The plaintiff was born in 1984. On 18 October 2007 he was the driver of a motor car involved in a motor vehicle accident in Griffith in New South Wales. His injuries included a brain injury.
The plaintiff made a claim for compensation under the Motor Accident Compensation Act 1999 (the "MACA"). The claim was lodged on 21 April 2010. It was exempted from the CARS process on 18 February 2011.
The plaintiff commenced court proceedings seeking damages under the MACA on 25 July 2011.
The allegedly negligent driver was not able to be identified. Hence the Nominal Defendant has been sued. It denies liability for the accident. The relevant insurer is Allianz.
The applicable legislation for current purposes, besides the MACA, is the Motor Accidents (Lifetime Care and Support) Act 2006 (the "LCS").
In December 2012 Allianz applied to the Lifetime Care and Support Authority of New South Wales (the "Authority") for the plaintiff to be accepted as a participant in the scheme established by the LCS (the "LCS scheme"). In very brief compass the scheme provides for the care needs of seriously injured motor accident victims. Acceptance into the scheme automatically precludes the injured person from recovering certain heads of damage, such as attendant care (Section 141A of the MACA).
In making its application Allianz relied on a certificate from a rehabilitation physician, Professor Cameron, in which he certified that the plaintiff satisfied the criteria for entrance into the scheme. In aid of his opinion Professor Cameron had carried out a Functional Independence Measure (an "FIM"), on 18 December 2012, which determines one of the admission criteria under the LCS Guidelines (in particular Clause 2.2).
The plaintiff was accepted into the LCS scheme as an interim participant on 9 January 2013 (LCS, Section 9).
Interim participation cannot extend beyond two years. Accordingly when the two year period was drawing to a close the Authority wrote to the plaintiff telling him that further assessments were necessary if he were to become a permanent participant in the LCS scheme. The plaintiff refused any further assessment. As a result he was discharged from the scheme on 9 January 2015.
On 14 January 2015 the defendant's solicitor wrote to the plaintiff's solicitor effectively requesting that the plaintiff make himself available for a fresh FIM assessment. The plaintiff did not consent to this further assessment.
On 9 April 2015 the Nominal Defendant filed a Notice of Motion in this court seeking an order under Rule 23.4 (UCPR 2005) that the "plaintiff submit to a medical examination with Professor Ian Cameron for assessment for eligibility as a lifetime participant in the Lifetime Care and Support Scheme". An alternative order was sought that the plaintiff be directed under Section 86(1) of the MACA to attend the medical examination with Professor Cameron.
The motion came before me on 21 July 2015. The parties ultimately, on that day, came to an agreement. Handwritten consent orders were handed up. They included the following:
"1. Plaintiff to attend medical appointments arranged by the Defendant in Sydney not before 27 August 2015.
2. Plaintiff attend the following medical appointments:
(a) Prof Ian Cameron 28 August 2015 in Sydney;
(b) Prof Paul Spira 4 September 2015, in Sydney."
Following the orders the plaintiff attended upon the above medical practitioners. Professor Cameron conducted an FIM assessment.
The defendant now wishes to use the recent FIM assessment to ground an application for the plaintiff's entry into the LCS scheme as a permanent participant. The plaintiff, however, does not want to enter the scheme and objects to the use of Professor Cameron's report for that purpose.
The plaintiff says that the consent orders made on 21 July 2015 did not contemplate the use of Professor Cameron's report for an application to be accepted into the LCS scheme. The orders, says the plaintiff, were restricted to the plaintiff's damages proceedings in the District Court. Specifically, according to the plaintiff, he had not consented to attending and undergoing an FIM assessment to determine his eligibility for the LCS scheme.
The defendant's understanding of the orders was that the appointments, in particular that with Professor Cameron, could include the conducting of an FIM assessment to see if the plaintiff would qualify for the LCS scheme. Consistent with that understanding, when the defendant's solicitor wrote to Professor Cameron the letter stated "The purpose of the re-examination is to determine the Plaintiff's eligibility for lifetime participation in the Lifetime Care and Support Scheme". (Tab 4 in the Exhibit attached to the Affidavit of Mr Ian Jones dated 21 October 2015).
