MEEUWISSEN v BODEN

1 October 2010 MEEUWISSEN v BODEN Judgment 1 BEAZLEY JA: I agree with Basten JA. 2 BASTEN JA: The applicant, Mr Steven Meeuwissen, was injured in a motor accident which occurred on 22 May 2000. There was a dispute about the degree of permanent impairment suffered by the applicant in the accident. The Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131. A dispute as to the degree of permanent impairment must be assessed by a medical assessor under Pt 3.4: s 132(1). 3 Under Pt 3.4 of the MAC Act, the Motor Accidents Authority of New South Wales ("the Authority") is required to establish a Motor Accidents Medical Assessment Service, which includes medical assessors. A question as to the degree of permanent impairment is referred to a medical assessor for assessment: s 60(2). 4 The result of an initial assessment in 2004 certified the applicant's impairment at only 10%. On the basis of deterioration, he later sought a fresh assessment. On 31 March 2009, a medical assessor provided a certificate identifying certain injuries suffered by the applicant in the accident and stating that the injuries did not give rise to a permanent impairment greater than 10%. The MAC Act provides for review of a medical assessment on application of a party to a medical dispute, for which purpose an application is made to an officer of the authority: s 63(1). The ground of the application must be that the assessment "was incorrect in a material respect": s 63(2). The officer is to refer the application to a panel of three medical assessors, but only if satisfied that there is "reasonable cause to suspect that the medical assessment was incorrect in a material respect": s 63(3). 5 On 23 April 2009 the applicant applied for a review. On 1 June 2009, the "Acting Proper Officer, Medical Assessment Service" determined that "whilst there may have been an error in the assessment of the claimant's elbow impairment, this error is not material to the assessment". She therefore declined to refer the application to a review panel. 6 On 24 June 2009 the applicant commenced proceedings in the Common Law Division challenging the decision of the proper officer. On 25 February 2010 the summons was dismissed by Latham J with costs. An appeal is brought from her Honour's decision. 7 No affidavit was filed in support of the assumption that the applicant has a right of appeal to this Court. It is now accepted that the judgment does not involve a matter at issue of the value of $100,000. Accordingly, leave is required and has been, belatedly, sought: Supreme Court Act 1970 (NSW), s 101(2)(r). 8 The case raises a point of some importance in relation to the operation of the MAC Act. Further, there are statements of legal principle in the judgment below which warrant correction. In the circumstances, there should be a grant of leave to appeal and an extension of time in which to bring the application. The Registrar granted an extension of time within which to file a summons seeking leave to appeal. Issue 9 The dispute in the present appeal may be reduced to a simple issue: is an assessment "incorrect in a material respect" where an impairment not taken into account could not, if taken into account, give rise in total to a degree of permanent impairment in excess of 10%? 10 The reasoning of the proper officer was as follows: "I note the applicant describes Assessor McCleod found 8% UEI [upper extremity impairment] for resection arthroplasty and that Dr Tai Tak Wan assigns 10% UEI for isolated radial head implant arthroplasty. … Taking the higher value, that is the value for implant arthroplasty, this would equate to 10% UEI. When combined with the other upper extremity impairments as determined by the Assessor, this would equate to 13% …. … 13% UEI converts to 8% WPI [whole person impairment]. When combined with the Assessor's scarring impairment of 2% WPI, which has not been disputed, this results in 10% WPI. Accordingly I am satisfied that, whilst there may have been an error in the assessment of the claimant's elbow impairment, this error is not material to the assessment. Accordingly, as to this application, I am not satisfied that there is reasonable cause to suspect that the assessment is incorrect in a material respect." 11 The conclusion of the medical assessor was that the total degree of impairment of the injuries he considered was 4%; a possible change from 4% to 10% is clearly significant. The question, accordingly, is whether it was necessary for consideration of the omitted impairment to be capable of reaching a figure in excess of 10% for the assessment to have been incorrect in a material respect. Relevant legal principles 12 The primary judge purported to approach the matter by paraphrasing what Howie J had said of the correct approach to "an appeal" under s 69 of the Supreme Court Act in McKirdy v McCosker [2002] NSWSC 197; 127 A Crim R 217. Her Honour quoted a passage in which Howie J had identified a need to find jurisdictional error: at [7]. She held that there had been "no jurisdictional error": at [26]. 13 McKirdy was concerned with a challenge to a procedural decision given under s 48E of the Justices Act 1902 (NSW) (as then in force) in relation to a committal proceeding. It involved a challenge to an interlocutory procedural step involving the exercise of a discretionary power. It is not necessary to inquire whether jurisdictional error was in fact necessary for review under those circumstances: it is sufficient to note that such statements of principle depend on the statutory context in which review is sought. The statutory context in the present case required attention to the terms of s 69 of the Supreme Court Act and any restrictive provision in the MAC Act. 14 Section 69 permits review by the Court, in its supervisory jurisdiction, in respect of the grant of relief in the nature of the writ of certiorari. The writs no longer issue, but relief may be granted setting aside a decision either on the ground of jurisdictional error or on the ground of an error of law appearing on the face of the record: s 69(3). The phrase "the face of the record" is defined to include "the reasons expressed by the court or tribunal for its ultimate determination": s 69(4). It was not submitted in the present case that the term "tribunal" did not include administrative decision-makers, such as the proper officer of the Motor Accidents Authority, exercising power under the MAC Act, s 63. Accordingly, it would be sufficient if an error of law appeared from the reasons given by the proper officer. 15 In fact, it appears that that was the approach adopted by the primary judge, who stated that the issue raised by the proceedings was whether "the MAS applied the wrong test in making the determination it did": at [8]. Reference to McKirdy was unnecessary and inapt. If the proper officer misconstrued her task under s 63, her decision should be set aside and the application remitted for further determination, whether or not the error of law was properly classified as jurisdictional. Further, the respondent accepted that the putative error, if made good, being one going to the scope and nature of the powers of the proper officer, would be a jurisdictional error in any event.

