Nelkovska v Motor Accidents Authority of New South Wales

Judicial review 9The plaintiff relies on s 69 of the Supreme Court Act which provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari. 10The supervisory jurisdiction of this Court under s 69 of the Supreme Court Act can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer: Chase Oyster Bar Pty Ltd v Hamo Industries 2010 NSWCA 190 at [3]. 11In relation to a judicial review of an assessment by a claims assessor under the MAC Act, Hoeben J (as he then was) stated recently in Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157: "[27] It should also be noted that this is not an appeal by way of rehearing, nor is it an appeal on the merits. It is an application based on administrative law principles which seeks to establish either lack of jurisdiction or error of law on the face of the record." 12In Martin v Kelly [2008] NSWSC 577 Johnson J discussed the confines of judicial review and said: "[17] Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176." 13In Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 the High Court discussed jurisdictional error in Australia at [71] - [77]. 14The jurisdictional errors alleged by the plaintiff are not articulated in the amended summons but the plaintiff's submissions cover two main issues. They are, firstly, whether the Medical Assessor applied the wrong test on causation; and secondly, whether the plaintiff was denied procedural fairness. 15In Craig v State of South Australia (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ set out an inclusive definition of jurisdictional error: "...If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 16Therefore, if the Medical Assessor has asked himself the "wrong question", he has fallen into jurisdictional error. Furthermore, while the application of the wrong test as to causation might be more properly described as an error on the face of the record, there is no necessary dichotomy between jurisdictional error and error of law on the face of the record, and the same error may satisfy both descriptions: Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 at [40]. 17In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 Hayne J characterised a failure to ensure procedural fairness as a jurisdictional error, at [169]: "...it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended." 18See also Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208, in which Basten JA said at [76] - [77]: "Because the term 'jurisdiction' is of uncertain provenance, the phrase "jurisdictional error" fails helpfully to define potential causes of invalidity. The term suggests that a court has done something it is not entitled to do, or has refused to consider doing something it is entitled to do ... Jurisdictional error ... includes agenda-setting mistakes that involve a failure to formulate correctly the issue to be determined and procedural mistakes, such as denying the unsuccessful party an opportunity to be heard ..."

The relevant statutory provisions of the MAC Act 19Part 3.4 of the MAC Act is entitled Medical Assessment. Section 57 defines "medical dispute" to mean a disagreement or issue to which Part 3.4 applies. 20Section 58(1)(a) and (b) relevantly read: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident..." 21Section 42 defines treatment to include: "(d) the provision of attendant care services..." 22Section 3 defines "attendant care services" as: "services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services." 23Section 60 provides that the MAA is to arrange for the dispute to be referred to one or more medical assessors and s 61 provides for the medical assessor to give a certificate as to the matters referred for assessment. 24Section 63 allows for a review of a medical assessment by a review panel. Such an application for review may only be made on the grounds that the assessment was "incorrect in a material respect" (s 63(2)). Section 63 provides for the referral of a matter for further medical assessment, on the basis, amongst others, that there is "additional relevant information about the injury".

The first application and determination of the Medical Assessor 25On 25 August 2010, at the request of the MAA the plaintiff attended the Medical Assessment Service for assessment. The list of treatment disputes to be assessed by the Medical Assessor were:

1. Whether 10 hours per week of gratuitous attendant care services from 6 March 2008 until the date of assessment is causally related to the injury sustained in the subject accident.
2. Whether 6 hours per week of gratuitous domestic assistance from the date of assessment until the claimant's life expectancy, being, the age of 88 years, is causally related to the injury sustained in the subject accident.
3. Whether 10 hours per week of gratuitous attendant care services from 6 March 2008 until the date of assessment is reasonable and necessary in relation to the injury sustained in the subject accident.
4. Whether 6 hours per week of gratuitous domestic assistance from the date of assessment until the claimant's life expectancy, being the age of 88 years, is reasonable and necessary in relation to the injury sustained in the subject accident.

