Australian Associated Motor Insurers Ltd v Jessel

Australian Associated Motor Insurers Ltd v Jessel - [2007] NSWSC 1351 - NSWSC 2007 case summary — Zoe

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8.3 An order setting aside the Certificate of Determination of Assessment and Statement of Reasons of Medical Assessment Service's Assessor Isabella Watkins dated 25 July 2006. 9 The first defendant opposed this. There were submitting appearances by the other defendants. Background 10 Although there is no dispute about the facts, it is necessary to review them in some more detail. 11 By letter dated 24 October 2005 the Motor Accident Authority of New South Wales ("the MAA") wrote to Assessor Helen Mackie asking her to provide a Determination consisting of both a Certificate of Determination for each of a series of nominated disputes and an accompanying Statement of Reasons. One of the particular disputes to which her attention was directed was described as "The degree of permanent impairment of the [first defendant] as a result of injuries caused by the motor accident". 12 That letter proceeded to list a series of injuries including nose fracture, eye bruising and face bruising and abrasion. The letter continued with the following paragraph: "I note that the injured person has sustained facial injuries. Upon your examination, if you feel these injuries are outside your area of expertise and require further assessment by another specialist, would you please contact MAS immediately." 13 Assessor Mackie provided her Statement of Reasons on 12 December 2005. Part of her findings on clinical examination included the following: "He had no bruising or abrasions over the right chest, face or eyes and forehead. He had no obvious deformity of the nose shape. He had loss of air passage of the left nostril. The septum appeared to be asymmetric on visualisation through the nostrils." 14 Later, under the subheading "Injuries That Give Rise to a Permanent Impairment", Assessor Mackie expressed the following views: "The nose fracture is not able to be confirmed on x-ray or scan. There appears to be minor septum deviation but no displacement. There was no definite air passage blockage; however this assessment is outside my area of expertise. Using DRE Classification of the AMA Guidelines for Evaluation of Permanent Impairment Edition 4, and using table 5, 9/231. WPI = 0% " 15 Finally, Assessor Mackie provided a summary. On the topic of Permanent Impairment, that summary was as follows: " Permanent Impairment

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Clause 2.1 of the Medical Assessment Guidelines 2006 states that ' an application may be made to MAS for assessment of the medical dispute in accordance with Part 3.4 (of the Motor Accidents Compensation Act 1999 - the Act)'. Section 58 of the Act defines the nature of these medical disputes, one being ' the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident '. According to the MAS 2A Application form and MAS 2R Reply form, neither party disputes the nasal fracture as being an injury caused by the motor vehicle accident. Given Assessor Mackie's assessment of the nasal fracture injury is incomplete on the basis that elements of the assessment are outside her area of expertise, assessment of this injury by an assessor capable of undertaking such an assessment is warranted." 23 Assessor Carroll provided his Statement of Reasons on 21 July 2006. He noted that the first defendant had no complaint in relation to nasal obstruction and that inspection of the nasal interior showed patent airways. He concluded that there was no evidence of a significant air passage defect and no diminution in the sense of smell. Under the heading "Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident ", Assessor Carroll said: "The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 4%." 24 On 25 July 2006, Isabella Watkins issued a Certificate of Determination of Assessment made under Part 3.4 of the Act and Clause 15.5.4.2 of the Medical Assessment Guidelines as to the degree of permanent impairment of the first defendant. Ms Watkins took into account the assessment by Assessor Mackie on 25 November 2005 and Assessor Carroll on 19 July 2006. Ms Watkins said, "the impairments sustained by the [first defendant] on the date shown are considered to give rise to a permanent whole person impairment which, in total, is greater than ten per cent using the approved methods of assessment". Ms Watkins' Statement of Reasons, also dated 25 July 2006, referred to the following matters: "I have reviewed the Statement of Reasons of Assessor Mackie and Assessor Carroll in relation to the permanent impairment sustained by [the first defendant] . . .

