NGUYEN v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & ANOR

Supreme Court of NSW|2011-01-31|Before: Hall J

Judgment 1The plaintiff commenced these proceedings by way of summons filed on 9 September 2010 in which she claimed declaratory and other relief. In particular, the following orders were sought:- "1. A declaration that the Certificate of Determination of Assessment issued on 23 April 2010 in Matter No 2010/02/0365 is vitiated by error of law. 2. A declaration that the decision of the Proper Officer of the Motor Accidents Authority of NSW made on 19 July 2010 on Matter No 2010/02/0365 is vitiated by error of law." 2The first defendant to the proceedings was the Motor Accidents Authority of New South Wales ( "the Authority" ). The second defendant is Zurich Australian Insurance Limited ( "Zurich" ), the third party insurer of the relevant vehicle. 3Further orders are sought in the nature of certiorari quashing the decision made on 19 July 2010 and an order that matter (number 2010/02/0365) be remitted to the Authority to be determined in accordance with law. 4In support of the summons, the plaintiff relief upon the affidavit of Christopher Gregory Sheppard, solicitor, sworn 8 September 2010.

Factual matters 5The plaintiff was injured in a motor vehicle accident on 26 March 2007 as a consequence of which she sustained injury. 6On 9 February 2010, an application for an Assessment of a Permanent Impairment Dispute by the Medical Assessment Service was filed with the Authority. 7The Authority appointed Dr Nigel Menogue for the purpose of assessing the application. The assessment of the plaintiff by Dr Menogue occurred on 23 April 2010. 8Annexed to Mr Sheppard's affidavit and marked "A" was a copy of Dr Menogue's Certificate issued under Part 3.4 of the Motor Accidents Compensation Act 1999 ( "the Act" ). Dr Menogue's Certificate was entitled "Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%" . 9The certificate stated that the plaintiff suffered a soft tissue injury to the cervical spine and that this gave rise to a permanent impairment which, in total, was not greater than 10%. 10Details of the assessment were set out in the certificate which was comprised of a number of paragraphs under the heading "Reasons" . Dr Menogue noted that Ms Nguyen denied a past history of musculoskeletal injury to her neck, spine, upper and lower limbs. 11It was noted that she was injured when the driver of a vehicle and was stationary waiting to turn right when her vehicle was struck in the rear by another vehicle. 12It is also recorded that she saw a general practitioner the next day. Dr Menogue quoted from the GP's notes dated 27 March 2007:- "Had MVA - restrained - hit from rear - jolted neck. On examination neck felt sore. No weakness. No pins and needles." 13Dr Menogue noted that Ms Nguyen was diagnosed as having a whiplash injury and was prescribed Brufen and "interferential therapy" . 14On review on 29 March 2007, it was noted that Ms Nguyen continued to have a painful neck which was aggravated by turning her head from side to side. She had associated headaches. There was noted to be no other limb numbness or weakness. 15It was further noted that at about this time, Ms Nguyen left for a trip to New Zealand. She developed increasing headaches and vomiting whilst away and attended a medical centre. She was there seen by Dr Heather on 10 April 2007. 16On 13 April 2007, it was noted that Ms Nguyen presented to Warrawong Medical Centre with ongoing neck pain. There were no upper limb symptoms recorded but on examination tenderness was noted at the C4 to C6 region. 17X-rays were ordered on 29 March 2007 of the cervical spine. Slight narrowing at the C5/6 level was noted. 18Dr Menogue set out the subsequent history of treatment of Ms Nguyen throughout 2007 after which he noted (p.5):- "The above reports provide contemporaneous evidence in the immediate post-accident period (four months) of ongoing neck discomfort resultant from the subject accident of 26 March 2007 and no reference whatsoever to any specific and isolated injury either shoulder." 19Dr Menogue, however, did note that an ultrasound and x-ray of the right shoulder was performed on 18 July 2007 and that this was the first reference to any right shoulder symptoms. The X-ray was reported as unremarkable and the ultrasound showed bursal thickening and bunching on abduction but no evidence of rotator cuff tear. 20Dr Menogue further noted that Ms Nguyen was referred to neurosurgical assessment by Dr Al-Khawaja who saw her on 22 June 2009 and diagnosed C5/6 disc herniation based on an MRI performed on 16 June 2009. 21Although Dr Al-Khawaja recommended surgical intervention, Ms Nguyen declined to have it. 22In the certificate under the heading "conclusions" , Dr Menogue set out his diagnosis, conclusions and final determination. He noted that, in the accident, Ms Nguyen sustained a soft tissue injury to the cervical spine resulting in a spread of discomfort to the left shoulder. She presented with right shoulder in July 2007(four months post-injury). 23In the period 26 March 2007 to 18 July 2007, the only reference, Dr Menogue noted, to either shoulder was contained in the Wollongong Hospital notes where reference was made to "neck pain passing to left shoulder" . 24A form containing Personal Details Section completed by Ms Nguyen and signed on 11 July 2007 made no reference to any right or left shoulder injury. It only referred to the neck. 25In his conclusions, Dr Menogue stated (p.10):- "I am satisfied there is no contemporaneous evidence created by her immediate post-accident health workers in the four months following the subject accident which supports causation of an injury to either shoulder due to the subject accident. There is also no evidence of disc herniation in the imaging that has been performed between March 2007 and, in particular, June 2009." (emphasis added) 26Dr Menogue a little later stated:- "Therefore, there is no definitive contemporaneous evidence supporting disc protrusion in the cervical spine at the C5/6 level. In summary, therefore, her diagnosis is soft tissue injury to the neck resulting in a musculoligamentous strain to the cervical region. There is no evidence of primary and isolated injury to either shoulder and there is no evidence of disc prolapse in the cervical spine." (emphasis added) 27Dr Menogue stated that Ms Nguyen's injuries to the cervical spine were permanent. He assessed the total degree of permanent impairment of the cervico-thoracic spine as 5%. 28Dr Menogue also stated (p.12)- "The left and right shoulder symptoms are somatic in nature and the significant restricted range of movement involving the right shoulder noted today is directly related to her cervical injury . There is no evidence whatsoever supporting causation between the subject accident and any primary and isolated injury to either the right or left shoulder in the subject motor vehicle accident." (emphasis added)

