Nominal Defendant v Adilzada

Court of Appeal (NSW)|2016-08-25|Before: McColl JA, Meagher JA, Gleeson JA

The applicant's notice of motion

On 9 April 2015, the applicant filed a notice of motion seeking an order pursuant to Uniform Civil Procedure Rules 2005 (UCPR), r 23.4 that the respondent submit to a medical examination by Professor Cameron for assessment of his eligibility as a lifetime participant in the Scheme. In the alternative, orders were sought that the respondent comply with the applicant's request under s 86(1) that he attend a medical examination, and that the proceedings be stayed until the respondent complied with that request. The applicant no longer relies on UCPR r 23.4 as providing a basis for requiring the respondent to undergo a medical examination.
That motion was listed for hearing on 21 July 2015. On that occasion consent orders were made which provided for the respondent to be examined by Professor Cameron. A disagreement subsequently emerged as to the purpose of that examination. When it became apparent that Professor Cameron had undertaken a second FIM assessment, and that the applicant proposed to rely on it to support an application for the respondent's lifetime participation, the proceedings were relisted before the primary judge.
After a short hearing in October 2015 his Honour set aside the consent orders, so as to revive the motion of 9 April. In the course of that hearing counsel for the Nominal Defendant described the "central" issue between the parties as being: (tcpt 22/10/15, p 2) … whether s 86 of the Motor Accidents Compensation Act, which entitles an insurer to request a medical examination on the part of the applicant and which obliges the claimant under penalty to comply with that request, may be used for the purpose of an assessment for eligibility for participation in the Lifetime Care and Support Scheme.

Leave to appeal

The second question is not confined to the "central" issue described above and also inquires whether s 86 confers power on a court to compel a claimant to undertake a medical examination or assessment in circumstances where they have failed to comply with a request that they do so. The primary judge did not consider this question of power, noting that as between the parties there was no dispute "that a court can order a claimant to meet the obligations stated in Section 86": [20]. In my view that consensus as between the parties does not reflect the proper construction of s 86 as to the conferral of such a power.
Section 86 does not in terms confer power on a court to order that any request to undergo a medical examination or assessment be complied with. Nor would the conferral of that power be implied unless it was clearly necessary to do so, because of the basic rights which its exercise would override: Coco v The Queen (1974) 179 CLR 427; Fernando v Commissioner of Police (1995) 36 NSWLR 567. Subsection 4(b) provides a sufficient sanction in the event that a claimant fails without reasonable cause to comply with a request under subs (1). That sanction is that court proceedings cannot be commenced, or if commenced, cannot be continued, whilst the failure to comply with that request continues.
Notwithstanding this difficulty in the formulation of question 2, the underlying issue raised by the question is of general importance and at the heart of the dispute between the parties. The respondent's present position is that he does not want to become a participant in the Scheme and will not attend any medical examination which is directed to securing that outcome. For that reason, the Nominal Defendant should have leave to appeal from the order determining question 2, for the purpose of arguing that the answer to the question should be qualified to make clear that a request may be made under s 86(1) for the purpose of an assessment of the claimant's eligibility for participation in the Scheme.
The respondent contends that leave should not be granted in relation to question 3. That question addresses whether, even if s 86 can be used to compel the respondent to undergo a medical examination, the applicant should be permitted to rely on the further FIM assessment of Professor Cameron.
The primary judge described the earlier "misunderstanding" between the parties which resulted in the obtaining of the second FIM assessment: [15] The plaintiff says that the consent orders made on 21 July 2015 did not contemplate the use of Professor Cameron's report for an application to be accepted into the LCS scheme. The orders, says the plaintiff, were restricted to the plaintiff's damages proceedings in the District Court. Specifically, according to the plaintiff, he had not consented to attending and undergoing an FIM assessment to determine his eligibility for the LCS scheme. [16] The defendant's understanding of the orders was that the appointments, in particular that with Professor Cameron, could include the conducting of an FIM assessment to see if the plaintiff would qualify for the LCS scheme. Consistent with that understanding, when the defendant's solicitor wrote to Professor Cameron the letter stated "The purpose of the re-examination is to determine the Plaintiff's eligibility for lifetime participation in the Lifetime Care and Support Scheme".
It is submitted on behalf of the respondent that had it been appreciated that the further medical examination was to be used for the purpose of determining his eligibility for participation in the Scheme, arrangements would have been made that he be accompanied to the examination, either by his treating physician or some other person who was independent of his father and tutor. In the face of that submission, accepting that there was a misunderstanding at the time the consent order was made, the applicant indicated that it would not press for an affirmative answer to question 3 in the event that it is successful in relation to question 2. In these circumstances, it is not necessary to consider question 3 and leave to appeal from the order answering that question should be refused.

