Garcia v Motor Accidents Authority of New South Wales

(v) Each of Matter No. 2007/04/2229SG and Matter No. 2008/04/1677SS be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law;

(vi) The second defendant pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed.

CATCHWORDS : ADMINISTRATIVE LAW - Medical Assessment under Motor Accidents Compensation Act 1999 - error of law in applying the principles of causation - construction of "additional relevant information about injury" for purpose of reference for further medical assessment - errors of law disclosed - orders issued

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

AGL v Valuer-General (1940) SR (NSW) 126 Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Haider v JP Morgan Holdings Aust Ltd Trading As JP Morgan Operations Australia Ltd [2007] NSWCA 158 HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292 CASES CITED : Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210 Williams v R [1986] HCA 88; (1986) 161 CLR 278

TEXTS CITED : The Macquarie Dictionary, 3rd ed (1991)

Magdalena Garcia (Plaintiff) PARTIES : Motor Accidents Authority of New South Wales (First Defendant) Ronald Roy Neksen (Second Defendant)

A Canceri (Plaintiff) COUNSEL : Submitting appearance (First Defendant) J Turnbull (Second Defendant)

CMC Lawyers (Plaintiff) SOLICITORS : Crown Solicitor's Office (First Defendant) Holman Webb Lawyers (Second Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30118/2008 Magdalena Garcia v Motor Accidents Authority of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: By amended summons, Ms Magdalena Garcia seeks to quash a medical assessment ("the Assessment") of her by Dr Clive Kenna ("the Assessor") of the Medical Assessment Service ("MAS"), issued on 25 October 2007, in relation to an injury allegedly caused by a motor vehicle accident involving Ms Garcia. The MAS is a service conducted by the first defendant, The Motor Accidents Authority of New South Wales ("the Authority"). Relevantly, the second defendant, who is represented in these proceedings, by an insurance company, caused, in whole or in part, the motor vehicle accident. Further, Ms Garcia seeks to quash a decision refusing a further medical assessment. 2 Ms Garcia alleges that the Assessment is vitiated by error in that the Assessor applied the wrong test of causation, in determining the extent of any injury caused by the motor vehicle accident. The grounds, upon which Ms Garcia relies, allege that the aforesaid error is "jurisdictional error", although it is not absolutely clear why jurisdictional error is necessary in order for Ms Garcia to succeed. 3 The Assessment of the MAS is issued for the purposes of the Motor Accidents Compensation Act 1999 ("the Act"), which establishes a regulatory scheme for the compensation of injury arising from motor vehicle accidents. An assessment is, pursuant to the terms of s 61(2) of the Act, conclusive evidence as to the matters certified therein, for the purpose of any court proceedings or any assessment by a claims assessor. 4 On 8 August 2008, the Motor Accidents Assessment Service of the Authority issued a decision, refusing to refer Ms Garcia for medical reassessment. This would allow the Authority to issue a final decision of a Claims Assessor purportedly compensating Ms Garcia for the relevant injury, which decision would not include non-economic damages. To the extent that the Assessment was valid and binding, the Act precludes the awarding of damages for non-economic loss: see s 131 of the Act. 5 Notwithstanding the terms of the amended summons and necessary problems associated with a declaration of invalidity or a declaration that a decision be quashed, these proceedings have been argued on the basis that the Assessment is vitiated by error of law. That error of law related to the test for causation. The causation issue arises because Ms Garcia was required to have an operation on her back and, it is alleged, the error of the Assessor was to treat the operation, and its effect, as being related wholly to a pre-existing degenerative condition and not at all to the motor vehicle accident. Ms Garcia alleges that the foregoing was not simply an error of fact, but a misunderstanding of the test to be applied in determining causation. 6 The circumstances of the motor vehicle accident are wholly irrelevant to these proceedings. The only issue relates to the circumstances of the Assessment, the discussion of which now follows and will, to the extent necessary, set out sufficient facts for it to be unnecessary for those facts to be the subject of a separate treatment. It is, however, necessary to discuss briefly the place that assessments play under the Act. 7 As to the refusal to refer Ms Garcia for a further medical assessment, it is alleged that the provision by Ms Garcia of opinions as to the cause of her current injuries was "additional relevant information about the injury", within the terms of s 62(1) of the Act. Because the Authority treated the further opinion as other than "additional relevant information about the injury", there was an error (perhaps jurisdictional error) that vitiated the decision to refuse referral for a further medical assessment. The Function of and Procedure for Medical Assessments 8 Under the Act, common law rights to damages for non-economic loss were significantly modified from that which previously applied under the common law. As earlier stated, s 131 of the Act prohibits the awarding of damages for non-economic loss, unless there be greater than 10% permanent impairment of the injured person as a result of the injury for which the Act compensates. 