Medical assessment under the Motor Accidents Compensation Act 1999

(1) Assessment and review 29Part 3.4 of the Act, Medical assessment , sets out the process for medical assessments and review of medical assessments by the Motor Accidents Medical Assessment Service ( "MAS" ) of the Authority. As earlier noted, the plaintiff was referred for assessment by a medical assessor (Dr Menogue), on 9 February 2010. The referral was pursuant to s.60 of the Act. Both the assessment and the Certificate produced under s.61(1) of the Act were made on 23 April 2010. 30A claimant who is dissatisfied with a medical assessment may apply to the proper officer of the Authority to refer a medical assessment under Part 3.4 to a review panel of medical assessors for review: s.63(1). Such an application may only be made on grounds that the " medical assessment ... was incorrect in a material respect" : s.63(2). The matter was referred to a review panel on 2 June 2010. 31The proper officer of the Authority is to arrange for a panel of at least three medical assessors, but only where the 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 ". In the present case, the proper officer found that no error was made by Dr Menogue.

(2) Relevant Statutory Provisions and MAA Guidelines 32The assessment of a claimant's level of permanent impairment will determine his or her entitlement to non-economic loss under Part 5.3 of the Act. 33The assessment of permanent impairment is to be carried out in accordance with the Permanent Impairment Guidelines of the Motor Accidents Authority dated 1 October 2007 (MAA Guidelines) per s.133(2) of the Act. 34At common law, non-economic loss damages were assessable on an unlimited basis. Under the Act, entitlement to such damages are now circumscribed by provisions of the Act. 35The plaintiff and second defendant focused their submissions in terms of the provisions of s.58(1)(d) of the Act, which provides:- "(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters:- ... (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%...". 36In order to determine the meaning of "permanent impairment" , an assessor is to have regard to the MAA Guidelines. The Explanatory Note of the MAA Guidelines provides that the MAA Guidelines are based upon the American Medical Association Guides to the Evaluation of Permanent Impairment, 4 th Edition (1995) (AMA 4 Guides). The Authority is authorised to issue the MAA Guidelines pursuant to s.44(1)(c) of the Act. The AMA 4 Guides are authorised by s.44(3) of the Act. The MAA Guidelines and AMA 4 Guides are in the nature of delegated legislation: Bratic v Motor Accidents Authority of New South Wales & Ors [2010] NSWSC 1244 at [3]; Allianz Australia Insurance Ltd v Crazzi & Anor (2006) 68 NSWLR 266 at 274. 37The terms "impairment" and "disability" have the meanings prescribed by the MAA Guidelines and the Act. The MAA Guidelines provide that:- "1.11 Impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means. ... 1.13 Disability, on the other hand, is a consequence of an impairment. The WHO definition is 'any restriction or lack of ability to perform an activity in the manner or within the range considered normal for a human being' ... 1.16 Two examples may help emphasise the distinction between impairment and disability. (i) The loss of the little finger of the right hand would be an equal impairment for both a bank manager and a concert pianist and so, for these Guidelines, the impairment is identical. But the concert pianist has sustained a greater disability. (ii) An upper arm injury might make it impossible for an injured person to contract the fingers of the right hand. That loss of function is an impairment. However, the consequences of that impairment, such as an inability to hold a cup of coffee, or button up clothes, constitute a disability..." 38"Injury" is defined in s.3 of the Act as follows:- " injury means personal or bodily injury and includes:- (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses."

