Australia, June 16 -- New South Wales Land and Environment Court issued text of the following judgement May 16:

1. LEEMING JA: I agree with Stern JA.

2. KIRK JA: I agree with Stern JA.

3. STERN JA: Ms Yangzom was hit by a utility vehicle on 13 June 2018 whilst on a pedestrian crossing. Shortly after the accident she submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act) on account of injuries she described to her lower lumbar/sacral spine, right pelvis, right and left hip, right knee and patella, and shoulder. A dispute arose between Ms Yangzom and Allianz Australia Insurance Limited (Allianz), the compulsory third party insurer of the vehicle, as to the percentage of permanent impairment resulting from Ms Yangzom's injuries caused by the accident. That was a medical dispute about the claim: s 7.17 and sch 2 of the Act. On 29 August 2023, a delegate of the President of the Personal Injury Commission (the delegate) referred that medical dispute to a medical assessor, Professor Ian Cameron (the medical assessor), under s 7.20 of the Act.

4. As set out in a certificate issued on 12 November 2023 under s 7.23(1) of the Act, the medical assessor found that the injuries that Ms Yangzom suffered in the accident gave rise to permanent impairment of 4%. This meant that Ms Yangzom could not be awarded damages for non-economic loss in respect of her injuries. Such damages are available only if the degree of permanent impairment caused is greater than 10%: s 4.11 of the Act.

5. Ms Yangzom applied under s 7.26 of the Act for review of the medical assessment. On 10 January 2024 the delegate concluded that he was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. This precluded Ms Yangzom's application for review of the medical assessment being referred to a review panel: s 7.26(5) of the Act.

6. Ms Yangzom successfully sought judicial review of both the medical assessment and the delegate's decision. The primary judge set aside both decisions (although it is not clear if this was on the basis of jurisdictional error or error of law on the face of the record or both). In support of her conclusion on the medical assessment, the primary judge identified multiple failures by the medical assessor to comply with the Motor Accident Guidelines issued by the State Insurance Regulatory Authority under s 10.2 of the Act (version 9.1, commencing on 1 April 2023) (the Guidelines), and found that the medical assessor had failed to comply with the approach required by the decision of Hall J in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 ("Nguyen"). Her Honour found that the delegate also fell into legal error in not properly evaluating whether the errors alleged in Ms Yangzom's submissions had been made.

7. Allianz contends that her Honour erred in finding jurisdictional error or error of law on the face of the record in both decisions and separately raises a concern about the form of the orders.

8. As this is a court of error, Allianz must persuade this Court that the primary judge was in error. For this purpose, it is necessary for this Court to consider the substance of the two decisions and whether the primary judge was correct to set them aside on the basis of vitiating error. These are questions on which there can be only one, right, answer. The standard of appellate review is thus the correctness standard: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.

9. For the reasons set out below, the appeal should be allowed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196d22ac7391d0480a784bc6)

Disclaimer: Curated by HT Syndication.