Shmailov v AAI Limited [2020] NSWSC 887

Shmailov v AAI Limited [2020] NSWSC 887

The challenge concerning Social and Recreational Activities failed because it was open to the medical assessor to classify the plaintiff as Class 2 and the plaintiff did not show that the proper officer made an error of law in dealing with that category. However, in relation to Adaptation, the proper officer treated the Class 3 descriptor in Table 16 as requiring literal satisfaction of the example criteria and stated that she did not agree the plaintiff was in a different position. By doing so, she misapplied cl 1.220 of the Permanent Impairment Guidelines and asked whether the assessment was incorrect rather than whether there was reasonable cause to suspect that it was incorrect. That...

Jurisdiction
Australia
Judgment Date
10 July 2020
Procedural Posture
Judicial Review Under S 69 of the Supreme Court Act 1970 (nsw) / Principal Judgment
Outcome
Application allowed; proper officer's decision quashed; matter remitted to the State Insurance Regulatory Authority; first defendant ordered to pay the plaintiff's costs on an ordinary basis.
Legal Topics
['state Insurance Regulatory Authority' 'medical Assessment Service' 'proper Officer Decision' 'jurisdictional Error' 'error of Law on the Face of the Record' 'certiorari' 'permanent Impairment Assessment' 'psychiatric Impairment Rating Scale']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['state Insurance Regulatory Authority' 'medical Assessment Service' 'proper Officer Decision' 'jurisdictional Error' 'error of Law on the Face of the Record' 'certiorari' 'permanent Impairment Assessment' 'psychiatric Impairment Rating Scale']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the proper officer made jurisdictional error by failing to find reasonable cause to suspect that the medical assessment was incorrect in a material respect in relation to Social and Recreational Activities.' 'Whether the proper officer made jurisdictional error by failing to find reasonable cause to suspect that the medical assessment was incorrect in a material respect in relation to Adaptation.' 'Whether the proper officer applied the wrong test under s 63(3) of the Motor Accidents Compensation Act 1999 (NSW) by deciding whether the assessment was incorrect rather than whether there was reasonable cause to suspect that it was incorrect.' 'Whether the proper officer misapplied the Permanent Impairment Guidelines by treating PIRS descriptors as literal requirements rather than illustrative examples.']

Ratio Decidendi

The challenge concerning Social and Recreational Activities failed because it was open to the medical assessor to classify the plaintiff as Class 2 and the plaintiff did not show that the proper officer made an error of law in dealing with that category. However, in relation to Adaptation, the proper officer treated the Class 3 descriptor in Table 16 as requiring literal satisfaction of the example criteria and stated that she did not agree the plaintiff was in a different position. By doing so, she misapplied cl 1.220 of the Permanent Impairment Guidelines and asked whether the assessment was incorrect rather than whether there was reasonable cause to suspect that it was incorrect. That...

Court Disposition

Application allowed; proper officer's decision quashed; matter remitted to the State Insurance Regulatory Authority; first defendant ordered to pay the plaintiff's costs on an ordinary basis.

Orders

  • ['The decision of the proper officer dated 29 September 2019 is vitiated by an error of law and jurisdictional error.' 'In the nature of certiorari removing into the Court the decision of the proper officer dated 29 September 2019 and quashing that decision.' 'The matter is remitted to the State Insurance Regulatory...