(3) The alleged error in the medical assessment 39The plaintiff submitted that Dr Menogue erred by failing to provide for and include in his assessment a percentage of permanent impairment, the loss of flexion and extension, adduction and abduction or internal and external rotation of Ms Nguyen's left and right shoulders. Neither the plaintiff or the second defendant sought to challenge Dr Menogue's assessment of five percent impairment to the cervical spine. 40Counsel for the plaintiff and second defendant agreed that, based on the medical assessment made, if the plaintiff's case is made out, she would have been entitled to an assessment of permanent impairment which included a further five percent impairment in the right shoulder and one percent in the left shoulder, in addition to the five percent impairment to the cervical spine. An assessment on this basis would amount to a total of 11% whole person impairment of the plaintiff. On that basis, the permanent impairment would exceed the 10% impairment threshold for an award of damages for non-economic loss per s.131.

(4) Plaintiff's contentions 41Mr Boulton of counsel for the plaintiff submitted that Dr Menogue's exclusion of the assessed shoulder impairments from his calculations was based upon an error of law, namely, an assumption that he could not include those impairments as being the product of the motor accident unless such impairments resulted from a primary or specific injury to the shoulders themselves. 42The submission for the plaintiff was that the terms of s.58(1)(d) of the Act do not operate to prevent the assessment of permanent impairment of a body part if that part was not itself injured directly in the subject accident. Support for this submission was said to lie in both the terms of s.8(1)(d) and case law concerned with the causation of injury: Department of Public Works v Morrow (1986) 5 NSWLR 166; Owsten Nominees (No 2) Pty Limited v Gardner [1995] NSWCA 345; Roads & Traffic Authority v Malcolm (1996) 13 NSWCCR 272. In Morrow (supra) at 168 McHugh JA (as he was then) noted that an award for lump sum compensation can be made for the loss of efficient use of a limb where the original injury was to the cervical or lumbar spine.

(5) The decision of the proper officer on the application for review 43The proper officer of the MAS in her Statement of Reasons for Decision, Application for Review made in accordance with s.63 of the Act, concluded:- "10. Accordingly, as to this review application, I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect." 44In the Reasons for Decision, the proper officer noted the issues in dispute in the following terms:- "5. The applicant submits that the medical assessment is incorrect in that Assessor Menogue failed to assess any WPI for the loss of shoulder movement. The applicant asserts that 'where an accident causes a neck injury that results in impairments of movements in the neck and both shoulders, the injured person is entitled to the WPI in respect of the loss of movement of the neck and the shoulders." 45It was further argued by the plaintiff that the common law principles relating to causation apply and, therefore, the claimant ought to have received damages for loss of use of her shoulders or arms in addition to that of her neck. 46The proper officer noted in paragraph 6, the common law principles as stated and then added:- "7. However, section 58(1)(d) of the Act mandates that disagreements to be assessed must be about whether the degree of permanent impairment of the injury caused by the accident is greater than 10%. Further, in evaluating the degree of impairment, clause 1.19 of the MAA Guidelines stipulate that:- '1.19 The assessor should consider the available evidence and be satisfied that there:- (i) was an injury to the part being assessed caused by the accident; (ii) is a defined diagnosis that can be confirmed by examination; and (iii) is an impairment as defined at 1.11 of the MAA Guidelines.'" (emphasis added) 47In paragraph 9, the proper officer stated:- "9. While the applicant argues that Ms Nguyen is 'entitled' to be compensated for the loss of movement in her shoulders, under the provisions of the Act and the Guidelines, there is no such allowance. I am satisfied that Assessor Menogue has correctly applied the relevant legislation and followed the appropriate methodologies for the assessment of the claimant's injury."

