Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 1:

1. By a Summons filed on 6 December 2024, the plaintiff, Heri Marlis Buestami, seeks judicial review of a Review Panel Certificate dated 12 September 2024. All named defendants filed submitting appearances and did not make any submissions to the Court.

2. The Review Panel was constituted after a delegate of the President of the Personal Injury Commission decided, on 2 December 2022, to accept a Review Application lodged by Allianz Australia Insurance Limited ("Allianz"), the first defendant, with respect to a Medical Certificate issued on 28 September 2022 by Dr Yu Tang Shen.

3. The Review Panel was constituted by a member with legal qualifications and two medical assessors.

Relief Sought

4. The relief sought in the summons was in the following form:

"1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and Review Panel Certificate of the second defendant, the review panel as was constituted by the President of the Personal Injury Commission of New South Wales ('the Commission'), the third defendant, pursuant to section 63(3) of the Motor Accidents Compensation Act 1999 ('the Act'), namely, the certificate and decision dated 12 September 2024 in matter R-M10541496/22, made purportedly pursuant to Part 3.4 of the Act ('the review panel decision').

2. An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Panel Certificate to the third defendant for reallocation of the matter to a differently constituted review panel for determination of the matter according to law."

Grounds for Relief

5. Two grounds were nominated for the relief. They are in the following terms:

"1. Ground 1: The review panel was required to determine the question of causation in accordance with clauses 1.5-1.7 of the Motor Accident Permanent Impairment Guidelines ('the guidelines'), the Civil Liability Act 2002 and common law principles. The review panel fell into jurisdictional error in determining causation, as follows:

(a) The review panel failed to consider or apply the principles of causation set out in State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 570, and Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; 93 MVR 378, in particular, by failing to consider whether the psychological injury or exacerbation of psychological injury that the plaintiff sustained as a result of a subsequent dog bite should be treated as causally related to or independent of the injuries sustained in the accident. In particular, the review panel failed to consider:

(i) whether the dog bite injury would have occurred had the plaintiff not been in the condition caused by the first defendant's negligence;

(ii) whether the added damage caused by the dog bite injury should be treated as caused by that negligence;

(iii) whether the psychological damage sustained by the plaintiff as a result of the dog bite is greater because of aggravation of the earlier injury caused by the motor accident.

Failing to determine the question of causation according to law is a jurisdictional error.

(b) The review panel asked itself the wrong questions, which were:

(i) whether the dog bite event itself was causally related to the injury sustained by the motor accident, and;

(ii) whether the specific nature of the impairment caused by the dog bite existed prior to the dog bite.

The correct questions were:

(iii) whether the psychological injury caused by the dog bite was causally related to the injury caused by the motor accident, and;

(iv) whether the psychological damage sustained by the plaintiff as a result of the dog bite is greater due to his earlier injury.

Asking itself the wrong question or failing to ask itself the correction questions is a jurisdictional error.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197e26c3879f9dd29c551741)

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