The determination of the Medical Assessor 26On 3 September 2010 the Medical Assessor, Dr Kenna, issued a Certificate together with Statement of Reasons. In arriving at his decision the Medical Assessor elicited a medical history and details of the motor accident from the plaintiff. He conducted a medical examination and recorded his findings on the clinical examination. So far as the plaintiff's history is concerned, she acknowledged to Dr Kenna that she had been diagnosed with multiple sclerosis in 1999 (p4). Dr Kenna commented that this was not apparent in the documentation that had been provided to him. She told him that she had had acute episodes and when she does have an acute episode her condition is managed by a specialist, Dr Sharpe. At the time of the assessment she said that she was in remission. 27Under the heading "Findings on Clinical Examination", the Medical Assessor noted that in relation to the plaintiff's cervical spine, there was "marked lowering of pain threshold with reaction even on light palpitation", "there was tenderness involving many of the bony points and she presented with a classic fibromyalgic-type presentation" (p7). 28Dr Kenna concluded that the claimant (p8): "had a normal musculoskeletal and neurological examination and thus she had no impairment based upon anatomic aspects of impairment assessed by examination and as noted she present with chronic diffuse pain. She therefore presented with the classic features of fibromyalagia." 29Dr Kenna enclosed an article entitled "Fibromyalgia" by Dennis M Lox, MD. Under the heading "Further comments", he said: "Enclosed is an article relevant to the claimant's clinical condition and presentation. This article I believe is highly relevant and encapsulates the overall clinical presentation." 30The Medical Assessor then made his determination as follows (p13): "Jasmina Nelkovska· is a 32-year-old woman, married with three children, who sustained soft tissue injuries In a motor vehicle accident on 6th March 2008 as a result of which now there is a request for ongoing domestic assistance. The request has been one of essentially 10 hours per week of gratuitous attendance from the time of the accident in March 2008 until the time of this assessment and subsequently going forward for the next 56 years there is a request for 6 hours per week of gratuitous funding of domestic assistance until she is 88 years of age. My view is that the claimant's overall current condition is not consistent with the alleged injuries and disabilities. The diagnosis is elusive with a label of chronic pain, but she presents very much as a fibromyalgic-type patient and of course this is on a background of multiple sclerosis. I am not convinced that her current condition and request for domestic assistance is causally related to the subject accident. I base this on my assessment on 25th August 2010, the findings from that assessment, and the substantive documentation enclosed. I accept that the prognosis is guarded in view of the time that has elapsed and have noted her current symptoms and lack of objective clinical signs. This also relates to investigations. I consider frankly that there are behavioural signs on clinical assessment and there is little prospect for a positive outcome from an active treatment plan. I am therefore of the view that the motor vehicle accident is not materially contributing to the claimant's level of incapacity and is not causally related to the subject incident; that is, the request for domestic assistance I believe is not directly causally related to the subject accident. I therefore consider the request for domestic assistance on this basis is neither reasonable nor necessary." [my emphasis added] 31On 3 September 2010, the Medical Assessor issued a certificate in respect of the treatment dispute. The certificate determined, firstly, that the claimed past and future gratuitous domestic assistance or attendant care services "do not relate to the injuries caused by the motor accident". Consequently, it certified those services and assistance "are not reasonable and necessary in the circumstances". 32The plaintiff seeks judicial review of this determination on the basis that, firstly, the Medical Assessor applied the wrong test on causation; secondly, the plaintiff was denied procedural fairness. I shall deal with each issue in turn.