Plaintiff's submissions 48Mr Boulton for the plaintiff contended that the words " to the part being assessed " in clause 1.19(i) of the MAA Guidelines represented an " unwarranted gloss " on the terms of in the Act. In Crazzi (supra) at 274, Johnson J noted:- "These Guidelines may be characterised as delegated legislation, in the same way as the MAA Medical Guidelines under s.44 of the Motor Accidents Compensation Act: NRMA Insurance Ltd v Motor Accidents Authority (NSW) (2004) 61 NSWLR 264 at 267 [10]-[14], 269 [26]-[28]. As delegated legislation, the Claims Assessment Guidelines cannot affect the proper construction of the Motor Accidents Compensation Act or limit rights conferred by the Act; they exist to indicate how relevant assessments are generally carried out: NRMA Insurance Ltd (at 270 [28]); DC Pearce and R Geddes, Statutory Interpretation in Australia 6th ed (2006) Australia, LexisNexis, at 104 [3.41]; and are subordinate legislation in the nature of regulations: Zurich Australian Insurance Ltd v Motor Accidents Authority (NSW) (at [28]). The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 398. The normal purpose of subordinate legislation is to give effect to the provisions of the parent statute: State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 320. Subordinate legislation is typically designed to carry into effect the expressed intention of the legislature in ways incidental to the execution of the statue itself: State of New South Wales v Macquarie Bank (at 321). It is appropriate to look beyond the Motor Accidents Compensation Act to the Guidelines to ascertain the overall statutory scheme: Coleman v Gray (1994) 55 FCR 412 at 423." 49By reference to the above principles, it was the plaintiff's submission that the proper officer and Dr Menogue's reliance on the MAA Guidelines over the terms of the Act constituted an error of law. The correct interpretation of s.58(1)(d) of the Act, in the plaintiff's submission, allowed for the assessment of permanent impairment resulting from both injuries to a particular part of the body and from other parts (in this case, the shoulder areas) impaired by the injury to the first part (the cervical spine). 50It was submitted that the basis upon which Dr Menogue acted in assessing permanent impairment involved legal error apparent on the face of the record. 51It was observed that the Act requires an assessment to be made of permanent impairment of a person as a result of an injury (or injuries) caused by a motor accident. The terms of s.58(1)(d) of the Act, it was submitted, do not in any way prevent an assessment of permanent impairment of a person's body part that was not itself injured in an accident. 52In the course of the submissions for the plaintiff, reference was made to case law arising in the context of workers compensation law which permitted a claimant to recover for loss of efficient use of an arm due to injury to the neck or loss of the use of a leg caused by injury to the back: Morrow (supra); Owsten (supra); Malcolm (supra) and Scrimshaw v SAR Wood Pty Limited (1997) 14 NSWCCR 235. 53It was contended ( Written Submissions , p.5):- "Dr Menogue has, in fact, assessed only part of the plaintiff's permanent impairment as a result of her neck injury. He has not assessed the impairment of the upper extremities resulting from that neck injury, despite finding that the shoulder impairment was directly related to the neck injury." 54It was additionally contended that there was no provision in the Act that limited the plaintiff's assessment to the neck alone and that s.58 required an assessment to be made of the permanent impairment of the person as a result of a motor accident and not merely of parts of the person directly and immediately injured in such an accident. 55In relation to the decision on the application for review, it was argued that the proper officer's determination that Dr Menogue had not erred in not assessing the upper extremity impairment of the plaintiff was afflicted by the same legal error as was contended affected Dr Menogue's assessment. 56The plaintiff also argued a further basis in respect of the decision of the proper officer. Insofar as reliance had been placed upon clause 1.19 of the MAA Guidelines, the proper officer erred. 57Clause 1.19 has been reproduced in paragraph [46] above:- 58Mr Boulton on behalf of the plaintiff argued that, to the extent that the MAA Guidelines are inconsistent with the words of the Act, then they cannot and do not have legal effect. In particular, it was contended that the Guidelines cannot affect the proper construction of the Act or limit rights conferred by it: Crazzi (supra) and Meeuyissen v Boden [2010] NSWCA 253 at [31] to [34]. 59Mr Boulton submitted that the words "to the part being assessed" in paragraph (1) in clause 1.19 place an "unwarranted gloss" on the relevant provisions of the Act.

