Ackling v QBE Insurance

Ackling v QBE Insurance - [2009] NSWSC 881 - NSWSC 2009 case summary — Zoe

[13]

Factual Background 4 On 19 March 2003, the Plaintiff was working for his father on the family property, which lay between Bendemeer and Uralla. He had been handfeeding sheep from the back of an open-tray Bedford truck. The truck was moving across the paddock and the Plaintiff was sitting at the rear of the tray on top of some hay bails. The truck hit a rut in the ground and the Plaintiff was thrown in the air. He landed heavily on his buttocks and immediately felt a knife-like pain in the centre of his back, giving rise to a rupture of the L5/S1 disc. 5 The Plaintiff exacerbated this injury on 21 January 2004 while doing road repair work on the family property. He was shovelling dirt when he slipped and fell on his buttocks. In the period after January 2004, the Plaintiff was diagnosed with a psychiatric injury. 6 The Plaintiff claimed that his psychiatric injury was caused by the motor accident of 19 March 2003 and that his degree of permanent impairment as a result of that injury was greater than 10%. He claimed damages for non-economic loss, which requires that an injured person's degree of permanent impairment be greater than 10%: s.131 MAC Act. 7 QBE denied liability for the claim. On 11 July 2007, the Plaintiff applied to the MAA for assessment of the disagreement between the Plaintiff and QBE regarding his degree of permanent impairment as a result of his psychiatric injury. The report of Dr Anthony Dinnen, psychiatrist, was submitted in support of the Plaintiff's application. Dr Dinnen assessed the Plaintiff's degree of permanent impairment at 21%. 8 QBE agreed with the Plaintiff's characterisation of the disagreement as "permanent impairment and stabilisation". However, QBE disagreed that the Plaintiff suffered a whole-person impairment of greater than 10% and consented to the referral of that disagreement: s.60(2) MAC Act. QBE submitted a report of Dr Robert Lewin, psychiatrist. Dr Lewin diagnosed a psychiatric injury, adjustment disorder with depressed mood, noting the Plaintiff's symptoms as being characteristic of a reactive depression within the context of a chronic pain syndrome. Dr Lewin assessed the Plaintiff's degree of permanent impairment at that time at 7%. 9 The Medical Assessor to whom the disagreement was referred was Assessor Brian Parsonage, psychiatrist. Medical Assessor Parsonage furnished two Certificates of Determination of Assessment dated 27 August 2007. The certificate with respect to whether an injury had stabilised stated (affidavit, MG Dennis, 2 June 2008, page 61): "The following injuries caused by the motor accident have stabilised NIL diagnose psychiatric disorder related to the motor accident ." 10 The certificate concerning the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident stated (page 62): "The following injuries caused by the motor accident give rise to whole person impairment which, in total, IS NOT GREATER THAN 10% : NIL diagnosed psychiatric disorder related to the motor accident." 11 The Medical Assessor provided a statement of reasons with respect to these certificates (pages 50-59). 12 The Medical Assessor recounted the Plaintiff's history and account of the motor accident, his findings on clinical examination and review of documentation before moving to his conclusions. With respect to the Plaintiff's psychiatric disorder, Medical Assessor Parsonage concluded (page 57): "While I accept that Mr Ackling had an on-going back problem arising from the subject motor vehicle accident, he did not develop a psychiatric disorder secondary to his back pain, until after the second injury in January, 2004. Therefore, while the subject motor vehicle accident helped to predispose Mr Ackling to developing a psychiatric disorder, it was the exacerbation of his back pain in January, 2004 and the failure of subsequent treatment that caused Mr Ackling's Major Depressive Disorder. If Mr Ackling had not re-injured himself in January 2004, there is no evidence that he would have developed a psychiatric disorder secondary to his residual and improving back pain and functioning which was apparent in January, 2004 before his second injury." 13 Medical Assessor Parsonage determined that no diagnosed psychiatric disorder related to the accident on 19 March 2003, although he concluded that the Plaintiff had developed major depressive disorder after he re-injured his back in January 2004 (page 58). 14 On 3 October 2007, the Plaintiff's solicitor completed an application for review of a medical assessment under s.63(1) MAC Act. The Plaintiff contended that Medical Assessor Parsonage had erred in his determination concerning causation of the Plaintiff's psychiatric disorder (page 69). 15 On 15 October 2007, the solicitor for QBE filed a reply to the application for a review of a medical assessment, in which it was conceded that the approach of Medical Assessor Parsonage to the issue of causation was incorrect (page 137). 16 On 30 January 2008, a Review Panel comprising Assessors Paul Friend, Anthony Samuels and Patricia Jungfer (all psychiatrists) undertook a review of the assessment of Medical Assessor Parsonage for the purpose of s.63(3) MAC Act. The review was undertaken on the papers. 17 On 30 January 2008, the Review Panel issued certificates of determination in which the certificates of assessment of Medical Assessor Parsonage dated 27 August 2007 were confirmed. The Review Panel concluded that no diagnosable psychiatric disorder related to the motor accident (pages 146-149). The statement of reasons of the Review Panel included the following (pages 143-144): "The panel agreed that the psychiatric/psychological condition arising from the injuries sustained in the accident of 19/3/2003 was stabilised. The panel could not find any evidence that there was a psychiatric/psychological condition arising from the injuries sustained in the accident of 19/3/2003. Mr Ackling had not sought psychiatric/psychological treatment. The assessments by three separate psychiatrists during 2007 described a very similar account of the two accidents and a similar description of Mr Ackling's symptoms and injuries. None of the three psychiatric reports mentioned psychiatric/psychological symptoms that would reach or be likely to reach criterion for a psychiatric diagnosis. All agreed that he had developed depressive symptoms and had a depressive illness following the second accident on 21/1/2004. Therefore the panel agrees with the findings of Assessor Parsonage that there was no assessable psychiatric/psychological condition arising from the injuries sustained in the motor accident of 19/3/2003. As there was no assessable psychiatric/psychological condition arising from the accident of 19/3/2003 there can be no assessment of permanent impairment." 18 The Review Panel determined that the 19 March 2003 accident was not a cause, or a significant contributing factor, to the Plaintiff's psychiatric disorder (page 144). 19 The Plaintiff commenced the present proceedings by Summons filed 17 April 2008.

