Scott v Insurance Australia Limited - [2015] NSWSC 1249 - NSWSC 2015 case summary — Zoe

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Scott v Insurance Australia Limited

[2015] NSWSC 1249

Supreme Court of NSW|2015-06-05|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2015-06-05

Before

Campbell J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

Background facts

Ms Scott was injured in a car accident on 15th of May 2010. After turning into her driveway in a semi-rural area, a following vehicle which swerved onto the shoulder to avoid hitting the car immediately following Ms Scott "T-Boned" the rear passenger side of her car. The first defendant, Insurance Australia Limited t/as NRMA Insurance (the insurer), admitted liability for Ms Scott's claim under s 81 of the Act.
Ms Scott suffered an injury to her neck and low back, the latter resulting in an L5/S1 discectomy carried out in August 2010. Because of the effects of her physical injuries, she suffered a chronic major depression which resulted in a whole person permanent impairment assessed under s 60 of the Act by Dr Friend (in a certificate dated 19th March 2013) at 15 per cent, relevantly for statutory purposes "greater than 10%". The lumbar spinal injury was assessed as resulting in a whole person impairment of 5 per cent.
In anticipation of Ms Scott referring her claim for assessment by the Motor Accidents Claims Assessment and Resolution Service in accordance with the provisions of Division 2, Chapter 4, of the Act, her solicitors served written submissions on the insurer, also described as "particulars of the claim pursuant to s 85", under cover of their letter of 22nd April 2013. (White Folder 123 - 129). Those submissions advanced, inter alia, a claim for past and future voluntary attendant care services in accordance with the principles established by Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 and subsequent cases.
The particulars of the claim were as follows: "(a) Full time domestic assistance at 40 hours per week" from 15th May 2010 to 31st October 2010; "(b) 10.5 hours per week" from 1st November 2010 to the date of the submission, 16th April 2013; and (c) future assistance at the rate of 10 hours per week "for the balance of her life expectancy which is 48 years". The basis of the last claim is not entirely clear. The claimed rate of $40 per hour is higher than the then current statutory rate under s 141B of the Act, but a claim for care on a commercial basis is not expressly articulated.

[2]

MAS Referral Under Section 42 of the Act, 'treatment' includes "the provision of attendant care services". Part 3.4 of the Act permits a treatment disagreement between the insurer and the claimant to be referred to the Medical Assessment Service for determination. Please be advised that if the above disagreement is unable to be resolved, it is our intention to lodge an Application for an Assessment of a Treatment Dispute with the Medical Assessment Service in the format listed above. We look forward to hearing from you to negotiate this matter further. (My emphasis)

The statement that the insurer looked forward to hearing from Ms Scott's solicitors "to negotiate this matter further" is odd as there is no evidence of any negotiations at any stage in relation to this matter. I draw the inference that the language of negotiation, dispute and disagreement was used to create the appearance of engagement with guidelines 8.2 to 8.5 of the Medical Assessment Guidelines (the Guidelines) made under s 44 of the Act.
There is no evidence of any contact in the meantime between the insurer and Ms Scott's solicitors until, by its solicitors, the insurer made an application for assessment of a treatment dispute under s 60 of the Act. The description of this dispute provided by the insurer ran to 5 pages (WF 143 - 147). For the initial period, MAS was asked to consider whether each and every hour between 0 and 40 was reasonably necessary, and related to the injuries caused by the motor accident; for the second period each and every hour between 0 and 10.5; and for the future each and every hour between 0 and 10. The insurer continued to imply that it understood that the claim for the future was propounded on the basis of commercial care.
By her solicitors, Ms Scott lodged a reply on 18th June 2013 contesting that the matter was a "treatment dispute" (WF 157). Detailed submissions were attached (WF 161 - 166) disputing MAS's jurisdiction on the basis that "the treatment dispute provisions … [do] not apply to non-commercial disputes for non-specific forms of treatment"; and arguing that "the procedural hurdles necessary for such a referral have not been satisfied". There was an argument about abuse of process and a request for an adjournment to obtain, inter alia, occupational therapy assessments.

