Devic v NRMA Insurance Limited [2011] NSWSC 1099

Devic v NRMA Insurance Limited [2011] NSWSC 1099

The summons was dismissed because the plaintiff did not establish that the Review Panel failed to make necessary inquiries, relied on inaccurate or irrelevant left shoulder measurements, denied procedural fairness, constructively failed to exercise jurisdiction, formed an unreasonable opinion, or acted in the absence of any jurisdictional fact. The Panel's reasons showed that it measured and repeated shoulder movements, confirmed no history of left shoulder injury, and was entitled to apply clause 2.5 of the guidelines. Its cervical spine reasons addressed the relevant DRE criteria of guarding, dysmetria and radicular complaints and were adequate.

Jurisdiction
Australia
Judgment Date
15 September 2011
Procedural Posture
Application for Judicial Review Seeking an Order in the Nature of Certiorari Under Section 69 of the Supreme Court Act 1970 / Principal Judgment on Summons Challenging a Medical Review Panel Assessment Under the Motor Accidents Compensation Act 1999
Outcome
Summons dismissed with costs
Legal Topics
['certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record' 'irrelevant Consideration' 'constructive Failure to Exercise Jurisdiction' 'procedural Fairness' 'adequacy of Reasons' 'permanent Impairment Assessment' 'motor Accidents Authority Permanent Impairment Guidelines']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record' 'irrelevant Consideration' 'constructive Failure to Exercise Jurisdiction' 'procedural Fairness' 'adequacy of Reasons' 'permanent Impairment Assessment' 'motor Accidents Authority Permanent Impairment Guidelines']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Judicial Review Seeking an Order in the Nature of Certiorari Under Section 69 of the Supreme Court Act 1970 / Principal Judgment on Summons Challenging a Medical Review Panel Assessment Under the Motor Accidents Compensation Act 1999

Legal Issues

  1. 1 ['Whether the Review Panel erred by using the contralateral uninjured left shoulder as a baseline when assessing impairment of the injured right shoulder under clause 2.5 of the Motor Accidents Authority Permanent Impairment Guidelines.' 'Whether the Review Panel failed to make inquiries necessary to determine whether the left shoulder had less than average mobility and whether the right shoulder would have had similar findings before injury.' 'Whether the Review Panel took into account an irrelevant consideration, denied procedural fairness, constructively failed to exercise jurisdiction, or formed an opinion not reasonably open to it in assessing the right shoulder injury.' "Whether the requirements in clause 2.5 of the guidelines were jurisdictional facts whose absence would invalidate the Review Panel's decision." "Whether the Review Panel's reasons concerning the cervical spine injury were insufficiently transparent or inadequate, resulting in denial of procedural fairness or legal error."]

Ratio Decidendi

The summons was dismissed because the plaintiff did not establish that the Review Panel failed to make necessary inquiries, relied on inaccurate or irrelevant left shoulder measurements, denied procedural fairness, constructively failed to exercise jurisdiction, formed an unreasonable opinion, or acted in the absence of any jurisdictional fact. The Panel's reasons showed that it measured and repeated shoulder movements, confirmed no history of left shoulder injury, and was entitled to apply clause 2.5 of the guidelines. Its cervical spine reasons addressed the relevant DRE criteria of guarding, dysmetria and radicular complaints and were adequate.

Court Disposition

Summons dismissed with costs

Orders

  • ['Summons dismissed with costs']