Zurich's Submissions 60Mr F Kunc SC, who appeared with Mr S Lowe of counsel for Zurich, submitted that Dr Menogue and the proper officer had not erred in law in respect of the assessment by the former and the decision of the latter. 61The submissions for Zurich placed considerable emphasis upon the purpose of the legislative scheme under the Act. The nature of the legislation, and its historical background indicated, it was submitted, that the Act gave effect to a social and economic compact regarding the insurance of motor vehicles. It was noted, with reference to the Second Reading Speech of the Motor Accidents Compensation Bill, 3 June 1999, by the responsible Minister, that the Act was introduced to ameliorate the " community concern " surrounding increasing CTP Green Slip insurance prices. The Second Reading Speech also noted that the Act was to facilitate the early, extra-curial and non-adversarial resolution of motor vehicle accident compensation claims. 62It was submitted that the provisions of the Act had to be read and interpreted in context. That context included the policy to which the Act gave effect. Mr Kunc relied upon the following observations of Allsop P in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]:- "I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34." (emphasis added) 63Reliance was also placed upon the learned President's further observations at [14]:- "Also relevant to the task at hand is what was said by Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at 315. Though his Honour was in dissent, the following passage can be taken to have been expressly approved by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 at fn 48: "... The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover, Viscount Simonds said [[1957] AC 436 at 461]: '... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.' In Re Bidie [1949] Ch 121 at 130, Lord Greene M.R. said:- 'In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word "representation". ... The real question which we have to decide is, what does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy.' The instances of general words in a statute being so held to be constrained by their context are legion: e.g. Ross v The Queen [[1979] HCA 29; 141 CLR 432 at 440] and the cases collected in Cross, Statutory Interpretation (1976), pp. 44-56." 64Zurich also relied upon the decision of the High Court in Allianz Australia Insurance Limited v GSF Australia Pty Limited (2005) 221 CLR 568. That case concerned the interpretation of provisions of the Motor Accidents Act 1988 . There, McHugh J stated at 581:- "... because the task before the Court is one of statutory construction, the question of causation must be determined in light of the subject, scope and objects of the Act." 65Zurich contended that the definition of "injury" in s.3 of the Act and the use of that term in s.58(1)(d) does not encompass the bilateral shoulder condition of the plaintiff as any such impairment that was not the subject of direct trauma or isolated injury in the motor accident. Mr Kunc contrasted the Macquarie Dictionary 3 rd Edition definition of the word "injury" - "harm of any kind done or sustained" - with the definition of "injury" at s.3 of the Act as including "personal or bodily injury" . This variation in definition was relied upon as support for the submission that the legislature intended that permanent impairment based only upon injuries occurring immediately and with a pathological basis could be taken into account for the purpose of determining permanent impairment for non-economic loss purposes under the Act. Mr Kunc referred to the judgment of McHugh J in GSF (supra) at 588 where his Honour noted:- "In the present case, however, Mr Oliver's injury was not a consequence of contact with or use of the unloading mechanism. Even on a common law approach to causation, uncontrolled by the objects of the Act, the defect in the vehicle did not cause Mr Oliver's injury because it had no physical connection with the injury. There was no direction to use the defective loading mechanism. On the contrary, there was a direction to work without it." 66Whilst the facts in GSF (supra) were different from the relevant facts in the present case, Mr Kunc relied upon the High Court's analysis to support the concept of causation as one that requires a direct physical nexus between cause and effect, or, as in this case, injury and permanent impairment. As Dr Menogue did not find an underlying causal connection between the shoulder impairment and the motor vehicle accident, Zurich submitted that his findings were correct in law. 67Alternatively, Zurich submitted that the language of s.58(1)(d) of the Act, employing as it does, two causative phrases " caused by " and " as a result of ", is ambiguous. On the basis of the quoted dicta of Allsop P in Wilson (supra), it was submitted such ambiguity is to be resolved according to the objectives and provisions of the Act and should be construed narrowly, thereby confining the operation of the section. 68Mr Kunc referred to particular provisions concerning the objects of the Act: s.5(1)(e), s.5(2)(b) and s. 6(1) of the Act. They are in the following terms:- "5(1) The objects of this Act are as follows: ... (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities". ... (2) It must be acknowledged in the application and administration of this Act: ... (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries ... 6(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects..." 69Zurich's submissions also addressed the concept of causation encompassed in the expression "... the degree of permanent impairment of the injured person as a result of the injury caused by ..." appearing in s.58(1)(d) of the Act. Reliance was placed upon the examination of the phrase "caused by" by Windeyer J in the case of Government Insurance Office of New South Wales v R J Green & Lloyd Pty Limited (1965-1966) 114 CLR 437 at 447, wherein it was stated:- "But the question that arises in cases such as this is not answered simply by asking was the vehicle being used. The words 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury. 'Caused by' connotes a 'direct' or 'proximate' relationship of cause and effect . 'Arising out of' extends this to a result that is less immediate; but it still carries a sense of consequence." (emphasis added). 70In aid of the restricted interpretation contended for by Zurich, attention was drawn to the phrase "injury caused by" . This was said to indicate that permanent impairment referred to in s.58(1)(d) had to be caused directly or immediately as a result of the accident. Whilst Zurich conceded that, based on the assessment made, the impairment to the plaintiff's shoulders arose from the injury to her cervical spine which had been caused by the motor accident, the terms of s.58(1)(d) do not permit secondary or indirect injuries to be taken into account. Mr Kunc relied upon the passage in Prince Earnest Augustus of Hannover [1957] AC 436, cited in Wilson (supra) at [14], whereby Viscount Simonds said at [461]:- " ... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." 71Zurich also relied upon the following dicta of McHugh J in GSF (supra) at 582 concerning the Motor Accidents Act :- "Although the Act establishes a compulsory third party insurance scheme for motor vehicle injuries, the Act does not and was never intended to provide a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle. The Attorney-General made a statement to this effect when he gave the Second Reading Speech for the 1995 Bill (40):- 'The CTP policy and the motor accidents scheme simply are not, and were never intended to be, a comprehensive accident compensation scheme providing substantial damages in all cases of injuries connected in some way to the use of a motor vehicle.'" 72Accordingly, it was submitted that both the commentary relating to the CTP scheme in the Second Reading Speech and the above observations assist in the interpretation of s.58(1) of the Act. It was submitted that the following observation of McHugh J in GSF (supra) are also relevant:- "The above examination of the subject, scope and purpose of the Act suggests three matters that are relevant in the construction of Pt 6 of the Act. First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Secondly, cost-saving and the need to keep the scheme affordable are significant objects of the Act. Thirdly, the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be 'caused ... by a defect in the vehicle'." 73Zurich also relied upon the reference in GSF (supra) to the effect that common law concepts of causation may be abrogated where policy considerations so dictate: at 587. 74In relation to the decision of the proper officer on the application for review, it was argued that where there is an established, longstanding practice under legislation in a specialist field, that practice should not be overturned unless it is clearly contrary to the Act. The "Permanent Impairment Assessment Newsletter", Volume 1 - Issue 2 July 2002, does, in the submissions of the insurer, demonstrate that practice. The Newsletter provided:- "A person with a soft tissue neck injury, often a whiplash associated disorder, may have associated pain in the region of one or both shoulders. As a result of this pain, there may be inhibition of range of motion at the shoulder. The person should be assessed with reference to the appropriate diagnosis related estimate for the neck injury. Assessment of restricted range of motion at the shoulder is appropriate only if there is a clear history of injury to the shoulder. This must be documented in the medical records that are contemporaneous with the time of the injury." 75Whilst the identity of the author or authors of this Newsletter was not made clear, the inclusion of the Authority's letterhead and the stipulation that the Newsletter is " supported by the Motor Accidents Authority ", would suggest that it at least has the general support of the Authority. The insurer submitted that this general practice, when considered in light of the terms of s.58(1)(d) of the Act, does not contravene the Act. 76Zurich argued that the " loss of efficient use " cases, such as Morrow (supra), Owsten (supra) and Malcolm (supra) are confined to the specific statutory assessment protocols under s.16 of the Workers Compensation Act 1926 and s.66 of the Workers Compensation Act 1987 .

