Glover-Chambers v Motor Accidents Authority of New South Wales & Anor

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

Ackling v QBE Insurance (Australia) Ltd & Anor [2009] NSWSC 881 CASES CITED : Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 Wilkie v Motor Accidents Authority of New South Wales [2007] NSWSC 1086

Alana Glover-Chambers (Plaintiff) PARTIES : Motor Accidents Authority of New South Wales ( First Defendant) QBE Insurance (Second Defendant)

A C Canceri (Plaintiff) COUNSEL : Submitting Appearance (First Defendant) M Snell (Second Defendant)

CMC Lawyers (Plaintiff) SOLICITORS : Crown Solicitor (First Defendant) QBE Insurance (Australia) Limited (Second Defendant)

LOWER COURT JURISDICTION : Motor Accidents Authority of NSW

LOWER COURT JUDICIAL OFFICER : Brendan Ballach (Authority's proper officer)

• 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30012/09 ALANA GLOVER-CHAMBERS v MOTOR ACCIDENTS AUTHORITY OF NSW & ANOR

JUDGMENT 1 HER HONOUR: In March 2004 Alana Glover-Chambers was injured as a passenger in a car accident when the driver lost control of the car whilst making a right-hand turn. Her entitlement to damages in respect of the injuries she received is governed by the Motor Accidents Compensation Act 1999. A claimant under that Act is not entitled to damages for non-economic loss unless the degree of permanent impairment as a result of injuries caused by the accident is greater than 10% (s 131 of the Act). 2 The Act prescribes procedures for the resolution of a dispute between the parties as to whether the degree of impairment meets that threshold (Part 3.4 of the Act). The dispute may be referred to a medical assessor appointed under the Act, who is required to give a certificate as to the matter referred. There is a limited right to have such an assessment reviewed by a review panel of medical assessors, who may either confirm the original certificate or issue a new certificate. 3 Subject to certain exceptions, the certificate of the medical assessor or review panel then stands as conclusive evidence of the matters certified. However, pursuant to s 62 of the Act, the matter may still be referred again for further medical assessment in limited circumstances. 4 On 23 August 2007, a review panel of medical assessors certified the degree of impairment suffered by Ms Glover-Chambers to be not greater than 10%. The issue raised by the present proceedings is whether a subsequent decision of the Motor Accidents Authority refusing to refer the matter again for further medical assessment under s 62 should be quashed.

Context in which the issue arises 5 The driver's insurer does not dispute that Ms Glover-Chambers sustained injuries caused by the fault of the driver in the accident. However, the insurer was unable, when the claim was made, to determine whether the degree of permanent impairment as a result of the injuries was greater than 10%. As already noted, the significance of that issue was that its resolution determined whether there was an entitlement to damages for non-economic loss. 6 On 30 January 2007 Ms Glover-Chambers filed an Application for Medical Assessment to have the issue determined in accordance with the procedures contemplated in Part 3.4 of the Act. The issue was referred to Dr Lorraine Jones who, on 19 May 2007, certified that Ms Glover-Chambers' injuries caused by the accident gave rise to permanent impairment greater than 10%. The injuries identified by Dr Jones included injury to the right shoulder, as to which Dr Jones assessed the degree of whole person impairment to be 3%. The total percentage of whole person impairment assessed by Dr Jones was 11%. 7 The insurer applied under s 63 of the Act to have the medical assessment made by Dr Jones referred to a review panel. The application for review was based on the contention that Dr Jones had not adequately considered whether injuries to Ms Glover-Chambers' shoulders were caused by the accident. The issue of causation is one that is open to be determined by a medical assessor or review panel appointed under the Act: Ackling v QBE Insurance (Australia) Ltd & Anor [2009] NSWSC 881 at [84] per Johnson J. 8 As already noted, the certification of the review panel was that the whole person impairment was, in total, not greater than 10%. The statement of reasons in respect of that certificate discloses that the principal reason for the different outcome was that the panel concluded that "there was not an injury to the right shoulder causally related to the motor accident". In that respect, the panel expressly disagreed with Dr Jones. Subject to any subsequent referral under s 62, the certificate of the review panel accordingly stands as conclusive evidence against Ms Glover-Chambers on the issue whether she meets the 10% threshold under s 131 of the Act. 9 A claimant's right under s 62 of the Act to have a matter referred for medical assessment again is confined to specific grounds, but there is no express limit as to the number of such applications that may be made. Since the determination of the review panel, Ms Glover-Chambers has made three applications under that section. On each occasion, a proper officer of the Motor Accidents Authority has dismissed the application without referring it for further medical assessment. The present proceedings concern the third such decision.

