Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457

Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457

The Review Panel committed jurisdictional error and an error of law on the face of the record because the plaintiff had clearly articulated an argument that the right shoulder SLAP tear was caused or aggravated by the accident and was not a minor injury, but the Panel’s reasoning did not specifically address the SLAP tear or explain why that distinct cartilage injury was degenerative or a minor injury. That failure amounted to a failure to respond to a substantial argument and a constructive failure to exercise jurisdiction. The other grounds concerning the neck, lumbar spine and left shoulder, the “many studies” reference, fresh assessment, and duty to inquire were not made out.

Jurisdiction
Australia
Judgment Date
10 November 2021
Procedural Posture
Administrative Law Judicial Review Concerning a Medical Review Panel Certificate Under the Motor Accident Injuries Act 2017 (nsw) / Principal Judgment on Amended Summons Seeking Relief Under S 69 of the Supreme Court Act 1970 (nsw)
Outcome
Judicial review granted in part; the Review Panel decision dated 26 October 2020 was set aside and the proceedings were remitted.
Legal Topics
['motor Accident Injuries Act 2017 (nsw)' 'minor Injury' 'medical Assessment Review' 'procedural Fairness' 'jurisdictional Error' 'failure to Provide Reasons' 'failure to Respond to a Clearly Articulated Argument' 'irrelevant Consideration' 'duty to Inquire']
['administrative Law' 'motor Accident Compensation' 'judicial Review'] ['motor Accident Injuries Act 2017 (nsw)' 'minor Injury' 'medical Assessment Review' 'procedural Fairness' 'jurisdictional Error' 'failure to Provide Reasons' 'failure to Respond to a Clearly Articulated Argument' 'irrelevant Consideration' 'duty to Inquire']

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Procedural Posture

Administrative Law Judicial Review Concerning a Medical Review Panel Certificate Under the Motor Accident Injuries Act 2017 (nsw) / Principal Judgment on Amended Summons Seeking Relief Under S 69 of the Supreme Court Act 1970 (nsw)

Legal Issues

  1. 1 ["Whether the Review Panel erred in determining that the plaintiff's right shoulder injury, including a SLAP tear, was a soft tissue injury and therefore a minor injury for the purposes of the Motor Accident Injuries Act 2017 (NSW)." "Whether the Review Panel denied procedural fairness or committed jurisdictional error by failing to respond to the plaintiff's clearly articulated argument about the SLAP tear and by failing to give adequate reasons." 'Whether the Review Panel gave adequate reasons for finding that the cervical spine, lumbar spine and left shoulder injuries were not caused by the motor accident.' 'Whether the Review Panel impermissibly relied on a reference to “many studies” without notice to the parties or adequate reasons.' 'Whether the Review Panel failed to conduct a new assessment as required by s 7.26(6) of the Motor Accident Injuries Act 2017 (NSW).' 'Whether the Review Panel failed to perform a duty to inquire about the timing of onset of shoulder pain.']

Ratio Decidendi

The Review Panel committed jurisdictional error and an error of law on the face of the record because the plaintiff had clearly articulated an argument that the right shoulder SLAP tear was caused or aggravated by the accident and was not a minor injury, but the Panel’s reasoning did not specifically address the SLAP tear or explain why that distinct cartilage injury was degenerative or a minor injury. That failure amounted to a failure to respond to a substantial argument and a constructive failure to exercise jurisdiction. The other grounds concerning the neck, lumbar spine and left shoulder, the “many studies” reference, fresh assessment, and duty to inquire were not made out.

Court Disposition

Judicial review granted in part; the Review Panel decision dated 26 October 2020 was set aside and the proceedings were remitted.

Orders

  • ['That the decision of the third defendant issued by the second defendant be set aside.' 'The proceedings are remitted to the President of the Personal Injury Commission of NSW to be determined according to law.' "The first defendant is to pay the plaintiff's costs."]