Author: Bethany Mahler
Judgment date: 25 February 2021
Citation: AAI Ltd t/as AAMI v Chan  NSWCA 19
Jurisdiction: Supreme Court of New South Wales – Court of Appeal1
A dispute arose as to whether Dr Chan's injuries yielded a whole person impairment greater than 10%. The dispute was determined by a Medical Assessor however, the certificate was challenged by Dr Chan as the Medical Assessor found his right shoulder injury was not caused by the accident. A Review Panel constituted by the State Insurance Regulatory Authority (SIRA) provided a new certificate and reasoning. The Review Panel upheld the Medical Assessor's certificate, accepting the right shoulder injury was not a result of the accident.
Dr Chan then applied for a further medical assessment under section 62 of the Act, relying on new reports from his medical experts as constituting additional relevant information. The Proper Officer dismissed the application on the basis that the additional information was not capable of having a material effect on the outcome of the previous assessment because the causation arguments presented by the experts were not based on any new findings that had not already been considered by the Review Panel.
Dr Chan sought judicial review of the Proper Officer's decision on the basis there was jurisdictional errors and/or errors on the face of the record. The Primary Judge concluded the Proper Officer had posed the wrong question and improperly limited the scope of her inquiry.
The Insurer appealed to the Court of Appeal.
The Court explained at :
"That is not a high bar. It does not involve a prediction that the further medical assessment will, more probably than not, lead to a materially different outcome."On a fair reading of her reasons, the Proper Officer concluded that the matters concerning causation advanced in the new evidence had already been considered and rejected by the review panel, and on that basis she found that they were not capable of changing the outcome of the previous assessment.
The Court added, at :
"It is not for the Proper Officer himself or herself to guess the outcome of any further assessment. But it is necessary for the Proper Officer to form a view on whether the additional information has the capacity to have an effect on the outcome, and whether any such effect is material."The Court emphasised that its role was not to consider the merits of the evidence but whether the Proper Officer had erred at law, explaining at :
"The language of s 62(1A) might fairly be regarded as calling for an objective approach. …. Judicial review of such a judgment is limited to determining whether the Proper Officer’s opinion has been properly formed according to law. Thus, the characterisation of the additional relevant information is a matter to be considered by the Proper Officer and not one to be determined by a court afresh in a judicial review application."
1 Gleeson JA, Leeming JA and Emmett AJA.