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27.4 In consequence of the invalidity of the certificate and statement of reasons of Dr Carroll, the certificate and statement of reasons of Assessor Watkins were also invalid. 28 The plaintiff submitted that Dr Mackie did not lack jurisdiction to make the statutory decisions that she made. Section 59 of the Act required the MAA to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of Part 3.4. By s 59(2), the terms of any such appointment may restrict a medical assessor to disputes of a specified kind. No such restriction existed in the case of Dr Mackie. 29 According to the plaintiff, the statutory significance of Dr Mackie's certificate is that, by virtue of s 61(2) of the Act, any certificate as to a matter referred for assessment on the question of whether the degree of permanent impairment is greater than 10 per cent or whether the injury has stabilised is conclusive evidence as to the matter certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. Dr Mackie certified in relation to whether or not the nose injury had stabilised. Moreover, she certified that the nose injury gave rise, with other injuries, to a whole person impairment that was not greater than 10 per cent. 30 Dr Mackie's statement of reasons included a statement that the first defendant's nose fracture was amongst the injuries that were assessed in relation to the medical dispute. The question of his fractured nose was also discussed with the findings on clinical examination. There was no reservation by Dr Mackie that the question of the stabilisation of the nose injury was outside her area of expertise. However, that issue was the subject of the purported amended referral to Dr Carroll on 14 July 2006. According to this submission, there was therefore no basis for saying, "the decision in relation to the stabilisation of the nasal injury [was] similarly affected by the absence of jurisdiction and also remain[ed] to be assessed". 31 With respect to the whole person impairment, Dr Mackie stated that the first defendant "had loss of air passage of the left nostril". That was the basis for making the assessment that she made that the whole person impairment was zero per cent. Although Dr Mackie could not find definite air passage blockage, she allowed that there was some blockage and that to conclude otherwise was outside her area of expertise. 32 The plaintiff submitted that the approach taken by Mr Davison was to mis- apply the relevant provisions of the Act. He proceeded upon the basis that, in relation to the nose fracture, there was an error going to jurisdiction so that parts of the decision and parts of the two certificates were nullities. According to the submission, the legally correct approach, if Mr Davison had been of the view that there was an error in Dr Mackie's decision-making, was to have it corrected by a review panel under s 63. An assessor who is not restricted under s 59(2) of the Act, and who has in fact decided the matter, cannot have it withdrawn from his or her jurisdiction. 33 Finally, there was no error in what Dr Mackie did. Mr Davison had no legal basis to refer the matter to Dr Carroll whose decision was therefore invalid. The first defendant's submissions 34 According to the first defendant, Dr Mackie's task was to decide a medical dispute, namely, the degree of permanent impairment caused by nominated injuries: see ss 58, 60 and 61. The relevant task of the Proper Officer is set out in the Medical Assessment Guidelines as follows: "15.5 The Proper Officer is to ensure that an assessor or assessors to whom a dispute is referred gives:

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[48] Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj , Parliament may give an administrative decision whatever force it wishes. Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. But, as was also said in Bhardwaj , as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction. More often that not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and common sense so much incline in favour of finality as to permit of no other conclusion." (footnotes omitted). 38 In the present case, the effect of the Act properly understood, combined with logic and common sense, incline in favour of a different conclusion. 39 Section 65 of the Act provides as follows: "(1) Medical assessments under this Part are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment." 40 The words "Any such certificate . . . is conclusive evidence as to matters certified" in s 61(2) are critical. The Certificate of Determination issued by Assessor Mackie was conditional on its face. It specifically said, "Details of the assessment and reasons for my determination are set out in the attached Statement of Reasons". Reference to the Statement of Reasons was important because it contained words that informed the reader that the task assigned to her had not been, because it could not be, completed. The certificate was thereby qualified by Assessor Mackie so as unambiguously to draw this to the attention of the Proper Officer. To the extent that Assessor Mackie did not deal with a particular matter because it was outside her particular area of expertise, she did not "certify" in relation to it. The certificate issued by her was therefore not conclusive in relation to the particular matter that she did not certify. The letter to Assessor Mackie asking her to provide her Certificate of Determination specifically asked her to contact MAS if she felt that facial injuries were outside her area of expertise so as to require further assessment by another specialist. Although Assessor Mackie did not do so "immediately", she quite properly emphasised precisely what she intended to certify and what she did not intend to certify. 41 It does not appear to me to be an appropriate or realistic interpretation of the Act that it would permit the plaintiff in the particular circumstances of the present case to accept the sweet part of the fruit while rejecting the sour. Nor does it accord with logic and common sense.

