Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322

Supreme Court New South Wales

Medium Neutral Citation: Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 Hearing dates: 4 February 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Common Law Before: Brereton JA Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005, r 59.10, extend time to the date on which the summons was filed for the commencement of these proceedings with respect to the decision, medical assessment and certificate of the third defendant in his capacity (at that time) as a medical assessor of the State Insurance Regulatory Authority dated 7 December 2020 purportedly made pursuant to Motor Accident Compensation Act 1999 (NSW), s 61 ("the medical assessor's decision"). (2) Quash the medical assessor's decision. (3) Quash the decision of the President's Delegate of the Personal Injury Commission of New South Wales dated 4 May 2021 purportedly made pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) dismissing the plaintiff's application for review of the medical assessor's decision. (4) Order that the proceedings be remitted to the Personal Injury Commission for determination of the application for medical assessment by a different medical assessor. (5) Order that the first defendant pay the plaintiff's costs. Catchwords: INSURANCE – Liability insurance – Motor vehicle – Compulsory third party insurance – Dispute as to percentage of impairment caused by motor vehicle accident given pre-existing condition – Finding by medical assessor that surgery was not necessitated by accident – Insured's application for review of medical assessor's decision by President of Personal Injury Commission dismissed – Judicial review of medical assessor's decision and dismissal of review application – Finding that assessor failed to respond to substantial and clearly articulated argument, provide lawful reasons, and evaluate evidence as required – Quashing of medical assessor's decision and President's delegate's dismissal of review application – Remittal to Personal Injury Commission for medical assessment by different assessor Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Alchin v Daley [2009] NSWCA 418 Allianz Australia Insurance Limited v Cervantes (2012) 61 MVR 443; (2012) NSWCA 244 Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; 83 MVR 403; [2018] NSWCA 22 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; 235 ALR 342; [2006] NSWCA 284 Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352; 347 ALR 173; [2017] FCAFC 107 Dunbar v Allianz Australia Insurance Limited (2015) 70 MVR 15; [2015] NSWSC 119 Insurance Australia Group Ltd v Keen (2021) 98 MVR 164; [2021] NSWCA 287 Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Tickner v Chapman (1957) 57 FCR 451; [1995] FCA 1726 Tranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; 88 ALJR 52; [2013] HCA 43 Texts Cited: NSW State Insurance Regulatory Authority (SIRA) Motor Accident Permanent Impairment Guidelines Category: Principal judgment Parties: Margaret Lederer (Plaintiff) Insurance Australia trading as NRMA Insurance Ltd (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Dr Phillip Truskett in his capacity as a medical assessor of the State Insurance Regulatory Authority of New South Wales (Third Defendant) Representation: Counsel: J Gumbert / M Jones (Plaintiff) K Rewell SC (First Defendant)