Australia, July 7 -- New South Wales Land and Environment Court issued text of the following judgement on June 6:

1. MITCHELMORE JA: I agree with Stern JA.

2. STERN JA: Duc Thuong Le was injured in a motor vehicle accident at around 3.20 am on 7 October 2018 when the car in which he was a passenger collided at speed first with another car and then with a street sign and a tree in York Street, Sydney. He sustained a number of injuries and submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). A dispute arose between Mr Le and NRMA (the CTP insurer of the vehicle at fault in the accident) as to whether Mr Le suffered only minor injuries (the pre-2023 name for what are now called "threshold injuries" in s 1.6 of the Act) in the accident. If so, his entitlement to benefits would be significantly limited under ss 3.11 and 3.28 of the Act and he would have no entitlement to common law damages under s 4.4 of the Act.

3. The dispute included whether the closed head injury with traumatic brain injury and amnesia, which Mr Le had been diagnosed as suffering, was caused by the accident as opposed to being caused by Mr Le's conduct in the immediate aftermath of the accident. NRMA has never disputed that, if caused by the accident, a traumatic brain injury is not a threshold injury as defined in s 1.6 of the Act.

4. That dispute was referred for medical assessment and subsequently came before a review panel of the Personal Injury Commission (the Commission). Both the medical assessor and the review panel found that Mr Le's traumatic brain injury was caused by the accident. NRMA sought judicial review of the review panel's decision. The primary judge rejected NRMA's contentions that the review panel's decision was infected by jurisdictional error or error of law on the face of the record, including on the basis of inadequate reasons: Insurance Australia Limited t/as NRMA Insurance v Duc Thuong Le [2024] NSWSC 1022 (J). NRMA appeals against that decision, relying upon two grounds of appeal:

1) The primary judge erred in finding that the [review panel] determined the question of causation according to law.

2) The primary judge erred in finding that the [review panel] exposed its actual path of reasoning by which [it] arrived at the opinion it formed on the medical question referred to it.

5. Both grounds were alleged to be either jurisdictional error or error of law on the face of the record. As to ground two, this Court recently held in Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104 at [11] (Stern JA, Leeming and Kirk JJA agreeing) that an inadequacy of reasons:

"[I]s generally considered not to be jurisdictional. In the case of bodies other than courts, the issue will be whether there is a statutory obligation to give reasons and, if so (in this case, s 7.23(7) of the Act) whether it has been complied with: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 ("Vegan") at [130] (Basten JA, Handley and McColl JJA agreeing)."

6. As this is a court of error, NRMA must persuade this Court that the primary judge was in error. For this purpose, it is necessary for this Court to consider whether the primary judge erred in holding that there was no vitiating error in the review panel's decision. This is a question 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.

7. Given the value of Mr Le's potential claims, it is clear that leave to appeal is not required: Supreme Court Act 1970 (NSW), s 101(2)(r).

8. For the reasons set out below, the appeal should be dismissed.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1973871723f67caa0d632648)

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