Discussion

Like s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 86(1) imposes an obligation on a claimant to undergo a medical examination. In doing so it confers a power in the insurer (and the person against whom the claim is made) to engage that obligation. See Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; [2009] NSWCA 59 at [3] (Giles JA); [9] (McColl JA); [81], [116] (Basten JA).
There is no difficulty in identifying what may be the subject of a request made under s 86(1). It is that the claimant undergo an examination or assessment of the kind described in paras (a), (b) or (c) which is not "unreasonable, unnecessarily repetitious or dangerous". The circumstances in which such a request may be made are constrained by the purpose or purposes for which the power to make the request may be exercised. Those purposes describe the ambit or scope of the power and in accordance with established principle, must be "inferred from the construction of the Act read as a whole": per Gibbs CJ in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 186 (citing Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1033).
The primary object of that task of construction was described by the plurality (McHugh, Gummow, Kirby and Hayne JJ) in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] as follows: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
It is convenient first to refer to the relevant provisions of the LCS Act, and then to the application of s 86 within Chapter 4 of the MAC Act.
The LCS Act confers an entitlement on the "insurer of a claim" to make an application for an injured person to become a participant in the Scheme without that person's consent. The "claim" is that person's claim for damages in respect of injury caused in a motor vehicle accident (LCS Act, s 5; MAC Act, s 3). The insurer is the "insurer for the purposes of Chapter 4 (Motor accident claims)" of the MAC Act with respect to that claim (s 3(1)). Under ss 78 and 80 of the MAC Act the insurer has the conduct and control of the defence of that claim, as well as of any negotiations to compromise or settle it, and is required to resolve the claim as justly and expeditiously as possible.
Section 6 of the MAC Act provides that in the interpretation of its provisions a construction that would promote the objects of that Act is to be preferred to one that would not (s 6(1)). Those objects, identified in s 5, include to provide appropriately for the future needs of those with on-going disabilities; to provide compensation for compensable injuries and encourage the early resolution of compensation claims; to keep premiums affordable, recognising that third-party bodily injury insurance is compulsory; and to benefit all members of the motoring public by keeping the overall costs of the third-party scheme within reasonable bounds.
The purpose for the establishment of the LCS Scheme was summarised by Garling J in Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345, in a passage adopted in the judgment of the High Court at [14]. The features of the Scheme include that it cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured; that it would provide for all of that treatment and care, including attendant care, for as long as was necessary on an individually assessed basis; and that because the Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs.
Chapter 4 of the MAC Act applies to claims in respect of motor accidents. In the first instance the claim must be made against the third party insurer, which is given the conduct and control of negotiations in respect of the claim, as well as the conduct of any legal proceedings by which it is pursued (s 78(1)). If the claim cannot be resolved by agreement, there is provision for it to be submitted to a process of administrative assessment. If that assessment does not satisfactorily resolve the claim, it may then be determined by the taking of court proceedings (s 107). Chapter 5 applies to the awarding of damages by a court, and to assessments of damages undertaken as part of the administrative process directed to the settlement and resolution of claims.
Chapter 4, Pt 4.3, imposes duties on the insurer and the claimant with respect to the assessment and resolution of a claim. Some of those duties are imposed in general terms. Others apply depending on whether court proceedings have or have not been commenced. An overriding duty is imposed on the insurer to endeavour to resolve the claim, by settlement or otherwise, as justly and expeditiously as possible (s 80(1)). The duties imposed on a claimant include to co-operate with the person against whom the claim is made and that person's insurer for the purpose of giving them "sufficient information" to be able to make "an early assessment of liability" and "an informed offer of settlement" (s 85(1)). That duty applies until court proceedings have been commenced in respect of the claim.
Section 86 is concerned with the provision of information of a particular kind. Specifically it is directed to ensuring that the person against whom the claim is made, or that person's insurer, have for the purpose of responding to the claim, the benefit of medical examinations and assessments undertaken by practitioners or assessors nominated by them.
As appears from [10] above, the LCS Act confers a "choice" on the CTP insurer to respond to a claim made by a person eligible to become a participant in the Scheme by electing to have their treatment and care needs dealt with in the Scheme rather than by an award of damages. Section 130A is part of and gives effect to that legislative scheme by removing the claimant's entitlement to damages for such needs as are covered by the Scheme.
In making a request under s 86(1) for the purpose of determining a claimant's eligibility for participation in the Scheme, the insurer is responding to the claim in a way expressly provided for by s 130A and the LCS Act. Its doing so is within the purpose for which the entitlement in s 86(1) is conferred. In concluding otherwise the primary judge did not have sufficient regard to the scheme of the two Acts and the significance of s 130A.

