Joseph Elias v Insurance Australia Limited t/as NRMA Insurance

Supreme Court of NSW|2017-09-14|Before: Button J, Rothman J

Introduction

Due to the helpful refinement of issues that occurred at the hearing of this application for judicial review of the decision of a proper officer of the State Insurance Regulatory Authority of New South Wales (SIRA), made pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (the Act), this judgment can be briefer than would otherwise have been necessary.
In a nutshell, senior counsel for the first defendant (to which I shall refer for convenience simply as the defendant, the second defendant having entered a submitting appearance) conceded that legal error had been made by the proper officer. That was on the basis that the proper officer had applied the principles discussed in the judgment of Rothman J in Singh (No. 2) [2010] NSWSC 1443, which elucidated the concept of "additional relevant information" found in s 62 of the Act. It was conceded, however, that the understanding of the statutory test had developed, by way of the subsequent judgment of the New South Wales Court of Appeal in Jubb v Insurance Australia Ltd [2016] NSWCA 153. And yet the proper officer had not given effect to that development in her reasons for decision.
Senior counsel for the defendant submitted, however, that I would exercise my discretion not to make the order of remitter sought in the amended summons of 24 August 2017 of the plaintiff. That was chiefly on the basis that any such remitter would be futile because, even applying proper principle, the application of Mr Joseph Elias (the plaintiff) would be doomed to failure.
In summary, I respectfully agree with the joint position of the two members of the inner Bar who appeared before me: the proper officer applied an incorrect legal test in exercising the evaluative judgment pursuant to s 62 of the Act.
I reject, however, the proposition of senior counsel for the defendant that I can be affirmatively satisfied that there would be no utility in remitting the matter.
For those reasons, I propose to make the orders sought by the plaintiff.

Facts

In the circumstances outlined above, the facts need only be very briefly stated.
The plaintiff was involved in a motor vehicle accident on 20 October 2012. He alleges that he suffered physical and psychological injuries as a result of that accident, and has made a claim for damages pursuant to the Act.
The defendant is an insurer, and has formally admitted liability for the accident.
The plaintiff is involved in a non-curial process of assessment of the disputes about personal injury medical between himself and the defendant. That is taking place within the Medical Assessment Service (MAS) of SIRA, pursuant to Part 3.4 of the Act.
The psychological condition of the plaintiff has been assessed by medical assessors on three occasions.
On 13 May 2014, a medical assessor determined that the psychological condition of the plaintiff was not related to the motor vehicle accident.
On 7 August 2015, a different medical assessor found that the plaintiff was suffering from a major depressive disorder caused by the motor vehicle accident, resulting in 19% whole person impairment (WPI).
On 30 June 2016, the psychological condition of the plaintiff was assessed for a third time by a medical assessor, who reached the conclusion that the psychological injuries of the plaintiff were not caused by the accident. As a result of that finding, the medical assessor took the view that a percentage assessment of WPI would be nugatory.
The result of the latest and extant assessment is, of course, that the plaintiff would not be entitled to any damages for non-economic loss for psychological injury.
After the third medical assessment, the plaintiff obtained further medical evidence, and applied to SIRA for a further assessment of his injuries. The date of that application was 15 November 2016.
The application was made pursuant to s 62 of the Act. That section is as follows: 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) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (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.
That application of the plaintiff to the proper officer was accompanied by written submissions of 9 November 2016. They made it clear that the application was made pursuant to s 62(1) of the Act, and that the submission of the plaintiff was that he now possessed additional information, not considered by the third medical assessor, that was capable of having a material effect on the outcome of the previous assessment.
The written submissions also explicitly invited attention to the decision in Jubb, and relied upon it in support of a referral for further assessment.
On 27 February 2017, the proper officer rejected that application for further assessment. It is that rejection that is the subject of this application for judicial review.