[3]

The impugned decisions

By letter dated 2nd July, an officer of MAS, described as a "Case Manager", undertaking the allocation review, by necessary implication, rejected the submission put on behalf of Ms Scott and refused the adjournment. The refusal of the adjournment may be inferred from the determination that "this matter is ready to proceed for assessment". The rejection of the substantive argument about jurisdiction is apparent from the "note" that the submissions had been made and from the statement that "[MAS] is satisfied that a dispute in regards to past and future treatment exists in this claim". The officer was satisfied that the procedural requirements of the Guidelines had been met. He or she then formulated 12 questions from the insurer's five pages, identifying these matters as "treatment disputes to be assessed". The disputes, as formulated, picked up each of the medical matters referred to in s 58(1)(a) and (b) of the Act, but defined them by separate reference to Ms Scott's orthopaedic injuries, Ms Scott's psychiatric injury, and the injuries generally. The questions were, in substantial part, about whether Ms Scott had a "need" for the "treatment".
The dispute defined by reference to the orthopaedic injuries was referred to Dr Harvey-Sutton; the dispute defined by reference to the psychiatric injury to Dr Paul Friend; and the generally defined dispute to Ms Wise, the Occupational Therapist.
Dr Harvey-Sutton issued two certificates dated 27th August 2014. The first certified that a need for domestic assistance in the initial period "relates to the injuries caused by the motor accident"; but that the need for domestic assistance in the second period "and ongoing" do not relate to the injuries. The medical assessor certified that the claimed hours from 1st November 2010, and "from the date … of MAS assessment and ongoing are not reasonable and necessary in the circumstances".
Dr Friend issued two certificates on 2nd September 2013. He certified that a need for domestic assistance for the initial period related to the chronic major depression, but any need thereafter did not. His second certificate certified that no hours of domestic assistance for the subsequent periods were reasonable and necessary in the circumstances.
On the evidence before me I infer that Ms Wise was provided with the certificates of Drs Harvey-Sutton and Friend (WF 243) and was asked to assess the hours "reasonable and necessary" to address the need identified by Drs Harvey-Sutton and Friend in the initial period. She certified that no hours of domestic assistance were reasonable and necessary in that period. Presumably to make matters clear, she certified that 1 to 40 hours of domestic assistance in that initial period were "not reasonable and necessary in the circumstances".
There is no "combined certificate" (cf s 61(10(b) of the Act), presumably because no provision is made for such a certificate assessing medical matters under s 58(1) (a) and (b) of the Act.

[4]

An extension of time

As I have explained, the latest decision challenged is dated 21st November 2013. The summons commencing proceedings in this Court was not filed until 20th November 2014. This contravenes the requirements of Rule 59.10(1) Uniform Civil Procedure Rules 2005 (NSW). Ms Scott seeks, and the insurer opposes, an extension of time under Rule 59.10(2).
Ms Scott relies upon the affidavit of the solicitor with the current carriage of the matter, Ms Rita Dawood sworn on 10th February 2015 and the insurer, on the affidavit of its solicitor, Ms Jennifer Louisa Mithieux, sworn on 8th January 2015.
Ms Dawood explains that a brief to advise was delivered to both senior and junior counsel on or about 25th November 2015. Advice was received from, I infer, junior counsel that the certificates "were not binding", but that, due to other commitments, a fuller advice could not be provided for some time. The brief was withdrawn and other counsel briefed.
The application for general assessment was lodged on 2nd May 2014 and "an allocation review" was conducted by the principal claims assessor on 24th June 2014. When the matter came before the claims assessor to whom it had been allocated on 10th July 2014, he expressed the provisional view that he was bound by the certificates and directed any written submissions to the contrary to be filed by 30th September 2014.
Ms Dawood then realised that the matter was of some complexity. The brief was withdrawn from the second counsel briefed and Mr Mark Daley of counsel, who appeared on the summons, was briefed on or about 9th July 2014.
After a conference with Mr Daley "in or about August 2014" Ms Dawood appreciated "that the view expressed by the CARS Assessor was arguably right" and proceedings for judicial review would need to be commenced. She was also advised that such proceedings must be commenced within 3 months of the date of decision, which time had already well and truly expired.
Due to the plaintiff's relocation to Perth, there was a delay in obtaining instructions, but necessary instructions to commence proceedings were obtained on 23rd October 2014 and, as I have said, the summons was filed on 20th November 2014.
The insurer opposed an extension of time on 3 grounds: 1. possible prejudice to the insurer in that it had expended the time and resources in pursuing the making of the impugned decisions; 2. Ms Scott had not exercised reasonable diligence; 3. there was no relevant public interest only the personal interest of the plaintiff.

