On 18 September 2011, Mr Grahame Campbell (the plaintiff) was involved in a motor vehicle accident as a passenger in a vehicle driven by a colleague from the Marine Rescue.
The plaintiff commenced a claim against the defendant’s CTP Insurer, GIO pursuant to the Motor Accidents Compensation Act 1999 (NSW). Mr Campbell alleged that he was entitled to compensation for, inter alia, non-economic loss damages (also known as pain and suffering). In order to be eligible for non-economic loss damages under New South Wales legislation, a claimant’s degree of permanent impairment as a result of the injury caused by the motor accident must be greater than 10% (Section 131 of the Motor Accidents Compensation Act 1999 (NSW).
A dispute in relation to the plaintiff’s whole person impairment arose throughout the course of his claim and on 7 May 2014, the plaintiff applied for an Assessment of Permanent Impairment Dispute by the Medical Assessment Service (MAS).
The assessment process was commenced and the matter was allocated for determination of injuries and assessment of the degree of permanent impairment on 2 July 2014. The plaintiff was ultimately assessed by Assessor Perla on 23 July 2014.
On 21 August 2014, the Assessor found the plaintiff to have 20% permanent Whole Person Impairment. GIO, exercising its right to under the Act, applied for a review of the Assessor’s decision and the matter was referred to the Medical Review Panel who determined that the only injury caused by the motor vehicle accident was a soft tissue injury to the shoulder, giving rise to a whole person impairment of 0%.
The plaintiff applied for a further assessment on 9 September 2015 which annexed, relevantly, a Workers Compensation Injury Claim Form and the Statement of Graeme King. On 19 November 2015, the Proper Officer’s decision that the application would not be referred for further medical was received which elicited a judicial review of the decision on the ground of an error of law.
Judicial Review heard by Justice Rothman at the Supreme Court on 15 July 2016
The Proper Officer’s decision not to refer the application for further medical assessment was formed on the basis that the Proper Officer is “not satisfied that the additional relevant information or deterioration of the injury is such as to be capable of having a material effect on the outcome of the assessment” (Decision of Jane Probert, Proper Officer dated 19 November 2015).
The court determined that there was an error of law in the Proper Officer’s decision not to consider the Claim Form and the Statement as ‘additional relevant information’ which would have had a material effect on the outcome of the assessment. The court found that these documents were evidence of a ‘contemporaneous complaint of injury’ to the areas subject to argument. A lack of documents evidencing such complaints was a critical issue in the determination of the Medical Review Panel.
The Court concluded that the Proper Officer did not give consideration to the fact that the Claim Form was not available to the plaintiff before the Medical Review Panel Assessment (and therefore was incapable of being included for consideration) and that the Claim Form was ‘additional information’ that formed a necessary aspect of a full understanding of the Statement of Graeme King.
Ultimately, the Court quashed the whole decision of the Assessor and ordered that the matters that were subject to the decision were reallocated to a different Proper Officer for determination according to law.
This case highlight’s the purpose of judicial review in action, that is, the enforcement of legal correctness in decisions made by government bodies such as the Motor Accidents Authority.
At Stacks Goudkamp, we are experts on the Motor Accidents Compensation Act 1999 (NSW) and have achieved favourable results for a number of claimants by way of judicial review.
If you have been involved in a car accident or have any questions in relation to the judicial review process in personal injury claims, please do not hesitate to contact one of our friendly and knowledgeable expert lawyers on 1800 46 2359 or make an online enquiry for a no obligation discussion.
Written by Megan Sault.
Megan Sault is a Junior Paralegal in Victoria Roy’s Travel Law Practice Group at Stacks Goudkamp. The Travel Law Practice Group specialises in bringing compensation claims for injured air passengers and cruise passengers, as well as tourists who have been injured overseas.