After various directions hearings the matter returned to me. The parties agreed that I should proceed by way of addressing three questions. The questions are:
1. Can a CTP insurer pursuant to s.86 of the MAC Act and/or Rule 23.4 of the Uniform Civil Procedure Rules request a claimant/plaintiff to cooperate and attend a medico-legal examination?
2. In circumstances where a claim has been exempted from assessment, and proceedings for the recovery of damages are pending before a Court can, as a consequence of s.86 of the Motor Accidents Compensation Act 1999 (NSW), the insurer of the Defendant in those proceedings by means of a court order made in those proceedings compel the Plaintiff to attend upon and be assessed by a doctor of its choosing for the purpose of the insurer:
(a) bringing an application for the Plaintiff's acceptance into the Lifetime Care and Support Scheme (LTCS);
(b) bringing an application for the Plaintiff's re-entry, following his earlier exclusion, into the LTCS: or
(c) providing to the LTCS a medical certificate and FIM score sheet in support of any applications by it to LTCS?
3. Whether, in the events (that) have happened, the insurer can in support of any application in relation to the Plaintiff by it to LTCS rely upon:
(a) any LTCS medical certificate of Professor Cameron generated following his examination of the Plaintiff on 28 August 2015;
(b) any LTCS FIM score sheet completed by Professor Cameron following upon his examination of the Plaintiff on 28 August 2015; or
(c) any report of Professor Cameron that relates to his examination of the Plaintiff on 28 August 2015.
Ultimately it was Question 2 that was central to the dispute between the parties. The parties agreed that Question 1 should be answered 'Yes'. Although not agreed, it was effectively conceded by the defendant that if Question 2 was answered in the affirmative then it was open to me to order that the defendant was not entitled to rely on the previous assessment of Professor Cameron but would need to attend for a fresh appointment. No submissions were put that if Question 2 was answered in the negative, it would not follow that Question 3 would have the same result.
I think the argument in respect of Question 2 has come down to this issue: can a court, in which a damages claim has been commenced, make an order under Section 86 of the MACA, compelling a plaintiff to attend a medical appointment which has as its purpose (even if not its entire purpose) the conducting of an FIM assessment to ascertain the plaintiff's eligibility for the LCS scheme?
There was no dispute between the parties that a court can order a claimant to meet the obligations stated in Section 86. It was the limit of these obligations that was in issue.
The defendant submitted that the MACA and the LCS were so interwoven that that any powers of the court made available by the MACA could, without more, be used in aid of any purpose arising from the LCS. Thus an order for a medical examination made in enforcement of the claimant's Section 86 obligations was equally available for use under the LCS.
More specifically material gathered following a Section 86 based order could be used to found an application under Section 8 of the LCS.
The defendant submitted that the "MACA and the LCS are intended to, and do, work together as a legislative scheme designed to meet the needs of persons injured in motor accidents in New South Wales" (written submissions, paragraph 58).
The defendant emphasised the importance of Section 141A of the MACA. The defendant submitted that this section demonstrated the connection between the two Acts. Thus for example where Section 141A(1) states which damages may not be recovered if a plaintiff is a participant in the LCS scheme this necessarily dictated the damages which were recoverable under the MACA.
The plaintiff responded that Section 141A does no more than prevent a plaintiff recovering damages under certain heads.
The defendant also emphasised that material gathered for an application under the LCS could also be of benefit in a damages claim under the MACA. For example, the results of an FIM assessment could be relevant to the amount of non-economic loss to which a plaintiff might be entitled.
I do accept that the two Acts are related and combine to cater for the victims of motor accidents in New South Wales. I do not however accept that they are related to the extent advanced by the defendant. In my view Section 86 does not become an integral part of the LCS and cannot be used for LCS purposes.
I think the starting point for the explanation of my just stated conclusion is to look at where Section 86 is placed within the MACA.
Section 86 is in Part 4.3 of Chapter 4 of the Act. Chapter 4 deals with "motor accident claims". Part 4.3 has as its heading: "Duties with respect to claims".