Summary of the reasons for the decision of the proper officer

The reasons commence by setting out the material to which the proper officer has had reference, including the three previous medical assessments.
Thereafter the reasons of the proper officer correctly summarise the statutory test, and refer explicitly to s 62(1A) of the Act.
The reasons go on to indicate that the application is dismissed.
The proper officer goes on to set out the legislation, guidelines and cases to which she had had reference. It is noteworthy that, although Singh (No.2) is recorded there, there is no mention of the subsequent decision in Jubb.
The reasons go on to set out the background of the matter in chronological form.
The reasons proceed to summarise the submissions of the two parties, including with regard to a degree of medical detail that it is not necessary to reproduce here.
The proper officer notes that the plaintiff explicitly relied upon the decision in Jubb in support of his application.
The reasons then go on to discuss the role of the proper officer. They set out an explanation of the meaning of the phrase "additional relevant information" in the section under consideration.
The reasons assert that, for the information to be additional, it must not previously have been in the possession of the party relying upon it. Singh (No.2) is referred to as support for that proposition.
The reasons also assert that a further medical opinion is "only" additional information if it is of a different kind, "that is, it deals with different issues", from the opinions already expressed and considered. Again, Singh (No.2) is relied upon for that proposition.
Separately, other cases are relied upon for further propositions that do not require discussion here.
In rejecting the application, the proper officer said: "22. I am not satisfied that the report of Dr Joanne Guirgis dated 5 August [that is, one of the reports relied upon by the plaintiff for the application] is additional relevant information about the injury. Whilst the report postdates the MAS assessment and is additional to the party relying on it as a ground for further assessment, the report does not contain an opinion of a different kind than the opinions previously expressed and considered."
A little later, the proper officer said: "25. It is clear that the issue of inconsistency in his presentation [that is, the plaintiff] has been previously expressed and considered by Assessor Cassidy [the third medical assessor]. Therefore, the report of Dr Guirgis is a difference of an opinion or a critique of the MAS assessment, which does not form the basis of an application under s 62 of the Act. 26. I am also not satisfied that the report of Mr Peter Rawling dated 12 August 2016 [that is, the other report relied upon by the plaintiff for the application] is additional relevant information about the injury. Whilst the report postdates the MAS assessment and is additional to the party relying on it as a ground for further assessment, the report does not contain an opinion of a different kind than the opinions previously expressed and considered."
A little later, the proper officer said: "29. The report of Mr Peter Rawling therefore also appears to be a difference of opinion or a critique of the MAS assessment, which does not form the basis of an application under s 62 of the Act. The report also appears to provide an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if that expert opinion was obtained after the original assessment."
The reasons conclude with the proposition that, because the proper officer was not satisfied of the "first limb" of the statutory test, there was no need to consider its second limb with regard to whether the information was capable of having a material effect on the outcome.
The reasons thereafter repeat that the application of the plaintiff was dismissed.

Concession of legal error correct

I proceed to summarise briefly my understanding of the judgment of a single judge of the Common Law Division of this Court in Singh (No 2), and the subsequent judgment of the Court of Appeal in Jubb.
In Singh (No. 2), a judgment handed down on 16 December 2010, Rothman J considered the meaning of the phrase "additional relevant information about the injury" to be found in s 62(1)(a) of the Motor Accidents Compensation Act 1999.
His Honour rather narrowly construed the phrase "additional relevant information", in stating that the information must be additional to the party relying on it as a ground for further assessment: at [53]. His Honour took the view that such additional information must objectively not have been available to the relying party before the medical assessment, or that it must have been not reasonably able to have been obtained by that party before that previous medical assessment: at [54]-[59].
The judgment was also to the effect that any further medical opinion is only additional relevant information if it is of a different kind, dealing with different issues, to the previous medical assessment, such as a change in the underlying symptoms or circumstances of the applicant: at [63].
The subsequent Court of Appeal decision of Jubb v Insurance Australia Ltd [2016] NSWCA 153, which was handed down on 4 July 2016, was to the following relevant effect.
The judgment of Gleeson JA (Meagher and Payne JJA agreeing) took the view that "additional relevant information" was not limited to information concerning issues that had not already been considered by the previous medical assessor: at [58]-[60]. Therefore, if the material before the previous medical assessor on an issue was incomplete or inaccurate, the proper officer possesses a discretion (pursuant to the use of the word "may" in s 62(1)) to consider any additional relevant information on the same issue, in order to ensure the ultimate determination is correct: at [64], [79].
The Court of Appeal concluded that the definition of the phrase "additional relevant information" in s 62(1)(a) is not required to be read down: at [65]. Instead, a further medical opinion based on the same material that was available at the time of the previous assessment, may constitute additional information, depending on the character of the information being additional and relevant, to the satisfaction of the proper officer: at [80].
In short, it can be said that the statutory interpretation of s 62 of the Act developed between 2010 and 2016, with the result that the interpretation of the statute provided by Rothman J was made somewhat less restrictive by the subsequent decision of the Court of Appeal.
And yet it can be seen, respectfully, from the extracts from the reasons that I have provided, that the proper officer relied upon principles in Singh (No 2) for propositions adverse to the application of the plaintiff, when those principles had been effectively superseded by parts of the judgment in Jubb.
It is also noteworthy that, although the reasons refer to Jubb having been relied upon by the plaintiff in written submissions, there is no analysis of the principles to be found in that decision. Nor is there any recognition in the reasons that, to the extent that Jubb is inconsistent with Singh (No 2), of course it is the subsequent decision of the Court of Appeal that authoritatively states the correct interpretation of the section.
For those reasons, I accept the submission of senior counsel for the plaintiff, and the concession of senior counsel for the defendant, that the proper officer applied the incorrect legal test in rejecting the application of the plaintiff for a further medical assessment.
An error of law has been established by the plaintiff. That would prima facie call for my intervention by quashing the decision of the proper officer and remitting the matter for further consideration.