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Error of Law Conceded 22 The Plaintiff and QBE both accept that Medical Assessor Parsonage and the Review Panel erred in law in the test of causation applied in this case. Each accept that error of law on the face of the record has been demonstrated so that Ground 3 should be upheld. 23 Mr Fernon SC, counsel for the Plaintiff, submits that the proper approach to a question of causation is whether the motor vehicle accident of 19 March 2003 was so connected with the Plaintiff's psychiatric injury that, as a matter of ordinary commonsense and experience, it should be regarded as a cause of it, and that the "but for" test is not an exclusive test of causation: March v E & MH Stramare Pty Limited (1991) 171 CLR 506 at 509, 522. He submits that, in this case, the Medical Assessor and Review Panel both approached the question of causation by concluding that, but for the injury in January 2004, the Plaintiff would not have developed a psychiatric injury and that this conclusion was reached notwithstanding the fact that each accepted that the back injury caused by the motor accident of March 2003 was exacerbated in January 2004. The Plaintiff submits that this approach is to confound the true test for the determination of causation (Ground 3). 24 QBE accepted that the Medical Assessor and the Review Panel both applied an incorrect test of causation. Mr Snell, counsel for QBE, submitted that Medical Assessor Parsonage had simply observed that there had been no psychiatric symptoms prior to the January 2004 accident. As a consequence of this error, QBE consented to a review being granted. QBE submitted that the Review Panel fell into the same error on causation by looking only for evidence of psychiatric/psychological treatment or complaints prior to 21 January 2004. Mr Snell submitted that the Review Panel should have considered whether the aggravation of physical symptoms on 21 January 2004 was causally connected to the 2003 motor vehicle accident, and whether psychiatric symptoms developing after 21 January 2004 were therefore causally connected to the earlier motor vehicle accident. 25 Mr Snell submitted that the position adopted by QBE in the present proceedings is consistent with its earlier consent to the review application and that, as the Review Panel had made the same error in determining causation, the Plaintiff is entitled to a fresh assessment in accordance with law. 26 Mr Free, counsel for the MAA, stated that his client did not wish to be heard in respect of this issue, with submissions being confined to broader questions of statutory construction and procedure to which I will turn shortly.