9 The Act also requires any dispute about whether the permanent impairment of the injured person is more or less than the 10% threshold to be resolved by an assessment by a Medical Assessor under Part 3.4 of the Act. Again, as earlier stated, the assessment by the Medical Assessor thereunder is conclusive evidence in any court proceedings or for the purpose of any assessment by a Claims Assessor, at least in that respect. 10 The only basis, expressed in the Act, for the rejection, by a court, of the assessment of permanent impairment of the injured person, is that the process by which the assessment was determined denied to one or other of the parties appropriate procedural fairness: see s 61(4) of the Act. Even in the last mentioned circumstances, a court is entitled to reject a certificate on the grounds of denial of procedural fairness, only if it be satisfied that the admission of the certificate would cause substantial injustice to the party denied procedural fairness. 11 But for the provision relating to the certificate being conclusive evidence, and the express reference to an exception on the grounds of denial of procedural fairness, there seems to be no privative provision restricting any other jurisdiction of the Court that may allow the Court to quash the assessment on grounds available for judicial review. 12 It is possible that the express reference to a denial of procedural fairness as a ground for rejecting a certificate (and the only express ground) was intended to imply an exclusion of any other ground: expressum facet cessare tacitum or expressio (inclusio) unius est exclusio alterius. However, the rule of construction summarised by either of those maxims (and others of like effect) must be applied with extreme caution. It is a useful tool, to be applied with care and not universally. Usually it is utilised in confirming a construction that is otherwise available. It is "a valuable servant, but a dangerous master": Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88. 13 It would seem that if the legislature were desirous of excluding judicial review in the courts, then it could very easily have expressly done that. The right of an individual to seek orders in the nature of prerogative relief is a fundamental aspect of the rule of law, and a common law right, that, if it were able to be excluded, could be excluded only expressly or by words of necessary intendment: see Houssein, supra; Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309. The Medical Assessment 14 The Assessor possesses a clinical specialty in musculoskeletal medicine. A statement of reasons accompanied the Assessment under Part 3.4 of the Act. It is necessary to set out, in some detail, the reasons of the Assessor. Those reasons note that Ms Garcia brought four imaging studies/reports to the Assessor to support her claim: a CT scan of the cervical and lumbar spine of 3 August 2006; an MRI of the cervical spine of 22 November 2006; an MRI of the cervical and lumbar spine of 27 October 2003; and, an MRI of the lumbar spine of 9 May 2007. 15 The Assessor referred an injury ("Back-strain") for further medical assessment pursuant to the terms s 62 of the Act, and listed the injuries to be assessed for stabilisation under s 61(2) of the Act as: o Cervical Spine - Soft tissue injury/nerve injury/scarring o Thoracic Spine - Soft tissue injury o Right Shoulder - Soft tissue injury/nerve injury/scarring o Right Arm - Strain o Right Elbow - Soft tissue injury 16 The Assessor assessed for permanent impairment, the following injuries: o Back - strain o Cervical Spine - Soft tissue injury/nerve injury/scarring o Thoracic Spine - Soft tissue injury o Right Shoulder - Soft tissue injury/nerve injury/scarring o Right Arm - Strain o Right Elbow - Soft tissue injury 17 The Assessor notes that Ms Garcia had a long history of both neck and back pain. There had been a previous injury to her lower back and she had subsequently retired for medical reasons. The back symptoms had persisted, notwithstanding that she had stopped work. Yet she had undergone no operative procedure for that previous injury. She had been treated with physiotherapy and hydrotherapy. Ms Garcia recounted to the Assessor that, while she had an ongoing problem with her back, the symptoms were more severe since the motor vehicle accident. There is a similar notation in relation to the cervical spine. The assessor stated: "She acknowledged that before the motor vehicle accident she had neck and left arm pain. Following the motor vehicle accident her symptoms became right sided; that is, neck and right arm, with increased levels of pain.

