Incorrect in a material respect does not require a different outcome: Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406

In Brief

• To seek a review of a medical assessment by a review panel pursuant to s 7.26 of the Motor Accident Injuries Act 2017, what must be “incorrect in a material respect” is the medical assessment, not the outcome of the assessment.
• Failure to respond to a substantial argument is a jurisdictional error.

Facts

The Supreme Court handed down its decision in Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406 on 19 April 2024.

The plaintiff made an application in the PIC for resolution of whether her permanent impairment exceeds 10%. The PIC Medical Assessor found a whole person impairment of 10% for injury to the plaintiff’s right foot and ankle. The Assessor found that the plaintiff did not injure her lower back in the accident because there was no complaint of lower back pain in the six months after the accident.

A report before the Medical Assessor supported a causal link between the accident and the plaintiff’s lower back pain, stating that the plaintiff’s lower back pain was aggravated by the gait she had to adopt due to her right ankle fracture.

The plaintiff applied for a referral to a review panel. The PIC Delegate dismissed the application for review. The plaintiff sought judicial review of the Delegate’s decision.

Supreme Court Reasons

Justice Elkaim applied Meeuwissen v Boden [2010] NSWCA 253, where Basten J considered that the phrase “in a material respect” refer to the process by which the outcome was achieved, not that the decision would have been different but for the error.

The section being considered in Meeuwissen v Boden was s 63 of the Motor Accidents Compensation Act 1999, which was in similar terms to s 7.26 of the Motor Accident Injuries Act 2017, the relevant section in the present case.

Justice Elkaim noted that the Medical Assessor had excluded the possibility of the lower back complaint as a consequential injury of the direct injury to her foot. Justice Elkaim found this to be a failure to respond to a substantial argument based on evidence relied upon by the plaintiff as to the causation of her lumbar spine injury, and therefore, wrong.

Justice Elkaim rejected the Delegate’s view that the argument of consequential lumbar spine injury was not put before the Medical Assessor, because the Medical Assessor was aware of the report that had specifically referred to the consequential injury.

Justice Elkaim further commented that the Delegate’s justification of the Medical Assessor’s error was somewhat unwarranted.

For these reasons, his Honour found that that the Delegate committed jurisdictional error. The matter was returned to the PIC for reconsideration.

Key Learnings

The decision in Tongi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWSC 406 confirms that:

• For a medical assessment to be incorrect in a material respect, it is not necessary that the certificate would have been different absent the error.
• Failure to respond to a substantial argument is a jurisdictional error.

Interestingly, we note that a recent decision by the Court of Appeal in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 emphasised the importance of properly articulating all arguments when referring a dispute to the PIC (see our case note). Justice Elkaim’s comment in Tongi shows that if a medical assessor has taken note of a report that contains a substantial argument, it cannot be said that the argument was not put to the assessor.