Insurance Aust v Milton [2015] NSWSC 1392

Insurance Aust v Milton [2015] NSWSC 1392

The summons was dismissed because any alleged error by the Review Panel in describing or applying the causal connection between the brain injury and functional incapacity was immaterial: the FIM Assessment showed that Mr Milton did not score 5 or less on any FIM item, irrespective of cause. The Review Panel's reasons were adequate because they disclosed its actual path of reasoning, acknowledged the competing material and alleged inconsistencies, addressed Mr Milton's unwillingness to join the scheme, and then formed its own professional assessment of his functioning as it was required to do.

Jurisdiction
Australia
Judgment Date
25 September 2015
Procedural Posture
Judicial Review of a Review Panel Determination Under the Motor Accidents (lifetime Care and Support) Act 2006 and an Associated FIM Assessment / Summons Seeking Supervisory Relief Under S 69 of the Supreme Court Act 1970; Application to Extend Time Under Uniform Civil Procedure Rule 59.10(2)
Outcome
Time to challenge the FIM Assessment was extended, but the summons was dismissed and the plaintiff was ordered to pay the First Defendant's costs.
Legal Topics
['lifetime Care and Support Scheme' 'fim Assessment' 'eligibility for Participation in Scheme' 'error of Law on the Face of the Record' 'jurisdictional Error' 'adequacy of Reasons' 'materiality of Error' 'causation']
['administrative Law' 'motor Accidents' 'judicial Review'] ['lifetime Care and Support Scheme' 'fim Assessment' 'eligibility for Participation in Scheme' 'error of Law on the Face of the Record' 'jurisdictional Error' 'adequacy of Reasons' 'materiality of Error' 'causation']

Case Brief

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Procedural Posture

Judicial Review of a Review Panel Determination Under the Motor Accidents (lifetime Care and Support) Act 2006 and an Associated FIM Assessment / Summons Seeking Supervisory Relief Under S 69 of the Supreme Court Act 1970; Application to Extend Time Under Uniform Civil Procedure Rule 59.10(2)

Legal Issues

  1. 1 ["Whether the Review Panel erred in applying the test for the connection between Mr Milton's brain injury and his functional incapacity by requiring the brain injury to be the sole or main cause of impaired functioning." "Whether any alleged causation error was material to the Review Panel's determination." "Whether the Review Panel's written reasons were inadequate because they failed to address alleged inconsistencies in Mr Milton's histories to medical practitioners and his unwillingness to join the scheme." 'Whether the time for the plaintiff to challenge the FIM Assessment should be extended.']

Ratio Decidendi

The summons was dismissed because any alleged error by the Review Panel in describing or applying the causal connection between the brain injury and functional incapacity was immaterial: the FIM Assessment showed that Mr Milton did not score 5 or less on any FIM item, irrespective of cause. The Review Panel's reasons were adequate because they disclosed its actual path of reasoning, acknowledged the competing material and alleged inconsistencies, addressed Mr Milton's unwillingness to join the scheme, and then formed its own professional assessment of his functioning as it was required to do.

Court Disposition

Time to challenge the FIM Assessment was extended, but the summons was dismissed and the plaintiff was ordered to pay the First Defendant's costs.

Orders

  • ['Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the plaintiff may challenge the FIM Assessment dated 28 November 2014 be extended up to and including 23 April 2015.' 'The Summons be dismissed.' "The Plaintiff pay the First Defendant's costs of the proceedings." "There be no order as to the...