Causation 33It is necessary to refer to the Permanent Impairment Guidelines (1 October 2007) issued by the MAA ("the guidelines") on the topic of causation. These guidelines may be characterised as delegated legislation under s 44(1)(c) of the MAC Act: Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881 at [83]. 34Clauses 1.7, 1.8, 1.9, 1.33, 1.34, 1.35 and 1.36 of the guidelines read: "Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: "Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination". This therefore involves a medical decision and a non-medical informed judgement. 1.9 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 a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes. ... Pre-existing impairment 1.33 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored. 1.34 The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10, "For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments". Refer to 7.18 for the approach to a pre-existing psychiatric impairment. 1.35 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor vehicle accident. Subsequent injuries 1.36 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored." [emphasis in original] 35In Ackling v QBE, Johnson J stated at [86] that in undertaking the task of assessing whether an injury was caused by the relevant accident a Medical Assessor (and a Review Panel) will derive practical assistance from clauses 1.7 to 1.9 of the guidelines. 36Section 5D of the Civil Liability Act 2002 also applies. It relevantly reads: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." [emphasis in original] 37In a recent decision, Owen v Motor Accidents Authority of NSW, Campbell J set out clauses 1.7 to 1.9 of the guidelines and had this to say about causation at [27] and [50]: "27 Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p. 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2)). ... 50 The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... 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. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles." 38The plaintiff submitted that the Medical Assessor's Statement of Reasons demonstrates the misapplication, and the misapprehension, of the correct legal principles to be applied in determining causation. The plaintiff said that the emphasised words in the passage above, extracted from the Assessor's Reasons, demonstrate that his approach to the notion of material contribution is premised on a direct causal requirement and that the notion of material contribution does not operate in that manner. 39The reasons for a decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 272. In that case Brennan CJ, Toohey, McHugh and Gummow JJ continued at 272: "... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. ... The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 40The plaintiff submitted that, even applying the approach discussed by the High Court in Minister for Immigration and Ethic Affairs v Wu Shan Lian concerning the appropriate approach to the reading of an administrative decision maker's reasons, the reasons in the extracted passage demonstrate a material error in the test of legal causation applied. As such, the plaintiff submitted that there was a relevant jurisdictional error. 41The second defendant submitted that the expert medical practitioner in the present case was specifically appointed to administer Part 3.4 of the MAC Act and that throughout the guidelines there is an emphasis on the use of clinical judgment and non-medical opinion in making an assessment. The second defendant submitted that the Medical Assessor was well aware of his obligations under the guidelines and had applied the causation tests described there. 42The second defendant submitted that medical assessors are not partisan. They are properly held to be "independent arbiters of medical disputes" and "independent decision-makers" who are "independent of all parties to a medical dispute". To support this proposition senior counsel for the second defendant relied upon Goodman v The Motor Accidents Authority of NSW [2009] NSWSC 875; (2009) 53 MVR 420 at [80] - [82] (per Hoeben J). 43The second defendant further submitted that medical assessments and reviews are not adversarial proceedings, they are inquisitorial processes under the MAC Act and the relevant guidelines: Goodman v The Motor Accidents Authority of NSW at [79]. 44Finally, the second defendant submitted that as to causation, the Medical Assessor reviewed clause 1.9 of the guidelines in making his decision and that what occurred was a "medical assessment by expert medical practitioners". Determining the issue of causation was part and parcel of that duty in the discharge of the Medical Assessor's statutory function under s 61 of the MAC Act: Ackling v QBE at [77] and [79]. 45On the issue of causation, the Medical Assessor stated (p13): "I am therefore of the view that the motor vehicle accident is not materially contributing to the claimant's level of incapacity and is not causally related to the subject incident; that is, the request for domestic assistance I believe is not directly causally related to the subject accident." 46The Medical Assessor has referred to two concepts: firstly, he was of the view that the motor vehicle was not materially contributing to the level of incapacity and was not causally related to the subject accident and secondly, he said that the request for domestic assistance was not directly causally related to the subject accident. 47I accept that determinations of causation under the MAC Act should not be rendered "unduly complex by legal terminology": Ackling v QBE at [86]. However, the Medical Assessor has misapplied the test as to causation. The test, found in the general law, the guidelines and the Civil Liability Act, is whether the injury was caused or materially contributed to by the motor accident. 48It appears that the Medical Assessor concluded and determined that the request for domestic assistance was not directly caused by the motor accident. In my view the Medical Assessor has sought to apply a higher test of "directly causally related" and has therefore fallen into jurisdictional error by asking himself the wrong question. Furthermore, the Medical Assessor has sought to determine whether the request for domestic assistance was causally linked to the subject accident, rather than determining whether the plaintiff's injury was caused or materially contributed to by the motor accident, and then assessing whether the proposed assistance relates to that injury, and is necessary and reasonable. The confusion may have arisen in part because questions 1 and 2 are badly framed in that they ask whether the proposed care services are "causally related" to the injury. As there is jurisdictional error this Court should intervene to set aside his determination.