MAC Act, s 63 16 The proper construction of s 63 requires consideration of various aspects of the provision, which reads as follows: " 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. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned." 17 In relation to the phrase "in a material respect", the primary judge referred to remarks of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; 34 FCR 348. The question in that case was whether the respondent had been properly found to be an illegal entrant, a result which would have followed from presenting a passenger card to Customs which was "false in a material particular": see Migration Act 1958 (Cth), ss 14 and 20 (as then in force). The Court found that the term "material" required "no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential": at 352. Materiality was to be assessed, taking into account the purpose for which the statement was made. The ordinary meaning of the term "material" in such a context may be accepted; the application of the meaning in a context far removed from the present is, however, of little assistance. 18 The phrase "in a material respect" is imprecise. It undoubtedly can mean that "the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different": Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353 (Mason CJ). On the other hand, it can refer to the process by which the outcome was achieved. The latter approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome. There are various considerations in s 63 which suggest that the latter view is to be preferred. 19 First, what must be incorrect in a material respect is "the medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s 63(1). A "medical dispute" is defined to mean "a disagreement or issue to which this Part applies": s 57. The Part applies to a disagreement about one of the matters (referred to as "medical assessment matters") set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error. 20 Secondly, and consistently with the first reason, the phrase "in a material respect" is less precise than "capable of having a material effect on the outcome of the previous assessment", being the language of s 62(1A). While it is true that this subsection was added with effect from 1 October 2008, it is significant that the legislature declined to adopt the same language as existed in s 63(3). Further, although the same amending Act varied s 63, it did not vary s 63(3): see Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW). 21 Thirdly, the power conferred on the proper authority is not discretionary, once the requisite state of satisfaction is achieved. Thus, once satisfied as to the relevant matter, the proper officer "is to" arrange for the application to be referred: s 63(3). 22 Fourthly, the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that "there is reasonable cause to suspect" that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error. 23 Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred. 24 Finally, the role of the review panel is not limited to a review of "that aspect of the assessment" affected by possible error. Rather, the panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured, so that a proper assessment has been made of the whole of the matters in dispute. Application of principles 25 On the approach to statutory construction adopted above, the proper officer clearly misapprehended the scope of the power. She accepted that the impairment which had been ignored was capable of giving rise to a level of permanent impairment greater than the impairments which had been taken into account (potentially increasing the level of impairment from 4% to 10%). Such an omission cannot be dismissed as trivial, insignificant or immaterial. Accordingly, the proper officer was wrong to conclude, on the approach she adopted, that the assessment was not "incorrect in a material respect". The error arose from misconstruction of s 63. Existing state of case-law 26 The respondent contended that the approach of the primary judge was in conformity with three other decisions of judges in the Common Law Division. On careful consideration, however, that is not so in relation to the first case and only so in relation to the other cases through reliance on an impermissible process of statutory construction. 27 The earliest of the three cases was Pratap v Motor Accidents Authority of NSW [2009] NSWSC 1325. In that case, RA Hulme J stated at [57]: "In my view the task of the proper officer under s 63(3) is one of considering the matters raised in the application, that is, the grounds upon which it is contended that the assessment was incorrect in a material respect, having regard to all matters relevant to those contentions, and to consider whether there exist facts sufficient to induce in the mind of a reasonable person suspicion (in the sense of any conjecture, surmise, apprehension or slight opinion) that the assessment was incorrect in a material respect. Error in a 'material respect' involves an error that would or could have a bearing upon the conclusions reached by the assessor." 28 His Honour concluded at [63]: "I can discern no error in the approach taken by the proper officer in relation to this or any of the other issues raised. What she did was to look at the reasons given by the medical assessor, look at what the guidelines said as to what the medical assessor was required to do and determine by reference to them whether there was any possibility of error. She determined that there was not. This was not to engage in the purported exercise of 'clinical skill and judgment'." 