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42 Minds may differ upon whether or not the language used to describe what occurred was entirely accurate. For example, even though Ms Ashpole was "not satisfied that there [was] reasonable cause to suspect that the assessment [was] incorrect in a material respect", she nevertheless considered the possibility that "the assessment was not properly completed". Proper Officer Davison thought that because Assessor Mackie considered the assessment of the air passage blockage to be outside her area of expertise, it was sufficient to indicate that the assessment of the fractured nose was "incomplete". In his view, Assessor Mackie's statement that it was outside her area of expertise rendered "void" that part of her decision that related to the nose. He also formed the view that the assessment of the nose fracture in the circumstances put Assessor Mackie's decision on the nose injury "outside" her jurisdiction. 43 The terms of Chapter 15.5 of the Medical Assessment Guidelines require the Proper Officer to "ensure that an assessor or assessors to whom a dispute is referred" gives a list of the injuries found by the assessor to have been caused by the accident and the degree of permanent impairment of the injured person as a result of those injuries. The obligation upon the Proper Officer to do so is not confined to the period before the certificate issues. The Proper Officer of the Authority is to arrange for any request to refer a medical dispute "to one or more medical assessors": s 60(4). There is no limitation upon the time when this must be done. The Act does not contain an express limitation upon the Proper Officer to perform his functions only before the issue of a Certificate of Determination by a relevant assessor. There does not appear to be any basis upon which such a limitation can or should be implied. Again, common sense and logic would suggest otherwise. 44 I agree with Isabella Watkins that, given that Assessor Mackie's assessment of the nasal fracture injury was incomplete on the basis that elements of the assessment were outside her area of expertise, the assessment of the injury by an assessor capable of undertaking such an assessment was warranted. Assessor Mackie's Certificate of Determination can only be "conclusive evidence" as to the matters which it certifies. It cannot be conclusive evidence of anything that she has expressly indicated fell outside her ability or intention to certify. 45 The first defendant also relied upon s 48(1) of the Interpretation Act 1987. It is in the following terms: " 48 Exercise of statutory functions

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[123] However, an administrative decision which involves jurisdictional error is regarded, in law, as no decision at all: Bhardwaj at 614-615 [51], 618 [63], 646-647 [152]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 [76]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 997 [29]. Prima facie, the unavailability of s 48 Interpretation Act 1987 does not stand in the way of an assessor, after jurisdictional error, performing his or her statutory function under s 94 MAC Act. The question which then arises is whether the statutory scheme under the MAC Act ought be constructed so as to prevent the assessor from taking this course which is otherwise open in accordance with the principles in Bhardwaj , Plaintiff S157/2000 and SGLB ." 47 As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [8]: "The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?" 48 The present case is not one involving issues of functus officio or reconsideration by a decision maker. The present case involves the discharge of a statutory function by a Proper Officer under the Act whose ongoing task was to refer certain medical disputes to medical assessors and to ensure that they complied with the statutory regime that required them to furnish Certificates of Determination concerning medical issues within their particular area(s) of specialty. These were the functions committed to the Proper Officer by statute and it was wholly consistent with good administration and fairness, when the need arose, for him to refer the outstanding medical issue to Assessor Carroll when Assessor Mackie indicated that she would not deal with it. The certificate that she issued left untouched the matter that was referred to Assessor Carroll and was conclusive only as to the matters that she considered. Assessor Carroll's Certificate of Determination validly dealt with the remaining issue. Orders 49 I make the following orders: 1. Summons dismissed. 2. Order the plaintiff to pay the first defendant's costs.

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