Plaintiff's submissions in reply 77The plaintiff submitted that the expression in s.58(1)(d) "as a result of the injury" and "caused by the motor accident" are free of ambiguity. The word "result" in s.58(1)(d), it was submitted, had its ordinary consequential meaning. The decision of Basten JA in Harrison v Melhem (2008) 72 NSWLR 380 was relied upon to support the ordinary and natural meaning of the word "result" . 78Even if the latter could be said to be ambiguous, the plaintiff submitted that, where the construction is a finely balanced one, it ought be interpreted by reference to general legal principles: Harrison (supra) per Basten JA at 409. In this case, the general law, it was argued, would dictate a broad, rather then an unduly narrow, interpretation of the section. 79The plaintiff relied upon the following observations of McHugh J in GSF (supra) at 581:- "The causal inquiry as to whether the injury is 'a result of . . . [the] defect' requires a less direct connection than the inquiry as to whether the injury is 'caused . . . by [the] defect'. The expression 'a result of' emphasises the result or effect of the defect, rather than the defect causing the result. The term 'result' emphasizes effect and is less concerned with the proximity of cause and effect." 80Zurich responded, submitting that this dicta does not assist the plaintiff. In GSF (supra), the expression was "is a result of" in contrast to the phrase " as a result of" in s.58(1)(d) of the Act. Additionally, McHugh J in GSF (supra) was construing the word "result" in circumstances where it needed to be distinguished from the phrase "caused by" , in the expression " is a result of and is caused during ... ".

Consideration 81Whilst the submissions for the plaintiff and the defendant focused upon the terms of s.58(1)(d), the operative provisions are in fact those to be found in Part 5.3, Damages for non-economic loss , in Chapter 5 of the Act. 82Section 131, which is found in Part 5.3, entitled Impairment thresholds for award of damages for non-economic loss , is in the following terms:- "131. 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%." 83I note that these provisions are, of course, in identical terms to those to be found in s.58(1)(d) of the Act. 84Section 132(1) provides:- "132(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the Court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment). 85Section 133 is concerned with the method of assessing the degree of impairment. Section 133(1) is in the following terms:- "133(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part." 86Accordingly, the provisions of s.58(1) do not themselves confer an entitlement or an eligibility to damages for non-economic loss for motor vehicle caused injuries. The impairment thresholds for an award of damages for non-economic loss are determined by the other provisions set out above, in particular, by s.131. 87In accordance with those provisions, what is assessable under the Act is "permanent impairment" of an injured person where such impairment is "a result of" the injury. 88"Injury" will commonly be physical injury (that is, personal or bodily injury) although s.3 also gives it an extended meaning to include psychological or psychiatric injury. 89The provisions of the Act generally are built around three concepts:-