Whether the amended legislation applied 10 Before considering the decision of which review is now sought, it is necessary to consider the form in which the applicable legislation stood at the relevant time. The third application for further assessment was lodged on behalf of Ms Glover-Chambers on 12 September 2008 and dismissed on 14 October 2008. Between those dates, amendments to the Act came into force, including an amendment to s 62 of the Act. 11 Before the amendment, s 62 provided: "(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. (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency." 12 The amendment introduced the following two additional provisions: "(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) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority" )." 13 There was some debate at the hearing before me as to whether the amendment applied to Ms Glover-Chambers' third application under s 62. The transitional provision at Schedule 5, Part 6, clause 29 of the Act provided: "An amendment made by the 2007 amending Act to Chapter 3 (Motor accident injuries) extends to a matter referred for assessment under Part 3.4 after the commencement of the amendment even if the motor accident concerned occurred before that commencement." 14 The applicability of the amendment is accordingly determined by reference to whether the matter was "referred for assessment" before or after the commencement of the amendment. However, that issue is complicated by the fact that, both before and after the amendment, the legislation contemplated a two-stage process of referral. 15 Section 62(1) refers to a matter being "referred again" for further medical assessment by any party to the dispute. However, s 62(1B) of the amended section expressly contemplates referral in the first instance to the proper officer of the Authority, presumably for the purpose of determining whether the conditions of the section are met. Before the amendment, a similar process was contemplated by s 60(4), which required the proper officer to arrange for referral of a request that had been "duly made", presumably after determining whether that was the case. 16 It is not clear whether the term used in the transitional provision ("a matter referred for assessment under Part 3.4") was intended to identify the referral of a dispute by a party to the proper officer or, alternatively, the subsequent referral (if any) by the proper officer to a medical assessor. In any event, on either analysis, the transitional provision does not extend the amendment to the relevant application in the present case. Ms Glover-Chambers referred the matter before the commencement of the amendment, and it was never referred by the proper officer after that date. Accordingly, I am satisfied that Ms Glover-Chambers' third application for further medical assessment was governed by s 62 as it stood before the amendment. The proper officer's reasons 17 Section 62 contemplates two discrete and alternative grounds for further referral, namely, deterioration of the injury and the existence of "additional relevant information about the injury": Wilkie v Motor Accidents Authority of New South Wales [2007] NSWSC 1086 at [40] per Malpass AsJ.

18 There is no suggestion in the present case that Ms Glover-Chambers' third application for further assessment was based on deterioration of the injury. Implicitly, the basis for the application was the existence of additional relevant information about the injury. The only additional information provided in support of the application was the report of Dr J. Vote dated 25 August 2008. That report touches on the issue of causation in respect of the shoulder injuries, albeit in fairly oblique terms. 19 The proper officer gave the following reasons for dismissing the application: "You have argued that the outcome is capable of being changed by the evidence you have submitted. Your argument does not convince me that this would be the case. Specifically: The report of Dr Vote dated 25 August 2008 is additional information but is a difference of opinion based on the same objective findings to the MAS Review panel. The MAS Review panel determined that the injury to the claimant's right shoulder was not causally related to the accident and the application provides no additional information to the contrary. This does not indicate how the outcome would be altered if the matter was to proceed to further assessment. In accordance with clause 14.7 of the Guidelines the application is dismissed."

