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

Supreme Court New South Wales

Medium Neutral Citation: Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 Hearing dates: 18 September 2020 Date of orders: 05 November 2020 Decision date: 05 November 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) 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. (2) The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person relates to the injury caused by the motor accident, is set aside. (3) The Certificate in MAS Matter Number 2018/01/3524 given by the third defendant on 30 January 2020, as to whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, is set aside. (4) The matters are remitted to the second defendant to be referred under s 63 of the Motor Accidents Compensation Act 1999 (NSW) to a different panel of at least three medical assessors for review and determination according to law. (5) The first defendant is to pay the plaintiff's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Procedural fairness – Whether failure to put parties on notice of panel's intention to consider and potentially rely on results of survey conducted between 1976-1990 in Minnesota a denial of procedural fairness – Jurisdictional error established – Certificates set aside and matters remitted ADMINISTRATIVE LAW – Judicial review – Claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – Medical review panel assessment – Whether panel failed to ask itself the correct legal question posed by s 58(1)(d) – Whether the panel impermissibly treated the absence of contemporaneous medical records of injury and complaint as determinative – Jurisdictional error established – Certificates set aside and matters remitted Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 Bugat v Fox [2014] NSWSC 888 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 North v Homolka [2014] VSC 478 Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 Pascoe v Mechita Pty Ltd [2019] NSWSC 454 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Rodger v De Gelder [2015] NSWCA 211 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Motor Accidents Medical Assessment Guidelines (effective from 1 October 2008) Category: Principal judgment Parties: Shaun Spencer Robson (Plaintiff) QBE Insurance (Australia) Ltd (First Defendant) State Insurance Regulatory Authority (SIRA) (Second Defendant) Dr Ian Cameron, Dr Rhys Gray and Dr Thomas Rosenthal in their capacity as a Medical Review Panel appointed by SIRA (Third Defendant) Representation: Counsel: J Gumbert (Plaintiff) K P Rewell SC (First Defendant)