A motor accident.
Injury caused by a motor accident.
Permanent impairment as a result of such injury. 90The second and third concepts both involve causal concepts. 91A bodily injury may or may not cause or give rise to impairment. The term "impairment" is not defined in the Act. The expression "permanent impairment" , as earlier noted and extracted above, is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (4 th ed). 92It is trite to say, and in accordance with ordinary human experience, that injury to one part of a person's body can affect or lead to impairment in both the part directly injured and in a related or connected part. 93In the present case, there was no dispute as to the following facts:- (1) The plaintiff was injured in a motor accident. (2) That as a result of the accident, she suffered an injury to the cervical/neck area: "cervical injury" . (3) The injury to the neck has led to permanent impairment (assessed at 5%). (4) The plaintiff has, as a consequence of the neck injury, also suffered an impairment in her right shoulder ( "... the right shoulder noted today is directly related to her cervical injury" - Dr Menogue at p.12 of the Certificate). 94Application of common law causation principles would, in my opinion, support the conclusion that impairment in one or both of the plaintiff's upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury. 95The question, however, in the present case is whether the provisions of the Act operate to alter, constrain or limit common law principles so as to disentitle an injured person to have what might be described as consequential impairment taken into account in the assessment of "permanent impairment" . 96Zurich argued that the plaintiff's case depends upon giving the words "as a result of" a broad construction. I disagree. 97The impairment threshold provisions for awards for non-economic loss in s.131, s.133(1) and s.58(1)(d) are directed to "the degree of permanent impairment of the injured person as a result of the injury ..." and whether that degree is greater than 10%. 98There is, in my opinion, no warrant for reading the words "the degree of impairment of the injured person" as an impairment of and only of the particular part of a person's body injured in an accident. The reference to "permanent impairment" is expressed as related to the injured person ( "of the injured person" ) as a result of the injury caused by the motor accident. The impairment in s.131 and related provisions is not restricted, as argued by Zurich. 99Injury to one part of the body, such as the back, it is well-known as part of human experience, may result in impairment not only to the injured back itself but to other parts constitutionally associated or linked to the back such as the upper or lower limbs. The explanation, of course, is well understood and lies in the fact that trauma to the back may interfere with or cause interference to or impingement of the nerve roots associated with the spinal column (eg, pain (sciatica) or loss of function in the limbs). 100Under the provisions of the Act to which I have referred, the "result" of injury to the back in such cases cannot be taken as imposing a limit to impairment arising only from the injury to the back itself. 101Similarly, in a case where an injury is sustained by a person in a motor vehicle accident to the side of the face that later causes an interference to the nerves to the eye resulting in blindness in that eye, would, in my opinion, be readily seen as the result of the injury to the face. 102Sections 131 and 132 of the Act are expressed in straight-forward language involving the juxtaposition of ordinary English words "impairment" , "as a result of" and "injury" . Unless the context otherwise requires, there is no basis for notionally engrafting onto such terms refinements or qualifications or conditions that are not expressed in the statute. 103The Oxford Dictionary's primary meaning of the word "result" is "arise as an effect, issue or outcome from some action, process or design" . 104If that meaning is applied to the permanent impairment thresholds referred to in the Act, they are then to be taken as concerned with permanent impairment (of the injured person) which arises as an effect or outcome of the injury sustained in the accident. 105The legislature has chosen the phrase "as a result of" over other possible alternatives such as the expressions "caused by" or "arising out of" . The former imports a proximate relationship of injury to impairment. The latter expression involves a less proximate one: R J Green & Lloyd (supra) at 443 per Barwick CJ and Windeyer J at 447. 106In GSF (supra), the High Court considered the provisions of s.69(1) of the Motor Accidents Act which provided that Part 6 of that Act (which governs awards of damages) applied to and in respect of an award of damages which related to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. 107The term "injury" was relevantly defined in s.3(1) as meaning:- "Personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation of a defect in the vehicle." 108It is, of course, necessary to pay particular regard to both the provisions of the statutory provision there in question and the facts to which the Court was concerned before any observations made in the course of the decision in that case can be applied as guidance for the construction of the statutory provisions with which the present proceedings are concerned. 109McHugh J, in relation to the construction of the term "injury" in s.3(1), observed that the definition of that term emphasised the element of "cause" as the key factor that governs the entitlement to compensation. So far as s.3(1)(iv) was concerned, the definition had a dual aspect of causation. The first was in the introductory words of the definition involving causation from the point of view of a human act (the owner or driver). The second aspect required injury to be the result of something inanimate, namely, a defect in the vehicle. The second aspect also contained a temporal requirement, namely, that the injury must be "caused during" the relevant timeframe. 110In his Honour's analysis of the third aspect of causation - "a result of and is caused ... by a defect in the vehicle" - attention was given to injury being a result of and caused during one or other of the matters set forth in the three sub-paragraphs in s.3(1) of the definition. 111In the expression "a result of ... [the] defect" , McHugh J observed that significance was to be attached to the use of the indefinite article "a" instead of the definite article "the" as suggesting that the defect in the vehicle did not have to be the sole or even the predominant cause of the injury. 112I have referred earlier to the observation made by McHugh J in this respect. I will here reproduce the entire paragraph in which that observation was made(at [38]):- "Nevertheless, there must be a connection between the defect and the injury. The defect must be one of the elements in the chain of events that leads to the injury. The causal inquiry as to whether the injury is 'a result of ... [the] defect' requires a less direct connection than the inquiry as to whether the injury is 'caused ... by [the] defect'. The expression 'a result of' emphasises the result or effect of the defect, rather than the defect causing the result. The term 'result' emphasises effect and is less concerned with the proximity of cause and effect." 