Grounds for the present application 20 The present proceedings invoke the Court's jurisdiction under s 69 of the Supreme Court Act 1970 to grant relief in the nature of prerogative writs. That jurisdiction is not restricted by the Act: Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 per Rothman J at [11] to [13]. 21 The amended summons identified the following grounds for seeking such relief: "… 2. The Plaintiff contends that the First Defendant committed a jurisdictional error by not correctly applying s 62(1A) of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). Section 62(1A) of the Act provides that a matter may not be referred back for further assessment by a party to a 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. 3. The First Defendant concluded that the report of Dr Vote constituted "additional information" but was a difference of opinion based on the same objective findings of the MAS review panel. 4. The question to be addressed by the First Defendant was whether the additional information that supported the Plaintiff's Application was "capable of having a material effect on the outcome of the assessment". It is contended that this question was not addressed."

22 Those grounds were formulated on the premise that it was the amended version of s 62 of the Act that governed Ms Glover-Chambers' third application for further assessment. During the hearing of the proceedings, Mr Canceri, who appeared for Ms Glover-Chambers, effectively abandoned that premise. He submitted, however, that whichever version of the section applied, the proper officer asked himself the wrong question or identified the wrong issue. 23 Mr Canceri submitted that the question that the proper officer posed for himself was, in effect, whether the outcome "would be altered" if the matter were to proceed to further assessment in light of the additional information. I accept that, so far as the reasons for decision set out above disclose, that is the question the proper officer posed for himself. 24 Mr Canceri further submitted that the proper officer should have asked whether the evidence was capable of having a material effect on the outcome of the previous assessment. That is the test posed under s 62(1A) introduced by the amendment which came into force on 1 October 2008. However, for the reasons already explained, in my view Ms Glover-Chambers' application was governed by s 62 as it stood before that amendment. The question required to be considered under the old provision was whether there was "additional relevant information about the injury" within the meaning of s 62(1). (As already noted, the alternative ground of deterioration of the injury was not invoked in the present case.) 25 The requirement that the additional information be "relevant" probably imports a requirement that it be capable of having a material effect on the outcome of the previous assessment, which is the jurisdictional pre-condition now articulated in s 62(1A). In my view, however, it is preferable to express the correct question in the precise terms of the section. That question is, simply, whether the application was made on the grounds of "additional relevant information about the injury". 26 In any event, whether the question is formulated in the terms I have indicated or in the terms suggested on behalf of Ms Glover-Chambers, it is not the question the proper officer asked himself. In my view, the reasons for dismissing the application expressed in the letter dated 14 October 2008 disclose that the question the proper officer posed for himself was whether he was convinced that the additional information would alter the outcome of the previous assessment. That, in my view, imposed an additional hurdle not imposed under the legislation. The Act contemplates an entitlement to referral for further medical assessment provided only that the additional information about the injury is "relevant". As submitted by Mr Canceri, that probably means that the information must be capable of altering the outcome, but it does not mean that the proper officer must be persuaded that it will have that effect. Provided that the relevance threshold is met, the final assessment of the additional information is a matter for a medical assessor. It should not, in my view, be pre-empted by a proper officer of the authority. 27 In fairness to the officer who dismissed Ms Glover-Chambers' application, it should be noted that the question he posed for himself is broadly consistent with the terms of the Guidelines issued by the Authority with respect to the procedures for referral of medical disputes. Clause 14.7 of the Motor Accidents Authority Medical Assessment Guidelines states that the proper officer may dismiss an application under s 62 if he or she is "not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application". 28 The version of the Guidelines provided to the Court during the hearing is plainly directed to the legislation as amended, but was relied on by the Authority as having equal application to the request for further referral made by Ms Glover-Chambers. In my view, clause 14.7 of the Guidelines is inconsistent with the Act as it stood before the amendment. As already noted, the proper officer was required under s 60(4) (now repealed) to arrange for a request "duly made" to be referred for assessment. In my view, a request for further referral under s 62 was to be regarded as having been duly made so long as it was properly based on one of the two grounds identified in s 62(1)(a). 29 It might be argued by similar reasoning that clause 14.7 of the Guidelines is also inconsistent with the legislation as amended, but it is not necessary for present purposes to determine that issue. 30 Although it is not a question that arises in the present case, I note that, in Wilkie, it was submitted (apparently on behalf of the insurer in that case) that the words "additional relevant information" in s 62 are not restricted to information which was not available at the time of the first assessment or which could not have been reasonably obtained before that assessment. Malpass AsJ, without expressing a final view, accepted that that appeared to be the better view: at [43] to [45]. I respectfully agree.

