Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435

Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435

The summons was dismissed because the assessor's reasons disclosed that he assessed 0% whole person impairment on the basis that the plaintiff's diet was not limited to semi-solid or soft foods. The assessor recorded the plaintiff's current diet, symptoms, examination and documents reviewed, and was entitled as an independent medical expert to form his own judgment. He did not fail to consider pain or relevant material, was not required to interrogate the plaintiff's dietary history at the level of detail proposed, and gave sufficient reasons. No error of law was established, so the Proper Officer's decision also stood.

Jurisdiction
Australia
Judgment Date
22 October 2014
Procedural Posture
Judicial Review of Medical Assessment Under S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Summons
Outcome
Summons dismissed.
Legal Topics
['assessment of Permanent Impairment' 'adequacy of Reasons' 'relevant Considerations' 'procedural Fairness' 'duty to Inquire' 'dietary Restrictions for Mastication and Deglutition']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['assessment of Permanent Impairment' 'adequacy of Reasons' 'relevant Considerations' 'procedural Fairness' 'duty to Inquire' 'dietary Restrictions for Mastication and Deglutition']

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Procedural Posture

Judicial Review of Medical Assessment Under S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the medical assessor ignored relevant material, including history recorded by another assessor about dietary restriction.' "Whether the medical assessor gave adequate reasons for assessing the plaintiff's dental and mandibular injuries at 0% whole person impairment." 'Whether pain was a mandatory relevant consideration and was taken into account.' "Whether the assessor was required to make more detailed inquiries into preparation and consumption of foods referred to in the plaintiff's diet." "Whether the Proper Officer's refusal to refer the assessment to a review panel should be set aside if the assessment were invalid."]

Ratio Decidendi

The summons was dismissed because the assessor's reasons disclosed that he assessed 0% whole person impairment on the basis that the plaintiff's diet was not limited to semi-solid or soft foods. The assessor recorded the plaintiff's current diet, symptoms, examination and documents reviewed, and was entitled as an independent medical expert to form his own judgment. He did not fail to consider pain or relevant material, was not required to interrogate the plaintiff's dietary history at the level of detail proposed, and gave sufficient reasons. No error of law was established, so the Proper Officer's decision also stood.

Court Disposition

Summons dismissed.

Orders

  • ['Summons dismissed.' "Unless an application for a different order is made to my Associate in writing within seven (7) days, order the plaintiff to pay the defendants' costs."]