Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881

Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881

The Review Panel's certificate and reasons were set aside because the conceded error in applying the 'but for' test as the determinative causation test was an error of law on the face of the record and was dispositive. However, the Court rejected the Plaintiff's jurisdictional grounds: on the proper construction of Part 3.4, especially s.58(1)(d) of the Motor Accidents Compensation Act 1999, a Medical Assessor or Review Panel assessing permanent impairment may determine whether the relevant injury or impairment was caused by the motor accident. The referral was not confined by the parties' medical reports or percentage dispute. The appropriate remitter was to a differently constituted...

Jurisdiction
Australia
Judgment Date
28 August 2009
Procedural Posture
Claim for Prerogative Relief Under S.69 Supreme Court Act 1970 Concerning Medical Assessment Determinations Under the Motor Accidents Compensation Act 1999 / Principal Judgment on Amended Summons
Outcome
Review Panel determination set aside and medical dispute remitted to a differently constituted Review Panel; no order as to costs.
Legal Topics
['medical Assessment' 'permanent Impairment' 'causation' 'jurisdictional Error' 'error of Law on the Face of the Record' 'review Panel Powers' 'costs']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['medical Assessment' 'permanent Impairment' 'causation' 'jurisdictional Error' 'error of Law on the Face of the Record' 'review Panel Powers' 'costs']

Case Brief

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Procedural Posture

Claim for Prerogative Relief Under S.69 Supreme Court Act 1970 Concerning Medical Assessment Determinations Under the Motor Accidents Compensation Act 1999 / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether a Medical Assessor or Review Panel has jurisdiction under Part 3.4 of the Motor Accidents Compensation Act 1999 to determine whether an injury giving rise to permanent impairment was caused by the motor accident.' 'Whether, in the particular referral, the medical dispute was confined to the degree of permanent impairment or also included causation.' 'Whether the Medical Assessor and Review Panel applied an erroneous test of causation.' 'Whether the matter should be remitted to a Medical Assessor or to a differently constituted Review Panel.' 'What costs order should be made.']

Ratio Decidendi

The Review Panel's certificate and reasons were set aside because the conceded error in applying the 'but for' test as the determinative causation test was an error of law on the face of the record and was dispositive. However, the Court rejected the Plaintiff's jurisdictional grounds: on the proper construction of Part 3.4, especially s.58(1)(d) of the Motor Accidents Compensation Act 1999, a Medical Assessor or Review Panel assessing permanent impairment may determine whether the relevant injury or impairment was caused by the motor accident. The referral was not confined by the parties' medical reports or percentage dispute. The appropriate remitter was to a differently constituted...

Court Disposition

Review Panel determination set aside and medical dispute remitted to a differently constituted Review Panel; no order as to costs.

Orders

  • ['The Certificate of Determination of the Review Panel, and the Statement of Reasons of the Review Panel dated 30 January 2008, are set aside.' 'The Second Defendant is to refer the medical dispute to a Review Panel comprising Medical Assessors other than Dr Parsonage, Dr Friend, Dr Samuels and Dr Jungfer.' 'The...