29 His Honour did not address the question which now arises, namely whether for the error to be material, it must be capable of producing a differently worded certificate, in the event that something which was not considered had been considered. With one qualification, his Honour's statement of principle is unexceptionable. The qualification concerns the stated obligation of the proper officer to have regard to "all matters relevant to those contentions" (at [57]) and "look at what the guidelines said as to what the medical assessor was required to do" (at [63]). In its terms, s 63(3) requires the proper officer to be satisfied of the matter identified "having regard to the particulars set out in the application". The language used in the judgment may be contentious. First, there may well be a live issue as to what this phrase in s 63(3) means. The ground of the application must be that the assessment "was incorrect in a material respect"; a particular of such a ground might be expected to identify the relevant respect. Alternatively, the term "particulars" may have a broader meaning. Secondly, there may be an issue as to what matters, beyond the particulars set out in the application, if any, the proper officer may take into account. The broader the scope of permissible considerations, the greater the danger that the proper officer will be led into opinions going beyond the proper role as a gatekeeper to the review panel. 30 The second case relied upon was Crnobrnja v Motor Accidents Authority of New South Wales [2010] NSWSC 633 (RS Hulme J). At [43], his Honour noted that the error complained of was a blatant factual error and was "a matter of considerable concern". He continued: "However, once regard is had to the definition of 'material' in clause 10.11 of the MAA Medical Assessment Guidelines, in the circumstances of this case it is impossible to conclude that the [proper officer's] conclusion that the matter was not material was not open to her." 31 This remark was obiter, his Honour setting the decision aside on other grounds. More importantly, the reference to cl 10.11 (which was set out earlier in the judgment) was in similar terms to cl 16.13, which the Court was told was relevant to the present case, except that it stated that "material" "means", rather than "includes". On either view, the clause can neither determine the meaning of the statutory provision, nor does it provide an accurate construction of the statute, for reasons set out below. The respondent's reliance upon the language of the Guidelines must be rejected. 32 The third case relied upon by the respondent was the decision of Smart AJ in Sanhueza v AAMI Ltd [2010] NSWSC 774. In the passages relied upon, at [19], his Honour referred to the task of the proper officer as "having regard to any relevant information submitted, including 'the review application, any reply to it and the particulars and any supporting information set out in those documents' (cl 16.12.1) and 'the objects of the Act and the objects of MAS [Medical Assessment Services]' (cl 16.12.3). The references are to clauses in the Medical Assessment Guidelines issued pursuant to s 44(1)(d) of the MAC Act. The language in quotation and the phrase "having regard to any relevant information submitted" is to be found in cl 16.12 of the Guidelines. Whether that provision correctly reflects the requirements of s 63(3) may need to be determined in an appropriate case. While the Authority is empowered to issue guidelines with respect to "the procedures for the referral of … review of assessments", those guidelines should not be inconsistent with provisions in the MAC Act. 33 Significantly for present purposes, cl 16.13 provides: "For the purposes of section 63 the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: … 16.13.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice versa." 34 That is not the language of s 63(3), nor is it consistent with the approach adopted in these reasons. It constitutes a construction of a legislative term in language not adopted in the statute. It is an erroneous construction. Conclusions 35 The primary judge dismissed the summons because her Honour adopted the same approach to s 63 as did the proper officer. For the reasons set out above, that approach was legally erroneous. 36 It follows that the appeal should be allowed and the judgment of the Court below set aside. The appropriate relief which should be granted is that which should have been granted by the primary judge. 37 The applicant asserted that he was entitled to a declaration that (a) the assessment was incorrect in a material respect and (b) there was reasonable cause to suspect that it was. However, the first declaration is not relevant: no one was required to determine such a fact. The second declaration, involves a matter which the statute vests for determination in the proper officer. That determination not having been made according to law, the decision not to refer the application to a review panel should be set aside. The power to achieve a relevant state of satisfaction and to make the appropriate referral is not vested in this Court. The matter should be referred back to the Authority for reconsideration by the proper officer, according to law. 38 I would propose the following orders:

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