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The Plaintiff's Submissions 45 Mr Fernon SC points to the statutory distinction in the MAC Act between Medical Assessors, who are medical practitioners ascribed the function of determining medical disputes, and Claims Assessors, who are lawyers assigned the task of determining liability and assessment of damages. 46 The Plaintiff emphasises the definition of "medical dispute" in s.57 and submits that, in this case, the medical dispute referred for assessment under s.60(1) was a "disagreement" between the Plaintiff and QBE about the degree of permanent impairment of the Plaintiff as a result of the injury caused by the motor accident (s.58(1)(d) MAC Act). The importance of that assessment is clear - permanent impairment of greater than 10% is the threshold for an award of non-economic loss damages. 47 In support of Ground 1, the Plaintiff submits that the Medical Assessor and Review Panel did not have jurisdiction to determine whether the Plaintiff's psychiatric injury was caused by a motor accident. He submits that the statutory duty of each was to assess the Plaintiff's degree of permanent impairment, and that both the Medical Assessor and the Review Panel failed to perform that duty. 48 Mr Fernon SC submits that, rather than assess the medical dispute as required by the MAC Act, the Medical Assessor and then the Review Panel exceeded their jurisdiction and purported to determine an issue concerned with liability, namely whether the psychiatric injury was caused by the motor accident. The Plaintiff submits that issues of liability are not issues for assessment by a Medical Assessor, but fall for determination by a Claims Assessor or for adjudication by a Court. The Plaintiff submits that a medical practitioner is a person with suitable qualifications for the assessment of a degree of a person's permanent impairment, but has no special skill or qualification for the assessment of the legal issue of whether a motor accident caused an injury. 49 The Plaintiff submits that the words "caused by the motor accident" in s.58(1)(d) MAC Act are merely descriptive or identifying words, that identify the injury in respect of which the Medical Assessor is to undertake medical assessment. The Plaintiff submits that these words are not to be construed as empowering words which give to the Medical Assessor the power and function to determine causation (T5, 30 March 2009). 50 Even if that construction point was resolved adversely to the Plaintiff, Mr Fernon SC submits (in support of Ground 2) that, in the present case, there was no role for the Medical Assessor to determine causation because there was no disagreement about that matter which constituted the "medical dispute" to be determined under Part 3.4 MAC Act. 51 Mr Fernon SC submits that if a Medical Assessor's function generally includes determining causation, then the Medical Assessor's function in the present case did not include that function. He submits that the only subject of disagreement that was referred to the Medical Assessor was the degree of permanent impairment, the difference in this respect being between the assessment of Dr Dinnen (21%) and that of Dr Lewin (7%). No issue of causation was raised for the assessment of the Medical Assessor or Review Panel by either the Plaintiff or QBE and thus, the Plaintiff submits, the disagreement did not extend to whether the Plaintiff's psychiatric injury was caused by a motor accident. 52 The Plaintiff submits, alternatively, that if the Medical Assessor and Review Panel's function included a determination of whether the Plaintiff's psychiatric injury was caused by a motor accident, any such determination is an opinion only (and not conclusive) and did not excuse the Medical Assessor and Review Panel from determining the degree of permanent impairment of the Plaintiff as a result of the psychiatric injury. 53 In summary, the Plaintiff submits that the Medical Assessor and Review Panel lacked the necessary jurisdiction to determine causation. 54 The Plaintiff submits that the appropriate orders to be made would involve quashing the certificates of the Medical Assessor and the Review Panel, coupled with an order that the matter be remitted to a different Medical Assessor for determination according to law. The Plaintiff submits that, as neither the Medical Assessor nor the Review Panel has considered the matter on a lawful basis, then such an order is appropriate in the circumstances of the case.

