Chan v AAI Limited

Ms O'Carroll's reasons

1. The matter came before the proper officer on Dr Chan's application for referral for further assessment upon the basis of additional relevant information concerning his injury. The material relied upon as amounting to additional relevant information consisted of the report of Associate Professor Haber dated 25 July 2019 and two reports of Dr Porteous dated 31 July 2019. In considering these reports, the proper officer reasoned as follows: "18. I note that there is no dispute between the parties that the reports of Dr Porteous and A/Prof Haber are additional relevant information. For the reasons that follow, I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment. … 31. Whilst I acknowledge that both Dr Porteous and A/Prof Haber opine that the claimant's right shoulder injury was caused by the motor vehicle accident, these opinions do not appear to be based on any new findings or information [other] than that which was considered by the Panel when reaching their determination. I therefore do not consider that the reports are capable of changing the outcome of the previous assessment in relation to the right shoulder."
2. The proper officer appears clearly to have accepted the insurer's submission in this respect, which she recorded at [13] of her reasons as follows: "The reports do not contain different or additional objective information about the right shoulder and merely express another medical opinion as to causation of the shoulder injury. The Panel was entitled to formulate their own independent assessment of causation. As the reports of A/Prof Haber and Dr Porteous are not based on additional or different information about the right shoulder, they would have no material effect on the Panel's determination as to causation."

Relevant legislation

1. Sections 62 and 63 of the Motor Accidents Compensation Act are in the following relevant terms: 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B)… 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A)…
2. As will be apparent, the meaning and scope of the words "such as to be capable of having a material effect on the outcome of the previous assessment" in s 62(1A) are central to the present dispute.

Submissions

1. Dr Chan contended that the proper officer committed an error on the face of the record at [31] of her reasons. He submitted that opinions, such as those of Associate Professor Haber and Dr Porteous, can themselves be "additional relevant information", even if based solely on the same background facts upon which the previous medical assessment was based. Dr Chan maintained that the insurer has sought to characterise the test or appropriate inquiry for the proper officer as being her subjective assessment of the effect of the opinions of Associate Professor Haber and Dr Porteous on the previous assessments. Dr Chan submitted that this approach was erroneous: the clear test stated in s 62 is whether those opinions could be capable of doing something, not whether they would do so. The proper officer's use of the word "would" in paragraph [31] of her reasons bespoke error. There is no scope for the proper officer's subjective assessment of what the effect might be: the test is whether the material is objectively capable of having an effect on someone else's assessment. Dr Chan described that distinction as "fundamental and critical".
2. Dr Chan argued that the assessment was one of capacity to do something. The inquiry is not about whether the particular doctors were going to change their minds but whether the additional relevant information was such that it was capable of leading them, as reasonable medical assessors, to do so. Moreover, the proper officer in this case could not make a valid assessment of that question in any event because she had fettered her ability to do so. That was because of her fundamentally erroneous view that a new opinion could only be capable of having a material effect on a previous assessment if it was based on "different or additional objective information" to that which was available at the time of the previous assessment.

Consideration

1. Dr Chan relied upon the obiter remarks of Gleeson JA in Jubb v Insurance Australia Ltd and Another (2016) 76 MVR 228; [2016] NSWCA 153. In that case, his Honour said this: "[75] The two propositions in Singh (No 2) on which the appellant relied are conveniently summarised by Button J in McCosker v Motor Accidents Authority of NSW [2015] NSWSC 434 at [41] as follows: [75] The first is that material that was in the possession of a party at the time of the original assessment cannot be relied upon by that party as additional information in support of an application for a further assessment. The second proposition is that material that is an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, will also fall within the prohibition contained in the first proposition. … [80] Secondly, the premise of the second proposition in Singh (No 2) seems to be that a further medical opinion cannot constitute 'additional information' unless it is based on a change in the claimant's underlying symptoms and circumstances. The correctness of that premise may be doubted. It would seem to conflate the separate grounds referred to in s 62(1)(a) of 'deterioration of the injury' and 'additional relevant information'. For the latter ground, it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson v QBE Insurance at [106]. [Emphasis added]
2. Both Dr Chan and the insurer referred me to QBE Insurance (Australia) Ltd v Miller (1013) 67 MVR 322; [2013] NSWCA 442. Basten JA considered the standard of review and said this at [36]: "[36] Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus 'whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds': Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: 'If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide'."
3. Dr Chan contended that the proper officer misconstrued the legislation to the extent that she considered that an opinion, such as those of the doctors concerned, could not be capable of having a material effect unless it was based on new objective information. Moreover, Dr Chan submitted that the proper officer approached her task as if it was one that required her to determine whether a new assessment panel would change their mind, not whether they could.
4. Section 62(1A) clearly operates as a filter or gateway provision with the apparent purpose of restricting matters that are to be referred for further assessment to those that could have a material effect on the outcome of the previous assessment. Although the provision does not say so in terms, the notion of a material effect appears clearly to contemplate the prospect or possibility of a different result. Put another way, the legislation operates so that an application for further referral that is unlikely to produce a different result, in the sense that it is incapable of having a material effect on the outcome of the previous assessment, will not succeed.
5. The word "capable" as used in s 62(1A) summons the concept of whether what is being considered as additional information has the potential to have a material effect on the outcome. While she uncontroversially accepted that the medical opinions in question were capable of amounting to additional information, the proper officer in my opinion improperly fettered her discretion by dismissing the prospect that the medical opinions of Associate Professor Haber and Dr Porteous were capable of materially effecting the outcome by reasoning that they were not underpinned or based upon a factual matrix that differed from that with which the original assessment was concerned. The fact that there has been no change of circumstances cannot in my opinion be a relevant disqualification of the reports in an assessment of their capability to have a material effect on the outcome. It may be accepted at one level that the likelihood that the reports would have the relevant effect in such circumstances may be low: but that is not what the proper officer was concerned to determine. The medical reports in question did not lose their capability of having such an effect. The proper officer's expressed concern, that the "opinions do not appear to be based on any new findings or information than that which was considered by the Panel" indicates either that she posed the wrong question or improperly limited the scope of her inquiry. Put slightly differently, it was an error for the proper officer to say that because the medical reports were not based on new findings or information that they were for that reason incapable of having a material effect on the outcome of the previous assessment. In either case, in my opinion, this constitutes an error on the face of the record.

Orders

1. I consider that the following orders should be made: 1. Set aside the decision of the second defendant, in her capacity as proper officer of the third defendant dismissing the plaintiff's application for a further medical assessment, dated 3 February 2020 made pursuant to s 62 of the Motor Accidents Compensation Act 1999. 2. Remit the matters the subject of the decision to the third defendant for reallocation to a different proper officer for determination of the plaintiff's application according to law. 3. Order the first defendant and the third defendant to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2020