Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014

Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014

The delegate's decision was set aside because the application for review of the Medical Assessment Certificate was, on proper construction, lodged within time and the delegate erred in law by failing to deal with this issue and by not engaging with grounds that the assessment was incorrect in a material respect, particularly misapplication of the statutory definition of minor injury and failure to give adequate reasons for the classification. Clause 5.9 of the Guidelines cannot override the clear statutory definition. The matter must be remitted for determination according to law.

Parties
Plaintiff: Yama Momand; First Defendant: CIC Allianz Insurance Limited; Second Defendant: Ian Cameron (in his capacity as a medical assessor); Third Defendant: Tajan Baba (in his capacity as the President's Delegate); Fourth Defendant: President of the Personal Injury Commission
Jurisdiction
Australia
Judgment Date
24 August 2023
Procedural Posture
Judicial Review / Post Hearing, Judgment and Final Orders
Outcome
Delegate's decision set aside; matter remitted; costs reserved.
Legal Topics
Judicial Review, Adequacy of Reasons, Medical Assessment Certificate, Statutory Interpretation, Ultra Vires, Extension of Time, Motor Accident Injuries
Administrative Law Personal Injury Judicial Review Adequacy of Reasons Medical Assessment Certificate Statutory Interpretation Ultra Vires Extension of Time +1 more

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Parties

Yama Momand

Plaintiff

CIC Allianz Insurance Limited

First Defendant

Ian Cameron (in his capacity as a medical assessor)

Second Defendant

Tajan Baba (in his capacity as the President's Delegate)

Third Defendant

President of the Personal Injury Commission

Fourth Defendant

Procedural Posture

Judicial Review / Post Hearing, Judgment and Final Orders

Legal Issues

  1. 1 Whether the Assessor failed to give adequate reasons for classifying the applicant's injuries as minor injuries
  2. 2 Whether the Assessor misapplied statutory definitions under the Motor Accident Injuries Act 2017 (NSW)
  3. 3 Whether Clause 5.9 of the Medical Assessment Guidelines is ultra vires

Ratio Decidendi

The delegate's decision was set aside because the application for review of the Medical Assessment Certificate was, on proper construction, lodged within time and the delegate erred in law by failing to deal with this issue and by not engaging with grounds that the assessment was incorrect in a material respect, particularly misapplication of the statutory definition of minor injury and failure to give adequate reasons for the classification. Clause 5.9 of the Guidelines cannot override the clear statutory definition. The matter must be remitted for determination according to law.

Court Disposition

Delegate's decision set aside; matter remitted; costs reserved.

Orders

  • The delegate's decision dated 13 October 2022 is set aside.
  • The matter is remitted to the President of the Personal Injury Commission to be dealt with according to law.