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QBE's Submissions 55 Mr Snell submits that it was open to the Medical Assessor and the Review Panel, as a matter of jurisdiction, to consider whether the Plaintiff's psychiatric injury was caused by the motor accident of 19 March 2003 (Ground 1). Further, QBE submits that the "medical dispute" referred in this case did not operate to exclude the causation issue from consideration for the purpose of medical assessment (Ground 2). 56 QBE submits that the Medical Assessor and the Review Panel in this case correctly considered the question whether the Plaintiff's psychiatric injury was caused by the motor accident of 19 March 2003 but, in undertaking that task, a legally incorrect test of causation was applied. 57 QBE submits that s.58(1)(d) MAC Act confers direct and express power on a Medical Assessor to determine the degree of permanent impairment caused by the motor accident. Mr Snell submits that the statute provides specific jurisdiction for a Medical Assessor to determine causation. Reliance is placed upon the decision of the Court of Appeal in Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373 where a Medical Assessor and Review Panel made findings on causation and there was no challenge to the power to do so. 58 QBE also relies upon the Permanent Impairment Guidelines issued by the MAA on 1 September 2005 under s.44(1)(c) MAC Act (which apply to this case) and, in particular, cl.1.4-1.6 where reference is made to causation of injury and it is said that a "determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments" (cl.1.4). 59 QBE submits that it is erroneous for the Plaintiff to contend that the medical dispute referred for assessment in this case accepted the relevant causal connection between the Plaintiff's psychiatric condition and the motor accident of 19 March 2003 (Ground 2). Mr Snell submits that the opinions of medico-legal experts do not bind the parties, or frame the dispute as between the parties. 60 QBE submits that, in this case, there was a disagreement between the claimant and the insurer about the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, and that dispute was referred to Medical Assessor Parsonage. The Medical Assessor was obliged to apply his own medical expertise and qualifications, and to reach his own conclusions regarding both causation and the degree of permanent impairment. Although QBE accepts that the wrong test of causation was applied, it submits that it was, and remains, necessary for an assessment of causation to be made for the purpose of medical assessment in this case. 61 QBE submits that the orders to be made by the Court should state expressly that the Plaintiff's application for assessment of his degree of permanent impairment from psychiatric injury caused by the motor accident ought be referred for fresh assessment. QBE submits that the matter ought be remitted to a fresh Review Panel to exercise this function according to law.

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Submissions of the MAA 62 Mr Free submits that the Court should remit the matter to be determined according to law by a fresh Review Panel, and not to a Medical Assessor. 63 Given the role of QBE as an active contradictor, the MAA took a limited role in the proceedings by addressing only the general questions of power and procedure which arise. It is apparent that the proceedings raise issues of general importance concerning the administration and operation of the MAC Act, and the functions (including jurisdictional limits) of Medical Assessors under Part 3.4 MAC Act. 64 Like Mr Snell for QBE, Mr Free submits that the Plaintiff's jurisdictional arguments ought not be accepted. The MAA advanced additional submissions concerning the construction and operation of the MAC Act to those made for QBE. 65 Mr Free submits that the procedure for medical assessments under Part 3.4 MAC Act turns on the concept of "disagreement" to which that Part of the Act applies and, in this context, the concept of "medical dispute". The Medical Assessor to whom a medical dispute is referred is required to give a certificate as to the "matters referred for assessment": s.61(1). Such a certificate becomes conclusive evidence "as to the matter certified": s.61(2). The concept of a "matter" is key to the operation of Part 3.4 MAC Act: McKee v Allianz Australia Insurance Limited (2008) 71 NSWLR 609; [2008] NSWCA 163 at 615 [24]. The MAA submits that these provisions effectively describe the role of Review Panels, as well as the role of first-instance Medical Assessors. The role of the Review Panel is to undertake the same assessment of the "matter" as was required to be undertaken by the Medical Assessor, and the Review Panel is not confined by the terms of the particular application for review which complained of material errors in the original assessment: McKee v Allianz Australia Insurance Limited at 611 [7], 615 [25]. 66 The MAA submits that there is no provision in the MAC Act for referral for assessment of part of a matter, or part of a disagreement. The matter which is referred, and which must be the subject of medical assessment, is a particular species of "disagreement" of the kind described in s.58(1) of the Act. It follows, the MAA submits, that even if a claimant and an insurer are primarily in dispute about a particular subset of this concept (for example, the evaluation of the proper percentage to describe the extent of the permanent impairment), the subject matter of the referral is not that subset, but the whole of the matter described in s.58(1)(d) of the Act. The MAA submits that the jurisdiction of Medical Assessors and Review Panels to make a medical assessment, in any given case, turns on the statutory species of "disagreement" which has arisen and has been referred for assessment. Once the type of disagreement is identified, the scope of the medical assessment process derives from the statutory description of the matter in s.58(1)(d), not from the particular terms of the referral itself. 67 In the present case, the MAA submits that the matter that was the subject of referral, and that was required to be the subject of assessment, was disagreement about whether the degree of permanent impairment of the Plaintiff "as a result of the injury caused by the motor accident" was greater than 10%. It was the duty of the Medical Assessor to make an assessment about this dispute by determining whether the Plaintiff had the degree of impairment of the relevant kind. The MAA submits that it is artificial, and contrary to the words of the statute, to exclude the element of "causation" from this assessment. The only "permanent impairment" which is relevant to the assessment is impairment which results from "the injury caused by the motor accident". The element of causation thus qualifies the medical assessment process. Unless the Medical Assessor is satisfied that the impairment in question meets the statutory description in all respects (including causation), the MAA submits that the Medical Assessor cannot properly certify such a matter for the purposes of s.61 MAC Act. 68 While the issue in Pham v Shui was the scope of the conclusive operation of certificates arising from s.61 of the Act, the MAA submits that it is significant to note that the Court of Appeal (at 246 [96]), readily accepted that assessment of a disagreement of the kind referred to in s.58(1)(d) necessarily involves a determination of the medical causation of the relevant injury. 69 The MAA submits that the Plaintiff's argument introduces a false dichotomy between aspects of liability and other matters. The MAA submits that the jurisdiction of a Medical Assessor is described in plain language in Part 3.4 of the Act, and that a Medical Assessor can and must make an assessment about the particular "disagreement" which has been referred. Where the disagreement is of the kind described in s.58(1)(d), the MAA submits that the Medical Assessor can and must make an assessment about whether the claimant has the relevant degree of permanent impairment resulting from "the injury caused by the motor accident". This is the statutory description of the "matter" to be assessed. Even if it be correct to describe this process as touching on questions of "liability", it does not follow that the plain language of Part 3.4 should be given some alternative meaning. 70 The MAA submits that the Plaintiff's argument that Medical Assessors are ill equipped to consider issues of causation of injury should not be accepted. Reliance is placed on the observations of Giles JA in McKee v Allianz Australia Insurance Limited at 615 [24]. The MAA submits that medical professionals frequently express opinions on the causes of particular injuries, and that this ought be borne in mind in considering the terms of s.58(1)(d) MAC Act.

