John Hoyn v NRMA Insurance Limited [2015] NSWSC 814

Supreme Court New South Wales

Medium Neutral Citation: John Hoyn v NRMA Insurance Limited [2015] NSWSC 814 Hearing dates: 7 April 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Common Law Before: Adams J Decision: The decision of the Proper Officer is quashed and the application returned to the Authority to be determined in accordance with this judgment. The defendant is to pay the plaintiff's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – referral for further medical assessment – application of s 62 Motor Accidents Compensation Act 1999 – additional information Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; (2010) 57 MVR 157 Category: Principal judgment Parties: John Hoyn (Plaintiff) NRMA Insurance Limited (Defendant) Representation: Counsel: Mr G. Barter (Plaintiff) Mr S. Torrington (Defendant)

Solicitors: Maguire & McInerney Lawyers (Plaintiff) Holman Webb Lawyers (Defendant) File Number(s): 2014/00343526 Publication restriction: None

Judgment

Introduction 1. The plaintiff suffered injuries in a motor vehicle accident on 24 May 2011. On 5 April 2012 a Compulsory Third Party (CTP) claim was lodged with the first defendant, NRMA Insurance Limited, which admitted fault on 16 October 2012. On 23 May 2013, there being a dispute as to the extent of his permanent impairment, if any, the plaintiff applied for an assessment by the Medical Assessment Service under the Motor Accidents Compensation Act 1999 (NSW). On 12 August 2013, Dr Mohammed Assem found injuries to the cervical spine (disc protrusion at C5-6 causing non-verifiable radiculopathy), the left shoulder (soft tissue injury) and left arm (mild left C6-7 radiculopathy) were caused by the accident and assessed the plaintiff's permanent impairment at 10%. His certificate added that the plaintiff also suffered a "limitation in right shoulder motion due to pain arising from the cervical spine" which was caused by the accident but not listed for assessment. This injury was not included in the 10% assessment. On 12 September 2013 the plaintiff applied for a further assessment to be made. On 7 April 2014 the Motor Accidents Authority referred the matter back to Dr Assem, who issued a further certificate on 15 May 2014 assessing the plaintiff's permanent impairment at 12% in respect of the injuries he had initially identified together with the left shoulder injury to which he had referred. On 5 August 2014 the plaintiff was examined anew by Dr Pierides and, following his report the first defendant, applied for a further assessment on the basis that the report provided additional relevant information about the injury which was "capable of having a material effect on the outcome of previous assessment" within the meaning of ss 62 1(a) and 62 (1A) of the Act. On 16 October 2014 the Authority advised the plaintiff that this application had been accepted and a further assessment was required. 2. On 21 November 2014 the plaintiff commenced proceedings by summons in this Court seeking judicial review of the decision by the Proper Officer of the authority, contending that the Proper Officer, in referring the subsisting assessment for further assessment, misconstrued s 62(1A) and otherwise acted outside the jurisdiction conferred by the Act.