Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558

Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558

The review panel denied Mr Robson procedural fairness by considering and relying to a significant degree on the Minnesota 1976 – 1990 Study, which was not part of the material properly before it, was adverse, relevant and significant, and was not disclosed to Mr Robson so that he could address its relevance or reliability. The panel also fell into jurisdictional error by treating the absence of contemporaneous documentation of cervical injury or symptoms as determinative of causation, thereby failing to address the statutory question under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW). The three certificates were therefore liable to be set aside and the matters remitted to...

Jurisdiction
Australia
Judgment Date
05 November 2020
Procedural Posture
Judicial Review of Medical Review Panel Certificates Issued Under S 63(4) of the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Amended Summons
Outcome
Application for judicial review allowed; three medical review panel certificates set aside; matters remitted to SIRA for referral to a different panel of at least three medical assessors; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['procedural Fairness' 'jurisdictional Error' 'error of Law on the Face of the Record' 'medical Assessment Review Panel' 'permanent Impairment Threshold' 'causation of Injury' 'reasonable and Necessary Treatment']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['procedural Fairness' 'jurisdictional Error' 'error of Law on the Face of the Record' 'medical Assessment Review Panel' 'permanent Impairment Threshold' 'causation of Injury' 'reasonable and Necessary Treatment']

Case Brief

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Procedural Posture

Judicial Review of Medical Review Panel Certificates Issued Under S 63(4) of the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the medical review panel denied procedural fairness by considering and potentially relying on the Minnesota 1976 – 1990 Study without notifying the parties or giving Mr Robson an opportunity to respond.' 'Whether the medical review panel impermissibly treated the absence of contemporaneous medical records of cervical injury or complaint as determinative of causation.' "Whether the review panel's certificates were affected by jurisdictional error or error of law on the face of the record and should be set aside."]

Ratio Decidendi

The review panel denied Mr Robson procedural fairness by considering and relying to a significant degree on the Minnesota 1976 – 1990 Study, which was not part of the material properly before it, was adverse, relevant and significant, and was not disclosed to Mr Robson so that he could address its relevance or reliability. The panel also fell into jurisdictional error by treating the absence of contemporaneous documentation of cervical injury or symptoms as determinative of causation, thereby failing to address the statutory question under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW). The three certificates were therefore liable to be set aside and the matters remitted to...

Court Disposition

Application for judicial review allowed; three medical review panel certificates set aside; matters remitted to SIRA for referral to a different panel of at least three medical assessors; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['The Certificate in MAS Matter Number 2018/04/3059 given by the third defendant on 30 January 2020, as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, is set aside.' 'The Certificate in MAS Matter Number 2018/01/3524...