Section 3 is the MACA definition section. It states that "claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle". The first point to be noticed is that the claim is one for damages. The defendant said that benefits under the LCS are not damages. Secondly, the claim relates to a death or injury arising from the fault of the owner or driver of a motor vehicle. It does not include a person who was at fault, with no contribution from any other person. Such a person is entitled to benefits under the LCS.
Part 4.3 is concerned with persons making a claim for damages. It sets out their duties and obligations. It is silent on any person who may be eligible for participation in the LCS scheme.
More important are the contents of Section 86 itself. It states in detail the obligations of a claimant to the person against whom the claim is made or to an insurer. In addition, in subsection (3), the obligations of the claimant to a medical assessor or the Motor Accidents Authority are made clear.
The section then goes on to state the consequences of failure to comply. None of the obligations includes an obligation that has any connection with the LCS.
The defendant submitted that there was no other avenue, in either the MACA or the LCS, to compel a potential entrant into the LCS scheme to attend a medical examiner. This was consistent with its approach to Section 86.
The fact that there is no other enforcement section, either general or specific, is not to the point. It is up to Parliament to legislate specific measures to compel unwilling persons to attend medical appointments for the purpose of LCS applications.
It is also not to the point that the effect of my decision may be that the plaintiff ultimately recovers larger damages than he would if he were a participant in the LCS scheme.
The defendant referred me to Thiering v Daly [2011] NSWSC 1345. The decision in this case was overturned in the High Court (Daly v Thiering [2013] HCA 45). In addition the issues in Thiering, as set out by Garling J in paragraphs 13 and 15 of his judgment, do not include the issue before me. Nevertheless the defendant submitted that I would be assisted by the background to the LCS as comprehensively discussed by Garling J in the first instance decision.
Garling J set out the principles of statutory interpretation (from paragraph 49). The present question however is not one of statutory interpretation. The heading to Part 4.3, the plain language of Section 86 and its location in the MACA allows no scope for an interpretation which would permit any application of the section to the LCS.
I do not see that the second reading speech, set out in paragraph 84 of Thiering is of any assistance to the defendant. Perhaps to the contrary, it highlights the inclusion of 'at fault' drivers into the LCS scheme. This class of persons does not fall within Section 86.
If the legislature wished Section 86 to assume a role different to its stated scope, especially in regard to the LCS, it could easily have legislated accordingly. Section 141A, for example, deals with an aspect of the relationship between the two Acts. In my view, for Section 86 to have a specific application to the LCS there would need to have been legislation, either through the MACA or the LCS, to that effect.
In short, my view is that Section 86 dictates the obligations of claimants for damages. It has no application to the LCS. My answer to each part of Question 2 is therefore 'No'.
The parties agreed that if my decision in respect of Question 2 was in the negative then it would follow that the answer to each part of Question 3 would be also in the negative. I will answer Question 3 accordingly.
Although the Notice of Motion sought an order under Rule 23.4 the rule was not the subject of the debate before me, other than as covered by Question 1. However to the extent necessary to resolve the differences between the parties concerning the use of Professor Cameron's recent FIM assessment my views are as follows: It is trite to say that the court rules are designed to regulate and manage proceedings that are before the court. The proceedings in this case are the plaintiff's claim for damages under the MACA. They do not encompass any application under the LCS by the defendant. Accordingly I do not think that Rule 23.4 can be used to obtain an order directing a plaintiff to attend a medical consultation for the purpose of obtaining supporting evidence for an LCS application.
The result of my decision is that the FIM assessment conducted by Professor Cameron following his examination of the plaintiff on 28 August 2015 cannot be used by the defendant in aid of any application made under Section 8 of the LCS.
The formal orders are:
1. The questions posed in respect of the Notice of Motion are answered as follows:
Question 1: (By agreement between the parties): Yes
Question 2(a): No
Question 2(b): No
Question 2(c): No
Question 3(a): No
Question 3(b): No
Question 3(c): No
1. The defendant is to pay the plaintiff's costs of the motion
I will hear the parties if any different costs order is sought.
[3]
Amendment in paragraph 45(2): Pay instead of play.
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Decision last updated: 15 March 2016