*The contents in this blog relates to legislation in New South Wales.

Turner Freeman Lawyers recently acted in a successful application for judicial review of a decision of the Review Panel appointed by the Dispute Resolution Service in Kinchela v Insurance Australia Group Limited t/a NRMA Insurance.

The plaintiff sustained injury in a motor vehicle accident on 20 December 2018, alleging a disc protrusion in the lumbar spine and an injury to the toe resulting in amputation.

Both injuries, if accepted as causally related to the motor vehicle accident, would exclude the plaintiff from having a “minor injury”.

Under the Motor Accident Injuries Act 2017, if an injured person has a “minor injury” their entitlement to statutory benefits (or weekly payments and most medical expenses) will cease 6 months after the motor vehicle accident. The injured person will also be unable to bring a damages claim.

The insurer alleged that the injuries sustained in the accident were “minor”. A medical assessor appointed by the Dispute Resolution Service affirmed that the plaintiff’s injuries were “minor”. The plaintiff lodged a review of this decision. The Review Panel constituted by the Dispute Resolution Service again found that the plaintiff’s injuries were “minor”.

In their reasons for the decision, the Review Panel made extensive reference to medical research concerning the origins of disc protrusions in the spine. These studies were referenced without prior notice to the plaintiff. The Review Panel also placed considerable weight on the absence of specific reference to the right toe in the plaintiff’s clinical records in coming to the conclusion the amputation had not arisen due to the motor vehicle accident.

Turner Freeman Lawyers initiated an application for judicial review in the Supreme Court of New South Wales on the following grounds:

  • The Review Panel fell into jurisdictional error in relying on the abovementioned medical publications to draw an adverse conclusion about the plaintiff’s case.
  • The Review Panel fell into jurisdictional error by denying the plaintiff an opportunity to address these medical publications.
  • The Review Panel fell into jurisdictional error in that it did not apply the correct test for causation of the plaintiff’s toe injury.
  • The Review Panel fell into jurisdictional error when it found that the absence of a contemporaneous complaint of the toe injury in the clinical records was determinative on the issue of causation.

Ultimately, the Court found that the Review Panel’s decision should be set aside, with the matter to be determined again according to law.

Implications

This case highlights that Medical Assessors in motor accident disputes must apply the correct legal test when assessing causation.

If an Assessor relies on an absence of contemporaneous complaints in clinical records as determining the issue of causation, they may fall into error.

A Medical Assessor must also provide the plaintiff procedural fairness. Reliance upon material or evidence which is not within common knowledge without prior notice to the plaintiff may amount to error and provide a basis for a decision to be set aside.