Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548

Supreme Court New South Wales

Medium Neutral Citation: Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 Hearing dates: 15 April 2021 Date of orders: 20 May 2021 Decision date: 20 May 2021 Jurisdiction: Common Law - Administrative Law Before: Brereton JA Decision: (1) Order in the nature of certiorari removing into this Court and quashing the certificate issued by the third defendant constituting a Review Panel of the second defendant State Insurance Regulatory Authority, dated 21 August 2020; (2) Order in the nature of mandamus that the Personal Injuries Commission of New South Wales, as successor to the second defendant State Insurance Regulatory Authority, by a differently constituted review panel, consider and determine according to law the review of the assessor's certificate of 18 August 2019; and (3) Order that the first defendant pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – Motor accident legislation – Review of Medical Assessment Service Review Panel decision – Jurisdictional error – Ground of review other than procedural fairness – Failure to properly exercise jurisdiction – Failure to discharge statutory function to ascertain causation – Where absence of contemporaneous clinical record of left shoulder injury complaint treated as decisive – Jurisdictional error established – Orders in the nature of certiorari and mandamus granted ADMINISTRATIVE LAW – Remedies – Materiality – Whether plaintiff able to surmount 10% threshold of degree of permanent impairment – Application of permanent impairment guidelines – Reliance on range of motion measurements – Where possibility of exceeding 10% threshold existent – Materiality established ADMINISTRATIVE LAW – Discretionary factors – Futility – Where materiality established – Where relief in any event not futile where assessment of injury a matter for fresh consideration by differently constituted review panel Legislation Cited: (NSW) Motor Accidents Compensation Act 1999, ss 58(1), 61, 63, 131, 132(1), 133 (NSW) Supreme Court Rules 1970, Pt 51B r 5(5) Cases Cited: AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46; [2006] NSWSC 1096 Bradley v Insurance Australia Ltd (t/as NRMA Insurance) (2015) 71 MVR 496; [2015] NSWSC 950 Brown v Insurance Australia Group Ltd t/as NRMA Insurance Ltd [2020] NSWSC 1597 Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 Folbigg v Attorney General of New South Wales [2021] NSWCA 44 Fraser v AAI Ltd t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 McHenry v Insurance Australia Ltd (t/as NRMA Insurance) (2019) 87 MVR 298; [2019] NSWSC 68 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650 Robson v QBE Insurance (Australia) Ltd (2020) 94 MVR 341 [2020] NSWSC 1558 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Wellman v CIC Allianz Australia Insurance Ltd [2019] NSWSC 1353 Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1995) State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (2018) Category: Principal judgment Parties: Donna-Leigh Norrington (Plaintiff) QBE Insurance (Australia) Ltd (First Defendant) State Insurance Regulatory Authority (Second Defendant) Margaret Gibson in her capacity as a medical assessor of the State Insurance Regulatory Authority (SIRA), Rhys Gray in his capacity as a medical assessor of SIRA, Richard Crane in his capacity as a medical assessor of SIRA, comprising the Medical Assessors Review Panel (Third Defendant) Representation: Counsel: Ms J Gumbert w Mr MJ Jones (Plaintiff) Mr G Smith (First Defendant)