Averkiou v CIC Allianz Australia Insurance Limited [2016] NSWSC 311

Averkiou v CIC Allianz Australia Insurance Limited [2016] NSWSC 311

The review panel was required to assess Ms Averkiou's whole person impairment resulting from injuries caused by the first accident. It instead assessed impairment in relation to the subsequent accident because there was no measured impairment before that accident, and applied clauses 1.33, 1.34 and 1.35 concerning pre-existing impairment despite there being no evidence of any impairment before the first accident. By asking the wrong question and wrongly applying the Permanent Impairment Guidelines, the review panel misdirected itself, making jurisdictional error and an error of law. Its decision was invalid and had to be quashed and remitted to SIRA for determination according to law.

Jurisdiction
Australia
Judgment Date
23 March 2016
Procedural Posture
Administrative Law Judicial Review of a Medical Assessor Review Panel Decision Under the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Amended Summons Seeking Certiorari or Declaration and Remittal
Outcome
The plaintiff succeeded; the review panel decision was declared vitiated by jurisdictional error, quashed by certiorari, and remitted to the State Insurance Regulatory Authority for determination according to law.
Legal Topics
['jurisdictional Error' 'medical Assessment Review Panel' 'permanent Impairment Assessment' 'pre Existing Impairment' 'subsequent Injuries' 'certiorari' 'procedural Fairness']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['jurisdictional Error' 'medical Assessment Review Panel' 'permanent Impairment Assessment' 'pre Existing Impairment' 'subsequent Injuries' 'certiorari' 'procedural Fairness']

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Procedural Posture

Administrative Law Judicial Review of a Medical Assessor Review Panel Decision Under the Motor Accidents Compensation Act 1999 (nsw) / Principal Judgment on Amended Summons Seeking Certiorari or Declaration and Remittal

Legal Issues

  1. 1 ['Whether the review panel erred by addressing impairment from the first motor accident in relation to the subsequent accident.' 'Whether the review panel failed to apply or properly apply clauses 1.33, 1.34 and 1.36 of the MAA Permanent Impairment Guidelines.' 'Whether the review panel asked the wrong question and thereby made a jurisdictional error or error of law.' 'Whether the review panel failed to take into account relevant considerations.' 'Whether the matter should be remitted to a differently constituted review panel.']

Ratio Decidendi

The review panel was required to assess Ms Averkiou's whole person impairment resulting from injuries caused by the first accident. It instead assessed impairment in relation to the subsequent accident because there was no measured impairment before that accident, and applied clauses 1.33, 1.34 and 1.35 concerning pre-existing impairment despite there being no evidence of any impairment before the first accident. By asking the wrong question and wrongly applying the Permanent Impairment Guidelines, the review panel misdirected itself, making jurisdictional error and an error of law. Its decision was invalid and had to be quashed and remitted to SIRA for determination according to law.

Court Disposition

The plaintiff succeeded; the review panel decision was declared vitiated by jurisdictional error, quashed by certiorari, and remitted to the State Insurance Regulatory Authority for determination according to law.

Orders

  • ['The decision of the medical assessor review panel in matter number 2014/04/1773 made on 25 May 2015 is vitiated by jurisdictional error.' 'In the nature of certiorari removing into the Court the decision of the medical assessor review panel in matter number 2014/04/1773 made on 25 May 2015 and quashing that...