... She [Ms Garcia] noted that the back pain had improved to some extent, but the neck pain persisted and as a result of this she was put on Norspan patches which she has been on for the last 12 months.… In 2005 she essentially therefore stopped all soft tissue therapy, but the neck and arm pains were persistently problems and as a result of the referral through to Dr Steel in view of her neck and right arm pain, with a diagnosis of spinal canal stenosis she underwent a laminectomy, which was performed in March 2007. Post-operatively she feels that the headaches have not been as severe but the neck pain is still present. Overall she feels there has not been a lot of improvement post-operatively, although she does acknowledge that the cervical pain is possibly less frequent and not as severe, but it can be on occasions." 18 The Assessor also noted that Ms Garcia's current complaints "are those of intense neck pain with right occipital headaches. She has milder pain involving the thoracic spine. She has fairly intense pain involving the lower lumbar spine with some distal referral. The headaches can be severe, as indeed can the neck pain. Both symptoms are aggravated by cervical movements. Symptoms flaring into the right upper extremity are not nearly as severe and she notes overall this is a lot better. Indeed, the right upper limb pain was vastly improved post operatively." The Assessor then recites the results of clinical examinations and reviews the documentation that had been provided, almost entirely by summarising or repeating the content of the reports to which reference has already been made. 19 At page 13 of his Statement of Reasons, the Assessor said: "Magdalena Garcia is a 59-year-old woman who sustained soft tissue injuries in a motor vehicle accident on 14 th August 2004. One notes that she had a clinically significant history of both cervical and lumbosacral symptomatology secondary to advanced degenerative change involving both regions prior to the motor vehicle accident, but I accept that there was temporary exacerbation as a result of the motor vehicle accident. At the time of my examination I considered that the initial aggravation had since ceased and her clinical condition had essentially stabilised.

I do consider the pre-existing conditions (advanced degenerative change, particularly involving the cervical and lumbar spine) have significantly influenced the course of the current events and clinical presentation. I have commented on treatment and medication received. As noted therefore, both the neck and back conditions pre-date the motor vehicle accident and were certainly symptomatic prior to the accident. I consider the reason for the operative procedure pertaining to the cervical spine is advanced degenerative change with subsequent spinal canal stenosis which subsequently resulted in a spinal fusion. I do not consider this is directly related to the motor vehicle accident per se and I consider that this pathology was fundamentally pre-existent.