Conclusion 31 For the reasons set out above, I am satisfied that the decision dismissing the application for further medical assessment entailed an error of law and is amenable to prerogative relief on that basis. It remains to consider whether it is appropriate for the Court to exercise its discretion to grant such relief in the circumstances of the present case. 32 It was submitted on behalf of the Authority that, having regard to the unfortunate history of the present matter, the Court should decline to grant relief. Mr Snell, who appeared for the insurer, referred me to the decision of Malpass AsJ in Wilkie at [27] to [29] where his Honour refused to grant relief on the basis that, in that case, the plaintiff had come to this Court seeking review of a decision to refer a matter for medical assessment only after the assessment had been made. His Honour was of the view that the claimant should rather have pursued her statutory remedy of seeking review of that assessment under s 63 of the Act. 33 That particular criticism cannot be made in the present case. Unlike the position in Wilkie, Ms Glover-Chambers has pursued an alternative statutory right (the entitlement to apply for further medical assessment under s 62) rather than coming to this Court to seek review of the decision of the review panel revoking the certificate issued by Dr Jones. 34 In Wilkie at [53], Malpass AsJ expressed the tentative view that it may be appropriate for the proper officer to refuse an application for further medical assessment if repeated applications were made on the basis of reports subsequently obtained, so as to prevent any abuse of the s 62 process. Militating against that view, at least so far as the position before the amendment is concerned, was s 60(4), to which I have already referred. That section provided: "The proper officer of the Authority is to arrange for any such request that is duly made to be referred to one or more medical assessors" 35 The intention appears to have been that a party to a medical dispute was entitled to have the dispute referred for assessment provided that the request was "duly made". I see no reason why that provision would not have applied equally to a request to have a matter "referred again" under s 62(1). 36 In any event, as unfortunate as the history of the present matter may be, I am not satisfied that the third application amounted to an abuse of the process allowed under s 62. As submitted on behalf of Ms Glover-Chambers, the report of Dr Vote was the first medical opinion sought to be put before an assessor addressing the issue of causation in respect of the right shoulder injury. It was not to the point to say, as the proper officer said, that the review panel had determined that issue against the claimant. The very basis on which further assessment is sought is that the review panel did not have the opinion of Dr Vote before it when it made that determination. 37 That is not to say that a party would automatically be entitled to have a matter referred again under s 62 on the strength of any further expert medical opinion dealing with the cause of injury. Mr Canceri placed considerable reliance on the decision of Rothman J in Garcia at [38] where his Honour said: "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." 38 As indicated by those remarks, in order to satisfy the requirements of s 62(1)(a), the opinion will only be "additional" to the extent that it has not previously been expressed in the material put before the assessor. Mr Snell submitted that the opinion of Dr Vote was not "additional relevant information about the injury" because the first assessor (the Review Panel) had before it the opinion of Dr Jones on that issue. It is doubtful whether that should be determinative in the present case, when that was the very assessment being impugned in the application for review. The critical question, which was not addressed by the proper officer, is whether the expert medical opinion of Dr Vote is additional relevant information about the injury within the meaning of s 62(1). 39 For those reasons, I am satisfied that Ms Glover-Chambers is entitled to the relief sought. 40 The orders are:

(1) A declaration that the decision of the proper officer of the Motor Accidents Authority of New South Wales made on 14 October 2008 is vitiated by error of law.

(2) That the decision be quashed and remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(3) That the second defendant pay the plaintiff's costs of the 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.