113Reference has earlier been made to the submissions concerning the objects of the Act, in particular, s.5(1)(e) emphasised in the course of Zurich's submissions. However, what is also to be noted is s.5(1)(b) which is in the following terms:- "5(1)(b) To provide compensation for compensable injury sustained in motor accidents, and to encourage the early resolution of compensation claims." 114What are "minor injuries" and "severe injuries" (both referred in s.5(1)(e)) will depend upon the circumstances of each case. 115Section 6(1) specifies the approach that needs to be taken in the interpretation and the application of the objects of the Act and, in particular, states that a construction that would promote the objects of the Act or a provision of the Act is to be preferred to one which would not promote those objects. 116One can see in various provisions of the Act different expressions in relation to causal concepts. In relation to Chapter 3 of the Act, that chapter is said to apply to and "in respect of an injury caused by a motor accident ..." . Section 85A(3)(b) which is concerned with a claimant's duty to provide relevant particulars of claim, refers to relevant particulars as "all disabilities and impairments arising from those injuries" : s.85A(3)(b), and s.122(1) states that Chapter 5, Award of damages , applies to and in respect of an award of damages which relates to the death of or injury to a person "... caused by the fault of the owner or driver of a motor vehicle ..." . 117There is, as McHugh J stated in GFS (supra), a basis, in certain statutory contexts, for determining the expression such as "as a result of" as less demanding than expressions such as "caused by" . As his Honour stated in that case, the term "result" emphasises effect and is less concerned with the proximity of cause and effect. 118In relation to s.131, even proceeding upon the basis that the section refers to the concept of cause and effect between injury and permanent impairment, that expression can be, as earlier stated, a less demanding one than expressions such as "arising out of" and, in certain contexts, the phrase "caused by" . 119However, in the context of the present case, the connection between impairment of at least the right shoulder was not determined by Dr Menogue as having been an indirect connection, but that it was "directly related" to the cervical injury. Such a direct connection, in my respectful opinion, satisfies both common law principles of causation and the statutory formulation "as a result of" (the injury). In other words, it is unnecessary for the requisite causal connection to be established to give the expression "as a result of" some broad or artificial meaning. It is, in my opinion, in context, to be given its ordinary meaning. The medical assessment that was required to be carried out in the present case pursuant to s.60 of the Act was to establish the plaintiff's permanent impairment (as an injured person as a result of the motor accident) that required an assessment of the injury to the cervical spine and its direct effects on related areas including, in particular, the plaintiff's right shoulder. 120It follows that, in my respectful opinion, the medical assessment undertaken pursuant to s.60 of the Act was affected by legal error, in that the medical assessor proceeded upon a different basis, namely, that there needed to be a causal connection between the motor accident and a "primary and isolated" injury to the right and/or left shoulder(s). 121Similarly, the decision of the proper officer on the review application made pursuant to s.63 of the Act, proceeded upon the same basis in determining that there was no reasonable cause or ground to conclude that the medical assessment was incorrect in a material respect. It is clear that, in this respect, the proper officer proceeded upon the same understanding and analysis of the provisions of the Act that was employed by the medical assessor in determining the impairment thresholds for an award of damages for non-economic loss. 122The Certificate of Dr Menogue established the following causal associations or relationships:- (1) A causal nexus between the motor accident and injury to the plaintiff's cervical spine. (2) A causal nexus between the restricted range of movement involving the right shoulder ( "directly related to her cervical injury" ) and the injury referred to in (1). 123The findings or opinions expressed in the Certificate by Dr Menogue in terms of (1) and (2) above establishes the requisite causal connection between the motor accident and:- (1) The plaintiff's cervical injury. (2) The restricted range of movement of the right shoulder. 124Both (1) and (2), in other words, resulted in impairment as a result of the motor accident injury. 125The opinion of Dr Menogue assumes that there is a statutory requirement that in order for there to be a causal relationship between the accident and impairment in this case there must be a "primary and related injury" to the shoulders themselves, as well as, separately to the cervical spine from the motor accident. 126That, with respect, involves an approach to statutory construction by the medical assessor which does not accord with the terms of the relevant statutory provisions nor with common law principles concerned with the concept of proximate causation. 127In those circumstances, I have concluded that the Certificate of the medical assessor was vitiated by an error of law, as was the decision of the proper officer made on 19 July 2010. 128Consequential orders, accordingly, should be made and the matter remitted to the Authority to be determined in accordance with law.

Orders 129I make the following orders:- (1) A declaration that the Certificate issued under Part 3.4 of the Motor Accidents Compensation Act 1999 in MAS Matter No 2010/02/0365 dated 23 April 2010 was made contrary to law, in particular, the provisions of s.131 of the Motor Accidents Compensation Act . (2) An declaration that the decision of the proper officer made on application for review pursuant to s.63 of the Motor Accidents Compensation Act was made contrary to law, in particular, the provisions of s.131 of the Motor Accidents Compensation Act . (3) An order that Matter No 2010/02/0365 be remitted to the Motor Accident Authority of NSW to be determined in accordance with law. (4) Order that the second defendant pay the plaintiff's costs of and incident to these proceedings. 130I make the last-mentioned order as to costs on a provisional basis, that is to say, that, in the event that the second defendant wishes to make submissions on a basis other than a costs follow the event basis, then it is to lodge with my associate written submissions within the next 14 days, otherwise the provisional order will thereafter operate as a final order as to costs.

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: 05 May 2011

(1996) 13 NSW CCR 272

(1997) 14 NSWCCR 235

(1996) 13 NSWCCR 272

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