After reviewing the list of injuries as submitted by the parties, examining the claimant and reviewing the accompanying documentation, it is determined that the following injuries WERE caused by the motor accident: * Cervical Spine - Soft tissue injury/nerve injury/scarring * Thoracic Spine - Soft tissue injury * Right Shoulder - Soft tissue injury/nerve injury/scarring * Right Arm - Strain * Right Elbow - Soft tissue injury." (Emphasis added.) 20 As a consequence of the foregoing, the Assessor determined that there was a minor impairment to the Cervicothoracic spine resulting in a Whole Person Impairment of 5% arising from the motor vehicle accident. No other injury, as identified in the Statement of Reasons, gave rise to any Whole Person Impairment. Therefore, the Certificate of Determination of Assessment that accompanied the Statement of Reasons certified a Whole Person Impairment not greater than 10%, which certificate was conclusive evidence denying to Ms Garcia the capacity to recover damages for non-economic loss. Consideration 21 Ms Garcia relies upon the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 as to the existence of jurisdictional error. Counsel, on her behalf, submits that jurisdictional error occurs when a tribunal identifies the wrong issues; asks itself the wrong questions; ignores relevant material; relies on irrelevant material; or, at least in some circumstances, makes an erroneous finding or a mistaken conclusion. 22 Frankly, it is unclear why the plaintiff has taken upon herself the more onerous task of establishing jurisdictional error. An error of law, on the face of the record, in the ultimate determination of a tribunal (including, in this case, the Assessor), is sufficient ground for the issue of orders in the nature of certiorari. The Assessor is required to act judicially, in the sense that the term is used in establishing a basis for the issue of certiorari. The issue of the certificate of assessment is the ultimate determination of the Assessor. If the wrong test were to have been utilised to determine causation, then there would be an error of law. For the purpose of orders in the nature of certiorari, the face of the record includes reasons for the decision: see generally Supreme Court Act 1970, s 69(3) and s 69(4). 23 On the other hand, the error for which Ms Garcia contends may not be the application of the wrong test in making the decision, but an error of law in applying the right test. In other words, the test that must be applied is whether the motor vehicle accident caused the injury. The Assessor has asked himself that question and utilised that test. The submission of Ms Garcia, in essence, is that there was an error of law in the determination of that issue. 24 Ordinarily, causation is a question of fact, not law: see March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 524. However, an error of law would occur, if the tribunal misunderstood the principles to apply in assessing causation by determining whether, in this case, the motor vehicle accident was not a major cause or the sole cause of the injuries. It is sufficient for the tortious act to have contributed to the damage; it need not be the sole cause. Nor need it be the major cause: see March, supra; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. 25 The Guidelines for the Assessment of the Degree of Permanent Impairment, issued by the Authority, refers the Medical Assessor to the common law principles concerning causation and relevantly summarises the approach as: "There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible." 26 For present purposes, the above-cited summary in the Guidelines is sufficient. If the motor vehicle accident, subject to assessment, were to have contributed materially to the injuries that gave rise to the operation, then the damage caused by the operation (the lumbar laminectomy) has been materially caused by the motor vehicle accident: see Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 529. The necessary assumption in the foregoing is that Ms Garcia acted reasonably in undergoing the operation. 27 Ultimately, whether there has been an error of law depends upon a proper construction of the Statement of Reasons. The relevant parts have been recited above. The parties dispute its proper interpretation. In determining the approach that the Assessor has taken, it is impermissible to trawl through the Statement of Reasons, looking for error, or to apply an overly strict or overzealous use of language: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 28 There are some ambiguities in the Statement of Reasons and some inconsistencies, which are crucial to the resolution of the issue between the parties. Some of the inconsistencies are issues of fact, with which the Court is not currently concerned. For example, it is difficult to understand how, as a matter of fact, neck and left-arm pain translates into symptoms on the right side, without any cause arising from the motor vehicle accident. However, those factual inconsistencies may assist in the proper determination of the intention of the Assessor on the issues of substance. 29 One aspect of the Statement of Reasons is that the Assessor makes clear that the pre-existing condition and symptomatology, arising from degenerative change, was clinically significant. But significance is not the test. The pre-existing injury would need to be the only, or the operative, cause of the injury. The Assessor notes that the initial aggravation had ceased and her clinical condition had stabilised. Yet the Statement of Reasons does not indicate whether it had stabilised in a condition worse than it had started. 30 This confusion is exacerbated by the comment of the Assessor that the pre-existing conditions have "significantly influenced" the course of the current events and clinical presentation. It seems neither party disputes that proposition. But, at least implicitly if not expressly, such a statement is consistent only with the motor vehicle accident being another "influence" on the current events and clinical presentation. 31 The expression that caused the most debate between the parties was the use of the term "per se" and the sentence that contains it. The term "per se" is, itself, ambiguous. It is often used incorrectly. It may mean "by itself" or "in itself" and often means "intrinsically": see The Macquarie Dictionary, 3rd ed (1991). 32 If "per se" were to have been used by the Assessor to mean "by itself", it discloses an error of law in the determination of causation. If it is being used, perhaps incorrectly, to mean "as such", then error is not necessarily disclosed. The confusion is increased by the use of the word "directly" in the same sentence. 