Berrell v Allianz Australia Insurance Ltd [2018] NSWSC 1114

Berrell v Allianz Australia Insurance Ltd [2018] NSWSC 1114

The proper officer made no reviewable error because, on a fair reading, Dr Cunneen's medical assessment found that any accident-related hip injuries were minor soft tissue or musculoligamentous injuries that resolved within 4-8 weeks and that the bilateral total hip replacements and any ongoing impairment were unrelated to the motor accident. The proper officer's references to no causal link with hip injury were properly understood as referring to injury sounding in permanent impairment. Any failure by Dr Cunneen to calculate and deduct non-accident impairment under cl 1.36 of the Guidelines was not material because, on his findings, the whole of any current hip impairment was unrelated...

Jurisdiction
Australia
Judgment Date
19 July 2018
Procedural Posture
Administrative Law Judicial Review Concerning Refusal to Refer a Medical Assessment to a Review Panel Under the Motor Accidents Compensation Act 1999 (nsw), S 63 / Hearing and Determination of Amended Summons
Outcome
The amended summons was dismissed.
Legal Topics
['state Insurance Regulatory Authority' 'medical Assessment Certificate' 'review Panel Referral' 'whole Person Impairment' 'wednesbury Unreasonableness' 'evident and Intelligible Justification' 'permanent Impairment Guidelines']
['administrative Law' 'motor Accidents Compensation' 'judicial Review'] ['state Insurance Regulatory Authority' 'medical Assessment Certificate' 'review Panel Referral' 'whole Person Impairment' 'wednesbury Unreasonableness' 'evident and Intelligible Justification' 'permanent Impairment Guidelines']

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Procedural Posture

Administrative Law Judicial Review Concerning Refusal to Refer a Medical Assessment to a Review Panel Under the Motor Accidents Compensation Act 1999 (nsw), S 63 / Hearing and Determination of Amended Summons

Legal Issues

  1. 1 ['Whether the proper officer made reviewable error by refusing to refer the medical assessment to a review panel under s 63 of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.' "Whether the proper officer's decision lacked evident and intelligible justification or was one to which no reasonable person could have come." "Whether the medical assessor materially erred by not applying cll 1.33-1.36 of the MAA Permanent Impairment Guidelines to the plaintiff's hip impairments."]

Ratio Decidendi

The proper officer made no reviewable error because, on a fair reading, Dr Cunneen's medical assessment found that any accident-related hip injuries were minor soft tissue or musculoligamentous injuries that resolved within 4-8 weeks and that the bilateral total hip replacements and any ongoing impairment were unrelated to the motor accident. The proper officer's references to no causal link with hip injury were properly understood as referring to injury sounding in permanent impairment. Any failure by Dr Cunneen to calculate and deduct non-accident impairment under cl 1.36 of the Guidelines was not material because, on his findings, the whole of any current hip impairment was unrelated...

Court Disposition

The amended summons was dismissed.

Orders

  • ['The amended summons is dismissed.' "The plaintiff is to pay the first defendant's costs of the proceedings."]