QBE Insurance (Australia) Limited v Edwards [2016] NSWSC 1664

QBE Insurance (Australia) Limited v Edwards [2016] NSWSC 1664

The Review Panel did not fail merely because it substantially agreed with the original assessor; its certificate sufficiently showed that it considered the material afresh for the purpose of s 63(3A). However, the Panel's reasons did not adequately expose its reasoning for attributing the right knee injury to the accident, for characterising that injury as consequential to the left knee condition, or for calculating the impairment percentages for both knees. The Panel also failed to address QBE's substantial evidence and submissions on causation, including Professor Cameron's reports, in a dispute where knee causation and impairment were central. Those failures amounted to jurisdictional...

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Judicial Review of a Medical Assessment Service Review Panel Certificate Under the Motor Accidents Compensation Act 1999 (nsw) / Supreme Court of New South Wales Common Law Division Principal Judgment on Amended Summons Seeking Certiorari, Prohibition, Mandamus and Related Relief
Outcome
Review Panel certificate set aside; matter remitted for assessment by a newly constituted Review Panel; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['jurisdictional Error' 'adequacy of Reasons' 'procedural Fairness' 'medical Assessment Review Panel' 'whole Person Impairment' 'causation of Injury']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'adequacy of Reasons' 'procedural Fairness' 'medical Assessment Review Panel' 'whole Person Impairment' 'causation of Injury']

Case Brief

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Procedural Posture

Judicial Review of a Medical Assessment Service Review Panel Certificate Under the Motor Accidents Compensation Act 1999 (nsw) / Supreme Court of New South Wales Common Law Division Principal Judgment on Amended Summons Seeking Certiorari, Prohibition, Mandamus and Related Relief

Legal Issues

  1. 1 ['Whether the Review Panel failed to undertake a de novo assessment as required by s 63(3A) of the Motor Accidents Compensation Act 1999 (NSW).' "Whether the Review Panel gave adequate reasons for its conclusions about the first defendant's knee injuries and whole person impairment." 'Whether the Review Panel adequately explained and lawfully established causation for the right knee injury and applied clauses 1.7 and 1.9 of the Guidelines.' "Whether the Review Panel failed to take into account or respond to QBE's evidence and submissions about causation of the right knee injury and crepitus in both knees, thereby denying procedural fairness."]

Ratio Decidendi

The Review Panel did not fail merely because it substantially agreed with the original assessor; its certificate sufficiently showed that it considered the material afresh for the purpose of s 63(3A). However, the Panel's reasons did not adequately expose its reasoning for attributing the right knee injury to the accident, for characterising that injury as consequential to the left knee condition, or for calculating the impairment percentages for both knees. The Panel also failed to address QBE's substantial evidence and submissions on causation, including Professor Cameron's reports, in a dispute where knee causation and impairment were central. Those failures amounted to jurisdictional...

Court Disposition

Review Panel certificate set aside; matter remitted for assessment by a newly constituted Review Panel; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['The Review Panel Certificate dated 21 August 2015 issued by the third defendant in MAS Matter Number 2014/02/0351 be set aside.' 'The matter is to be referred to the second defendant for the appointment of a Review Panel newly constituted to undertake an assessment of the first defendant in accordance with law.'...