[5]

Decision on extension of time

Under s 61(2) of the Act, a certificate as to a medical assessment matter is conclusive evidence as to the matters certified, inter alia, in any assessment by a claims assessor. Leaving to one side the difficulty with conflicting certificates in this case, while the certificates stand the plaintiff will be unable to advance a claim for Griffiths v Kerkemeyer damages as modified by s 141B. I am not satisfied that a decision to extend time would prejudice the insurer in any relevant sense. It embarked upon, and pressed the applications before MAS knowing that Ms Scott disputed MAS's jurisdiction. If I extend time and Ms Scott is successful, the only upshot is that an invalid decision will be set aside and the rights and obligations of the parties will be determined according to law. This is not prejudicial in any relevant sense. On the other hand, assuming invalidity, Ms Scott will be deprived of an entitlement to claim that which she maintains is an integral part of her entitlement to damages. That is prejudice.
Ms Scott and her solicitors knew of the decisions at the time they were made or soon after. Advice was sought with reasonable promptitude, but unfortunately erroneous advice was apparently provided. Once the error became apparent in July 2014, reasonable diligence was exerted in commencing these proceedings. Such further delay as there was is explained by the plaintiff relocating to Perth and, the inconvenience of obtaining instructions in relation to technical matters over the telephone.
Undoubtedly, the claim has taken longer to reach finality than it should have, but the interests of justice favour extending time to bring the proceedings. The decisions impugned are not "final" and there is no evidence that any third or other party will be prejudiced by an extension of time. There is no particular public interest at stake other than the interest that administrative decisions ought to be made according to law. This principle of legality favours extending time.
In due course I will pronounce an order extending the time for bringing these proceedings to 20th November 2014.

[6]

Summary of argument

Mr Daley of Counsel, who appeared for Ms Scott, argued that the claim for an allowance for Griffiths v Kerkemeyer type damages was not treatment within the meaning of s 58 of the Act. The argument had two limbs, one broad, the other narrow. The broad basis was that the voluntary provision of domestic services that the claimant was unable to perform for herself by reason of the injuries caused by the motor accident is not treatment because treatment should be understood in its statutory context as restricted to services rendered by a trained, qualified or professional person and for which a claimant will or may incur a fee, or "financial loss". That is to say, matters the subject of special, rather than general, damages at common law. He referred to Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths) at p 287 [4.6.1]. He also invoked the ejusdem generis rule to the interpretation of the definition of "treatment" in s 42 of the Act.
The narrow argument, adopting a purposive interpretation of the relevant provisions of Chapter 3 of the Act was that treatment in s 42, and therefore s 58 was restricted to treatment giving rise to "expenses" of the type an insurer who had admitted liability was obliged to pay under s 83 of the Act.
Mr M.A. Robinson SC, who appeared with Ms J Gumbert for the insurer, pointed out that the expression "attendant care services" is defined in s 3 of the Act and should be understood in its defined sense throughout the Act. The definition was not conditioned by the requirement that the relevant services be paid or unpaid, or whether the provider was qualified or unqualified. The consideration that s 141B applies to attendant care services which may either be unpaid, or provided by an unqualified relative makes no difference to the meaning of the expression. The definition of "treatment" in s 42 extends to "the provision of attendant care services"; and it matters not whether they were paid, unpaid or provided by an unqualified relative. Section 58 accordingly applies to Griffiths v Kerkemeyer damages.

[7]

Decision about treatment

It is well to bear in mind that the focus of the parties in this part of the argument is upon the definitions of "attendant care services" and "treatment". Section 3 defines attendant care services in this way: 3 Definitions attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services Section 42 (forming part of Chapter 3) defines treatment as follows: 42 Definitions In this Chapter … treatment means: (a) medical treatment, or (b) dental treatment, or (c) the provision of rehabilitation services, or (d) the provision of attendant care services, or (e) the provision, replacement or repair of artificial members, eyes or teeth, crutches or other aids or spectacle glasses, whether or not at a hospital.
In Kelly v the Queen [2004] HCA 12; 218 CLR 216 McHugh J said at [98]: Purposive construction is the modern approach to statutory construction. Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a "strained construction" to be placed on the legislation. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. (Footnotes omitted) And at [103]: …..the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. McHugh J was in dissent but, with respect, the principles are not in doubt.
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] the plurality emphasised that the relevant provision being construed must be given a meaning "consistent with the language and purpose of all the provisions of the statute" (my emphasis). Their Honours stated "the process of construction must always begin by examining the context of the provision that is being construed" (footnotes omitted). However, the text itself must be given primacy. Context in the sense of historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text: Australian Education Union v Department of Education and Children's Service [2012] HCA 3; 248 CLR 1 at 13 [26]. I think it apposite to bring to mind the restraint cautioned by Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at 143: [5] …Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. …. [6] Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
The central provisions critical to the determination of this case are the provisions of Part 3.4 of the Act conferring jurisdiction on MAS to resolve medical disputes. A medical dispute "means a disagreement or issue" to which Part 3.4 applies: s 57 of the Act. I will set s 58 out in full: 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, (c) (Repealed) (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%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.
So far as material s 61 provides: 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. …. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. (10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury): (a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned, (b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment, (c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.
The question is whether a dispute about Griffiths v Kerkemeyer damages is a disagreement about treatment of the types referred to in s 58(1)(a) and (b). I have expressed the issue this way because an important part of the historical context of the Act is the continued operation of the enacted law and the common law relating to the assessment of damages: s 5(2)(a).