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[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 76 It is necessary to give meaning to all the words in s.58(1)(d) viewed in their statutory context. The Plaintiff's argument seeks to confine the words in that subsection to "the degree of permanent impairment of the injured person". The Plaintiff's argument treats the balance of the clause, "as a result of the injury caused by the motor accident", as if it were mere surplusage or merely descriptive. I do not accept this submission. 77 I accept the submissions of QBE and the MAA concerning the proper construction of Part 3.4 MAC Act and, in particular, s.58(1)(d) of the Act. Those provisions are concerned with medical assessment by expert medical practitioners. It is not uncommon for medical practitioners to express opinions as to whether particular injuries were caused by a particular motor accident. The decision in Pham v Shui at 236 [38]-[42] provides an illustration of this. 78 To construe ss.58(1)(d) and 61 in accordance with the Plaintiff's submissions would place an artificial fetter upon the functions to be exercised by Medical Assessors under the Act. 79 Where a s.58(1)(d) disagreement arises, the Medical Assessor ought undertake the assessment by considering whether the degree of permanent impairment of the injured person, as a result of the injury caused by the motor accident, is greater than 10%. Issues of causation will arise for consideration in the discharge of the statutory function required under s.61 MAC Act. 80 The Certificate issued by a Medical Assessor is conclusive evidence as to whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%: s.61(2)(a) MAC Act. I reject the Plaintiff's submission to the contrary. 81 I reject Ground 1 and the Plaintiff's primary submission that a Medical Assessor (under s.61) or a Review Panel (under s.63) has no jurisdiction to consider and determine whether an injury was caused by the motor accident in question. 82 I do not accept the Plaintiff's alternative submission (Ground 2) that what was referred as a medical dispute in this case was confined solely to the question whether the psychiatric injury constituted a degree of permanent impairment of 7% (Dr Lewin) or 21% (Dr Dinnen). The medical dispute involved a s.58(1)(d) disagreement which raised the question as to whether the Plaintiff's psychiatric disorder was caused by the motor accident of 19 March 2003. Medical Assessor Parsonage considered this question and determined it adversely to the Plaintiff. The matter was referred to a Review Panel, whereby the collegiate professional expertise of three Medical Assessors could be applied, resulting in an assessment which was more likely to be correct and to be accepted by the parties to the medical dispute: McKee v Allianz Australia Insurance Limited at 615 [23]. The Plaintiff and QBE both accept that the Review Panel committed legal error with respect to causation in the same manner as Medical Assessor Parsonage. 83 Although the limits of jurisdiction to be exercised by Medical Assessors are to be determined by the construction of the MAC Act itself, the Permanent Impairment Guidelines are not irrelevant to this task. Those Guidelines may be characterised as delegated legislation under s.44(1)(c) MAC Act. As delegated legislation, the Guidelines cannot affect the proper construction of the MAC Act, and they exist to indicate how relevant assessments are generally carried out: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 at 274 [17]; Paice v Hill [2009] NSWCA 156 at [2]-[3], [59]-[60]. With these qualifications in mind, I observe, nevertheless, that cl.1.4-1.6 of the Permanent Impairment Guidelines fortify the conclusion that the determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Part 3.4 MAC Act.