33 Properly construed, and construing the Statement of Reasons as a whole, the Assessor considered there was a temporary exacerbation, which had disappeared, and that Ms Garcia's clinical condition had stabilised. That stabilised clinical condition was influenced by two factors: significantly by her pre-existing conditions and otherwise by the motor vehicle accident. But the motor vehicle accident did not, by itself, cause the pathology, which was mostly a result of the pre-existing condition. This construction is supported by the significant alteration in symptomatology, namely, the existence of right-sided pain (that is in the neck and right arm) and increased levels of pain that occurred only after the motor vehicle accident. 34 As a consequence of the foregoing, the Assessor has determined causation without regard to the motor vehicle accident, as an operative cause of the injuries, including the injuries from undergoing the resulting operation. This is to misunderstand the nature of causation and to disregard, in the assessment thereof, an operative, but not major, cause of injury. This is an approach, which discloses error of law. Appropriate orders will issue in relation thereto. 35 The other issue raised by Ms Garcia relates to the proper interpretation of s 62(1) of the Act, particularly the meaning of the term "additional relevant information about the injury". The issue raised is not as simple as the parties seem to have treated it. Nice questions arise as to whether an error in the determination of such a question would be an error of law that would give rise to the issue of certiorari, or an error of law, at all. It may be that a failure to take into account the subsequent opinion, if it were such information, would be a failure to take into account a relevant consideration in the exercise of what seems to be a discretionary power. In those circumstances, the failure to consider the additional information would be a jurisdictional error: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. 36 The High Court of Australia cited, with approval, a summary of general propositions relating to the delineation of a question of law. That summary was identified, as general propositions, by the Full Court of the Federal Court of Australia in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. Leaving aside the qualification by the Full Court of the Federal Court of the fifth proposition there described, the five identified general propositions are: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." ( Pozzolanic , supra, at 287, cited with approval in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395.) (Citations omitted.) (See also AGL v Valuer-General (1940) SR (NSW) 126 at 82; Williams v R [1986] HCA 88; (1986) 161 CLR 278; Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210; Haider v JP Morgan Holdings Aust Ltd Trading As JP Morgan Operations Australia Ltd [2007] NSWCA 158; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292.) 37 It would seem that the determination, whether a subsequent medical opinion as to the causation of the injuries is "additional relevant information about the injury", requires the Assessor to give meaning to a technical legal term or to determine the effect or construction of a term, the meaning or interpretation of which is established, each of which is a question of law. 38 The proper construction of the term in s 62(1) of the Act is a question of law. The determination, whether, in any particular case, the information is "additional", or, whether, in another case, the material is "information", will be a question of fact. The term "additional information" about the injury does not include a restatement of information already received. Nor does it include a summary of information already received. It does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind, would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act. 39 In these proceedings, the decision of the Authority, made on 8 August 2008, refused to refer Ms Garcia's matter for medical assessment on a further occasion, because the Authority considered that the new medico-legal opinion of the medical expert could not be "additional relevant information about the injury". Such a decision discloses an error of law, because it misconstrued the meaning of the term "additional relevant information about the injury". 40 The medical opinion upon which Ms Garcia relied for that purpose were the opinions of Professor Fearnside, of 14 December 2007, the reports of Dr Maniam, of 10 August 2007 and 14 November 2007, and the report of Dr Steel, of 18 December 2007, each of which opine that the cause of the current injuries, at least in part, derives from the motor vehicle accident. No opinion to that effect (by any medical practitioner) was previously before the Assessor. 41 The provision of the additional information does not require that the opinion of those medical practitioners be preferred over the opinion of the appointed medical assessor. The Assessor continues to have the capacity to form her or his own opinion. But an opinion of that kind, if no such opinion was previously available, is additional information relevant to the Assessment, and is relevant additional information "about the injury". The misconstruction of the jurisdictional precondition in s 62(1)(a) of the Act is an error of law in the ultimate determination of whether to refer Ms Garcia for a further assessment. As a consequence, it is amenable to prerogative writ, and appropriate orders will issue. Conclusion 42 On the basis of the foregoing considerations, there are two errors of law disclosed in the two different steps of the Authority. Firstly, the Assessor has, on a proper construction of his Statement of Reasons, determined the Assessment in a manner that involved an error of law, namely, the proper determination, and test, for causation under the Act. 43 Secondly, the Authority, in refusing to refer Ms Garcia for further medical assessment, has acted on a misunderstanding of the proper construction of the Act, which misunderstanding also discloses an error of law. 44 The Court makes the following orders:

(i) A declaration that the Certificate of Determination of Assessment issued on 25 October 2007 in Matter No. 2007/04/2229SG is vitiated by error of law;

(ii) An order in the nature of certiorari removing into the Court the Certificate of Determination of Assessment issued on 25 October 2007 in Matter No. 2007/04/2229SG and quashing that Certificate;

(iii) A declaration that the decision of the Proper Officer of the Motor Accidents Authority of New South Wales made on 8 August 2008 in Matter No. 2008/04/1677SS is vitiated by error of law;

(iv) An order in the nature of certiorari removing into the Court the decision of the Proper Officer of the Motor Accidents Authority of New South Wales made on 8 August 2008 in Matter No. 2008/04/1677SS and quashing that decision;

(v) Each of Matter No. 2007/04/2229SG and Matter No. 2008/04/1677SS be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law;

(vi) The second defendant pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed.

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.