction and application of Motor Accidents Authority Permanent Impairment Guidelines (particularly clause 1.36) in apportionment between two causative motor accidents']

Ratio Decidendi

The Review Panel made an error of law in certifying, in relation to each accident, that Mr Smith's major depressive disorder gave rise to permanent impairment greater than 10%, when its findings and the Guidelines required apportioning the total impairment between the two causative accidents, not duplicate the impairment for each. The Panel's misinterpretation of Guideline 1.36 and improper reliance on perceived 'fairness' or the Ackling decision led to the error.

Court Disposition

Application allowed; Review Panel's Certificates quashed; matter remitted for reconsideration in accordance with reasons

Orders

  • ["Declaration that the Review Panel's Certificate (and Reasons) dated 23 September 2010 is affected by an error of law on the face of the record" "Order in the nature of certiorari quashing the said Review Panel's Certificate (and Reasons)" 'Order that the matter be remitted to the Second Defendant to be...