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Summary of Conclusions 84 In summary, I am satisfied that, as a matter of jurisdiction, it is open to a Medical Assessor or Review Panel to consider, and express a conclusion, on the question whether an injury or injuries giving rise to permanent impairment were caused by the motor accident in question. The function of a Medical Assessor or Review Panel is to consider the medical dispute referred for the purpose of discharging jurisdiction under the MAC Act. The scope of the medical dispute is not controlled or confined by the terms of the medical reports furnished by the parties. 85 As the Plaintiff and QBE agreed that error of law had occurred with respect to causation, it was not necessary for me to determine a contested issue in this respect. It should be kept in mind, however, that the assessment of the degree of permanent impairment of an injured person as a result of injury caused by a motor accident is to be undertaken by medical practitioners acting as Medical Assessors at first instance or as members of a Review Panel. 86 It is, of course, possible for considerable complexity to be injected into discussion about the legal concept of causation. Textbooks have been written about the subject and the law reports are replete with decisions concerning the topic. The task for medical practitioners exercising medical assessment functions under Part 3.4 MAC Act is a practical one. It is important that the process is not rendered unduly complex by legal terminology. It seems to me that paragraphs 1.4-1.6 of the Permanent Impairment Guidelines issued on 1 September 2005 provides practical assistance in this area. Paragraphs 1.4-1.6 are in the following terms: "1.4 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

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Decision 95 Costs lie within the discretion of the Court: s.98 Civil Procedure Act 2005. Ordinarily, costs should follow the event: Part 42 Uniform Civil Procedure Rules 2005. In the present case, it was necessary for the Plaintiff to bring proceedings in this Court to set aside, at the least, the erroneous decision of the Review Panel. The Plaintiff has succeeded in this Court on the narrowest basis advanced by him, and has not succeeded on the broader ground alleging jurisdictional error. QBE accepted before the Review Panel, and again in this Court, that error had occurred with respect to the test of causation applied. There is force in QBE's submission that, in the circumstances of this case, it could have done nothing more before the Review Panel, and in this Court, to ensure that correct principles were applied. 96 I have accepted the submissions of QBE and the MAA with respect to the proper construction of the MAC Act. The MAA appeared on a limited basis with respect to matters of practice and procedure, and the proper construction of the MAC Act. In the ordinary course, it should neither receive a favourable order for its costs nor should it be ordered to pay the costs of other parties: Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 384 [64]. 97 I am not satisfied that the basis advanced by the Plaintiff and QBE for an order for costs against the MAA, namely its responsibility for the appointment and training of Medical Assessors, ought lead to an order for costs against the MAA in this case. 98 It was necessary for the Plaintiff to bring these proceedings to set aside the decision of the Review Panel. The Plaintiff has obtained relief, but not on the primary bases agitated in this Court. The Plaintiff has failed on the issues which called for determination by the Court. In all the circumstances, the appropriate conclusion is that each party should pay his or its own costs. 99 I raised with counsel the question whether the Suitors' Fund Act 1951 had application in the circumstances of this case. None of the parties submitted that this Act was capable of applying to this case. A certificate may be granted under s.6 Suitors' Fund Act 1951 with respect to an appeal against a decision of a court. The word "court" is defined in s.2(1) of that Act as including "such tribunals or other bodies as are prescribed". It was common ground at the hearing that a Medical Assessor and Review Panel do not fall within this extended definition of "court" by prescription or otherwise. Although it has been said that the Suitors' Fund Act 1951 is beneficial legislation which should not be narrowly construed (Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 at 494; Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 at 515), it does not seem to me that the Act is capable of extending to the present proceedings.

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