Insurance Australia Ltd t/as NRMA Insurance v Atkins [2020] NSWSC 67

Supreme Court New South Wales

Medium Neutral Citation: Insurance Australia Ltd t/as NRMA Insurance v Atkins [2020] NSWSC 67 Hearing dates: 29 November 2019 Date of orders: 13 February 2020 Decision date: 13 February 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) The time for commencement of these proceedings is extended to the date of filing of the original summons on 27 June 2019.

(2) The certificate issued by the third defendant, Dr Truskett, dated 4 January 2019 in respect of the assessment of the first defendant's impairment as a result of the motor accident on 17 July 2017 is set aside so far as it relates to the thoracic spine and the right shoulder.

(3) The matter is remitted to the second defendant for the medical dispute as to the degree of impairment of the first defendant's thoracic spine and right shoulder as a result of the motor accident on 17 July 2017 to be referred, under s 60(2) of the Motor Accidents Compensation Act 1999 (NSW), to a different medical assessor.

(4) The first defendant is to pay the plaintiff's costs as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – judicial review – decision under the Motor Accidents Compensation Act 1999 – whether medical assessor's decision affected by error of law on the face of the record or jurisdictional error – failure to provide adequate reasons for assessment of impairment – certificate set aside and matter remitted for reassessment by different assessor. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11; (1990) 64 ALJR 244; (1990) 92 ALR 53 Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284; (2006) 235 ALR 342 Wingfoot Australia Partners Pty Ltd v Kocak (2003) 252 CLR 480; [2013] HCA 43; (2013) 88 ALJR 52; (2003) 303 ALR 6 Texts Cited: Motor Accidents Medical Assessment Guidelines (effective from 1 October 2008) Motor Accident Permanent Impairment Guidelines (effective from 1 Jun 2018) Category: Principal judgment Parties: Insurance Australia Limited trading as NRMA Insurance (Plaintiff) John Atkins (First Defendant) State Insurance Regulatory Authority (SIRA) (Second Defendant) Dr Philip Truskett, in his capacity as a medical assessor appointed by SIRA (Third Defendant) Jeremy Lum, in his capacity as proper officer of SIRA (Fourth Defendant) Representation: Counsel: K Rewell SC (Plaintiff) J Turnbull SC and H Wall (First Defendant)