Effect of finding jurisdictional error 49I have found that the Medical Assessor fell into jurisdictional error when he misapplied the test as to causation and that the first medical assessment should be set aside. In Ruddock v Taylor [2005] HCA 47; (2005) 222 CLR 612 at [160], Gleeson CJ, Gummow, Hayne and Heydon JJ said at [160]: "Where a writ of certiorari issues to quash an administrative decision, it operates with retrospective effect. That is, it operates from the date of the decision itself. The result of the writ is that the impugned decision has no legal effect. In the eye of the law the decision is void ab initio." 50Spigelman CJ (with whom Beazley JA agreed) approved of this analysis in Theiss Pty Ltd v Industrial Court (NSW) 2010 NSWCA 252 at [77].

Denial of procedural fairness 51The Medical Assessor, in his Statement of Reasons, attached an extract of an article entitled "Fibromyalgia". Counsel for the plaintiff submitted that the article was an "opinion piece" as opposed to a standard medical text and that neither the plaintiff nor the second defendant had given that article to the third defendant. Counsel for the plaintiff submitted that this article was material to the Medical Assessor's determination and that it had not been provided to the parties. There had therefore been a failure to ensure procedural fairness. 52According to senior counsel for the second defendant, the article was included so as to inform the claimant about her condition and there was no error of law. 53In the hearing in this Court, it was common ground between the parties that their medical experts had not referred to the plaintiff as suffering from fibromyalgia. However, the second defendant points out that reference was made in the medical practitioners' reports of experiencing chronic pain. These reports were before the Medical Assessor. 54Given my determination in relation to the first ground for judicial review, it is not necessary for me to determine this issue. However, it is not apparent to this Court that the Medical Assessor, by attaching the article, denied the plaintiff procedural fairness. Whether the plaintiff was denied procedural fairness would depend on whether the condition "fibromyalgia" is a somewhat different condition to that which had been referred to in the medical reports. It is important to keep in mind that as this Court does not possess the clinical skill and expertise of a medically qualified assessor, it should only intervene if there are clear cases of jurisdictional error.

Conclusion 55For the reasons given earlier in my judgment, I set aside the certificate issued by the Medical Assessor dated 3 September 2010. The effect of my finding of jurisdictional error is that the Medical Assessor's assessment contained in the Certificate and Reasons is void ab initio. Therefore, the dismissal of the plaintiff's application for review (on 2 February 2011) and the dismissal of her application for further assessment of the dispute (on 29 July 2011) cannot stand, on the basis that the original decision was void and could not support the later determinations. 56The plaintiff sought an order that the matter be remitted to the MAA for the treatment dispute to be determined by a person other than the third defendant. The second defendant submitted that it would be proper for the matter to be remitted to the same Medical Assessor, since any error found would be of a technical or procedural nature only. As there has been no allegation of bias or wrongdoing by the Medical Assessor, it is not a matter upon which the Court should express a view. Therefore it is appropriate to remit this matter to the MAA for referral to a Medical Assessor as the MAA sees fit. 57Costs are discretionary. Costs usually follow the event. The second defendant is to pay the plaintiff's costs as agreed or assessed.

Orders (1)Declare that the decision of the Medical Assessor in matter number 2010/01/1477 issued on 3 September 2010 is vitiated by error of law. (2)An order in the nature of certiorari removing into the Court the decision of the Medical Assessor issued on 3 September 2010 in matter number 2010/01/1477 and quashing that decision. (3)An order that matter number 2010/01/1477 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. (4)The second defendant is to pay the plaintiff's costs 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. Decision last updated: 27 July 2012