(7) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to a matter referred to in subsection (2) that is certified in the certificate."
17 In his Second Reading Speech, the Minister said:
"Part 3.4 provides an accessible means of getting early, quick and independent decisions on treatment, rehabilitation and care outside of the court system. All disputes over the treatment, rehabilitation and care an injured person requires, the degree of permanent impairment an injured person has or whether an injury has stabilised will be referred to the MAA, which will refer the disputes to a relevant medical expert from a list maintained by the MAA. Further medical assessments will be allowed if a person's condition deteriorates, and there is provision for review of an assessment by three medical experts.
Medical assessment decisions on the treatment, rehabilitation and care of injured persons pending the finalisation of their claim, and decisions on degree of permanent impairment and whether an injury has stabilised, are binding. These reforms permit early, quick, objective decisions on medical issues to be made outside of the court system. The majority of motor accident matters do not involve difficult legal issues and are essentially a determination of an amount of compensation. While very few matters end up being decided in a court, over half of all motor accident claims involve claimants commencing court proceedings. Claims are prepared on an adversarial basis with attendant high level of legal costs.
….
The main change to damages is to introduce an objective assessment of impairment as a gateway for non-economic loss. Non-economic loss is essentially compensation for pain and suffering and loss of enjoyment of life and is additional to compensation for actual monetary loss or costs. Non-economic loss represents a significant component of total compensation payments. The Motor Accidents Act 1988 currently has a number of gateways to obtaining non-economic loss damages but these have been eroded over time.
Under the provisions of the bill no damages will be paid for non-economic loss unless the person is assessed as having more than 10 per cent permanent impairment. An objective method for determining the degree of permanent impairment will be used, such as the American Medical Association's Guides to Permanent Impairment. These guidelines are currently used under the Victorian scheme, although I would point out that under the more severe benefit restrictions which apply in Victoria access to common law damages for pain and suffering requires that the person be 30 per cent or more impaired.
Disputes over whether the 10 per cent permanent impairment gateway is reached will be resolved using the medical assessment process outlined in part 3.4. …."
18 Later, before the commencement of s 61(6) of the Act, the Act was amended, by the Motor Accident Compensation Amendment (Medical Assessments) Act 2000. The Explanatory Memorandum to this Act said:
"Overview of Bill
The object of this Bill is to amend the Motor Accidents Compensation Act 1999 so as to make it clear that a court does not have an unfettered power to reject a certificate given by a medical assessor under the Act as to whether the degree of permanent impairment of an injured person is greater than 10% and substitute its own determination as to the degree of permanent impairment of the injured person. A court will be able to substitute its own determination only if there has been a denial of procedural fairness in the issue of the certificate and the court is satisfied that admission of the certificate as to that matter would cause a substantial injustice to a party to the proceedings.
At present, the Motor Accidents Compensation Act 1999 provides that certain disputes between a claimant and an insurer in respect of a motor accident claim may be referred to a medical assessor for assessment. The medical assessor is to give a certificate as to the matters referred for assessment. Such a certificate is conclusive evidence in any court proceedings as to certain matters, including any assessment by the medical assessor as to whether the degree of permanent impairment of the injured person is greater than 10%. No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Section 61 (4) of the Act provides that a court may reject the certificate on the grounds of a denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only is the court is satisfied that the admission of the certificate would cause substantial injustice to that party. In such a case, the court must adjourn the proceedings and refer the matter again for assessment under Part 3.4 of the Act.
Section 61 (6) of the Act, which is uncommenced, further provides that a court may reject a certificate as to the degree of permanent impairment of an injured person and either refer the matter again for assessment under Part 3.4 of the Act or substitute a determination of the court as to the degree of permanent impairment of the injured person.
This Bill clarifies the powers of a court with respect to certificates given by medical assessors. The amendments set out in the Bill provide that:
(a) a court may reject a certificate as to all or any of the matters that are certified in the certificate, but only on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, and only if the court is satisfied that the admission of the certificate as to the matter concerned would cause substantial injustice to that party, and
(b) if a certificate as to whether or not the degree of permanent impairment of an injured person is greater than 10% is rejected, the court may substitute its own determination as to that matter or refer the matter again for assessment by a medical assessor or assessors, and
(c) if a certificate as to any other matter (such as a certificate as to whether the injury has stabilised) is rejected, the court must refer that matter again for assessment by a medical assessor or assessors, unless the matter is a matter in respect of which a certificate is not conclusive evidence, and
(d) the circumstances set out in paragraph (b) are the only circumstances in which the court may substitute its own determination as to a matter in respect of which a certificate is conclusive evidence."
19 On the occasion of the Second Reading Speech concerning this Bill, the Minister referred to the course of the passage through the Parliament of the earlier Bill, that became the Act, and continued:
"I remind honourable members that section 61 was a key component of the new scheme and entirely in keeping with the intent of removing the adversarial and litigious approach to medical decisions. In its place we have provided for decisions about treatment and impairment to be determined by way of independent medical assessment. This, of course, recognised that the system in which these decisions were made by judges following the presentation of medico-legal evidence was costly, time consuming and did not necessarily ensure that the decision was made on proper medical grounds. Litigation and the duelling doctor phenomenon was widely recognised as a drain upon the finite resources of the scheme, ultimately diminishing the funds available for return to injured people as compensation for the injuries they suffer.
The reason for not commencing subsection (6) has been the subject of considerable discussion. The subsection was not proclaimed because it was capable of, and indeed was, being interpreted in such a way as to thwart the original intention of the Act and the amendment itself. For example, the Law Society's journal Caveat suggested the subsection as worded would allow the court an unfettered right to reject a medical certificate and to substitute the court's own assessment. Some members of the legal profession were clearly gearing up to utilise the subsection to sidestep the new medical assessment process. In a letter I wrote to the Hon. Helen Sham-Ho in September explaining to her the reasons for not commencing the subsection I said:
'I believe you made it very clear when moving the amendment that the ability of the court to substitute its own determination only arises where the court has set aside the assessment on grounds of procedural unfairness. However, the legal profession is advancing a different interpretation to the section. I am forwarding a copy of the recent edition of the Caveat produced by the Law Society of New South Wales, which claims that this amendment was sponsored by the Law Society's intervention, and which provides a different view. I have highlighted in the text the suggestion that the section gives an unfettered right to reject a medical certificate and substitute the court's own assessment.'
I went on to say:
'While it is perhaps not surprising, it is disappointing that the immediate reaction of the Law Society to these reforms is to seek ways of avoiding the new arrangements and thereby continue to promote litigious solutions to claims.'
You will appreciate that I am concerned not to allow this to occur and accordingly, I am proposing not to commence section 61 (6) with the other provisions. Instead, I will bring forward an amendment to the section to make it absolutely clear that the right of the court to make a substituted assessment is limited to circumstances where the original assessment is set aside on grounds of procedural unfairness.
In the course of the discussion on the operation of section 61 (6) numerous advices as to the meaning of the subsection were provided by a variety of legal professionals. It appeared that the only consensus reached was that the court would have to be relied on for interpretation, as the meaning of the subsection was not immediately clear. This was confirmed by advice I received from the Crown Solicitor. I, therefore, took the view that it was inappropriate to commence a section of any Act which was open to such misinterpretation. The matter needed to be resolved in Parliament. Accordingly, Parliamentary Counsel was asked to redraft section 61 (6) to ensure that it was clear and unambiguous. In redrafting Parliamentary Counsel has found it necessary to slightly reword all of section 61 so as to integrate subsection (6). The meaning of the section has not been altered."