Remitter resisted

Senior counsel for the defendant, however, resisted that proposition, as I have said. In his written submissions that was on the basis that, even though reference had been made in the reasons of the proper officer to Singh (No 2), still and all the assessment that the material was not "additional relevant information" was correct. I understood that to be on the basis that, even applying the correct test, it could never be so characterised. In other words, he submitted that, if I were satisfied that the outcome would inevitably be identical, I would neither engage in the fruitless task of remitter, nor call upon a proper officer to engage in the fruitless task of re-determining the application.
I understood his oral submissions to focus more on the discretion reposed in the proper officer, and to submit that, in fact, it had been exercised adversely to the plaintiff, and exercised appropriately. Again, it was said, in those circumstances I should decline to remit the matter.
In short, it was emphasised that prerogative relief is discretionary, and one would not exercise that discretion by providing relief that was futile. Nor would one quash a decision that was correct, albeit for the wrong reasons.
Turning to my determination of this ancillary question, and dealing with the second submission first, I do not accept that the reasons for decision of the proper officer show that she purported to exercise the discretion to be found in s 62(1) of the Act. To my mind, read as a whole, they are a rejection of the application on the basis of the "first limb"; that is, the concept of "additional relevant information" to be found in s 62(1)(a) of the Act. I therefore do not believe that the decision can be "salvaged" on that basis.
Turning now to the first submission with regard to asserted inevitability of outcome, a significant legal error has been conceded to be present in the reasons of the primary decision maker. In those circumstances, I think that I should be slow indeed to refuse relief on the basis of my own assessment of what is really a question of fact.
Secondly, the test as whole, bearing in mind its three separate aspects, calls for an evaluative judgment about which minds may reasonably differ. Again, I think that I should be slow to interpose my own judgment about such questions, when statute has reposed the power of making decisions about them in the proper officer.
Thirdly, to the extent that resolution of such questions may call for a degree of expertise with regard to medical matters and the operation of the system of assessments as a whole, a proper officer of SIRA is in a better position than me to make such an assessment.
Fourthly, remitter (as opposed to a peremptory decision by me adverse to the plaintiff, leading to refusal of remitter) is, I consider, the more cautious course. After all, it is possible that, in determining a further application by the plaintiff, a proper officer may nevertheless refuse it, for reasons that are completely legally and factually correct.
For all of those reasons, a fundamental legal error having been established, I consider that the preferable course is for me to exercise my discretion to remit the matter for further consideration within the statutory regime.

Conclusion

In short, an important legal error was conceded in this matter. I am not satisfied that I should exercise my discretion not to intervene to correct that error. The matter should be remitted for further consideration by the person called upon to do so by Parliament.
Finally, the proposition in the summons of the plaintiff that the further consideration of this matter should be undertaken by a different proper officer was not the subject of contention by senior counsel for the defendant. For abundant caution, and to permit a completely fresh start to be made, I think that that is appropriate.

Costs

The joint position of the parties was that the usual order of costs following the event should be made by me.
Although the primary position of the plaintiff was conceded, a dispute remained about the ancillary question, and about the orders that should be made. The defendant having failed in that dispute, there is no reason why it should not pay the costs of the plaintiff of the proceedings before me.

Orders I make the following orders: 1. An order in the nature of certiorari setting aside the decision of a proper officer of the Medical Assessment Service of the second defendant, made on 27 February 2017, not to refer the plaintiff for further medical assessment. 2. An order in the nature of prohibition preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on that decision. 3. An order in the nature of mandamus, remitting the matter to the second defendant for re-allocation of the matter to a different proper officer for determination according to law. 4. The first defendant must pay the costs of the proceedings before me.

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: 02 February 2018

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