Conclusion

In my view the appeal should be allowed and the orders determining question 2 should be set aside. That question should be answered as follows so as to take account of the observation in [19] above: The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person's eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues. Question 2 otherwise should be answered in the negative.
However before any orders are made giving effect to that outcome the parties must have an opportunity to make submissions as to whether the applicant should be permitted to amend its notice of appeal as proposed by draft order 3 in [39] below.
If the application and appeal are dealt with as I suggest, I would also propose that the costs order made in the Court below not be disturbed and that there be no order as to the costs of the appeal. That is an appropriate outcome which takes account of the general importance of the more specific issue that the fuller answer to the question as formulated by the parties provides.
Subject to hearing from the parties, I consider the following orders should be made:
Grant the applicant leave to appeal against order 1 made on 15 March 2016.
Otherwise dismiss the Summons seeking leave to appeal.
Direct the applicant to file a notice of appeal limited to ground 2 of its draft notice of appeal (excluding the words "or under UCPR r 23.4") and to relief seeking an order that question 2 be answered as formulated in order 5 below.
Allow the appeal.
Set aside order 1 made on 15 March 2016 to the extent that it answers question 2 in the negative and in lieu thereof order that question 2 be answered as follows: The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person's eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues. Question 2 otherwise should be answered in the negative.
Make no order as to the costs of the appeal.
To permit the parties to be heard on these additional matters, the following direction should be made: The parties to lodge written submissions (not to exceed three pages) with Meagher JA's Associate, the applicant within seven days of the date of this direction, and the respondent within seven days thereafter, those submissions to address the question in [37] above and the costs order proposed in [38] above. The Court will then determine on the papers the final orders to be made.
GLEESON JA: I agree with Meagher JA.

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: 22 September 2016

Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012(NSW)

Lifetime Care and Support Scheme (Motor Accidents (Lifetime Care and Support) Act 2006(NSW)

Motor Accident Compensation Act 1999(NSW)

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote should not be read as part of the judgement] On 18 October 2007, the respondent driver was injured in a motor accident, sustaining a serious brain injury. He commenced proceedings in the District Court against the Nominal Defendant for damages relating to those injuries, including for economic loss for treatment and care services. The respondent was entitled, if eligible, to become a participant in the Lifetime Care and Support Scheme (Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (LCS Act). Pursuant to s 130A of the Motor Accident Compensation Act 1999 (NSW) (MAC Act), participation in the Scheme would affect his entitlement to recover damages for economic loss for treatment and care services. An application to become a participant can be made by the injured person, or by a third party insurer of a claim and, in the case of brain injury, has to be accompanied by a Functional Independence Measure (FIM) assessment. The Nominal Defendant requested that the respondent undertake a FIM assessment to determine his eligibility for the Scheme. The respondent did not do so. The Nominal defendant filed a Notice of Motion for a determination of whether such a request was within, and engaged the application of, s 86 of the MAC Act. The primary judge found that s 86(1) had no application to the LCS Act. Accordingly he answered the question raised by the Nominal Defendant in the negative. As the decision was interlocutory, and addressing separate questions formulated by the parties, the applicant required leave to appeal. The Court granted leave to appeal because the question raised is of general application and importance. The issue in the proposed appeal was: Whether on proper construction of s 86 of the MAC, the purposes for which the insurer may make a request that a claimant undergo a medical examination include to assess that person's eligibility for lifetime participation in the Lifetime Care and Support Scheme. The Court held (per Meagher JA, McColl and Gleeson JJA agreeing), granting leave to appeal and allowing the appeal: The insurer or a person against whom a motor accident claim is made may under s 86(1) of the Motor Accidents Compensation Act 1999 (NSW) request the claimant to undergo a medical examination or assessment for the purpose of determining that person's eligibility for participation in the Lifetime Care and Support Scheme. If the claimant fails without reasonable excuse to comply with such a request court proceedings cannot be commenced or continued in respect of the claim where the failure continues: [36]. Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45 considered

At a glance

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