[8]

Griffiths v Kerkemeyer damages

The general law of damages in personal injury cases in force before its enactment was abrogated by the Transport Accidents Compensation Act 1987 (NSW) and restored by s 6 Motor Accidents Act 1988 (NSW) which is in the following terms: 6 Restoration of common law rights The law relating to a right to or a claim for damages or compensation or any other benefit (pecuniary or non-pecuniary) against any person for or in respect of the death of or bodily injury to a person caused by or arising out of a transport accident (within the meaning of the Transport Accidents Compensation Act 1987) occurring on or after 1 July 1987 shall be as if the Transport Accidents Compensation Act 1987 had not been passed and the common law and the enacted law (except that Act) shall have effect accordingly. The Motor Accidents Act, like the Act, modifies the law of damages, each according to its own terms.
The objects of the Act stated by s 5 include: 5 Objects of Act (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, Section 5(2) is in the following terms: (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (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, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability. From paragraph (b) of ss 5(2) one can deduce the clear intention, as I have said, that subject to the Act, the general law relating to the assessment of damages continues to apply. The principle established in Griffiths v Kerkemeyer is part of the continuing general body of law. The provisions of Chapter 5 of the Act may limit the measure of damages that may be recovered and modify the way in which they are to be quantified, but the entitlement continues to be sourced to the common law: ss 122, 123 and 141B of the Act; Grljak v Trivan Pty Ltd (In liq) (1994) 35 NSWLR 82 at 88 and Berowra Holdings Pty Ltd v Gordon [2006] HCA 32, 225 CLR 364 at [17] - [18].
As subsequent cases show, the decision in Griffiths v Kerkemeyer adopted as part of the common law in Australia the principle laid down by Megaw LJ in Donnelly v Joyce [1974] Q.B. 454 at 462 where a mother had given up work to nurse her severely disabled son. The defendant argued that absent payment for the mother's services the loss was not recoverable as special damage; that is to say the plaintiff had suffered no loss. Megaw LJ said: The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss. (My emphasis)
In Van Gervan v Fenton [1992] HCA 54; 175 CLR 327 Mason CJ, Toohey and McHugh JJ said (at 332 - 3): …it should now be accepted that the true basis of a Griffiths v. Kerkemeyer claim is the need of the plaintiff for those services provided for him or her and that the plaintiff does not have to show, as Gibbs J. held, [in Griffiths] that the need "is or may be productive of financial loss". (My emphasis.)
An important point emphasised by Mr Daley is that the need which represents the plaintiff's loss is a manifestation of common law general damages. Assessment of "the reasonable costs of satisfying that need being only a means of quantifying the damages to be awarded" and the distinction between special and general damages for the purpose of this head of claim "becomes unreal" (Griffiths by Stephen J at 179).
In Kars v Kars [1996] HCA 37; 187 CLR 354 Dawson J, who had dissented in Van Gervan, said (at 360 - 1): Once it is recognised, as it must be, at all events after the decision of this Court in Van Gervan v Fenton, that a plaintiff receives the value of services voluntarily provided by way of damages as compensation for the loss suffered by reason of the injuries which manifests itself in the form of a need for those services, and that the need does not have to be productive of financial loss, then cases such as the present one are taken outside the area of special damages, such as loss of wages or out-of-pocket expenses which, at least for the past, may be calculated simply by adding them up. True it is that the value of services provided or to be provided gratuitously to satisfy a need will ordinarily provide a guide in quantifying the damages to be awarded for the loss giving rise to the need, but those damages are general damages which are incapable of precise mathematical calculation and remain at large until quantified. (Footnotes omitted) …. That means that the voluntary provision of services to a plaintiff injured as a result of another's negligence is not to be regarded as relieving the plaintiff of expenses which he or she would otherwise have to bear. That is to say, the voluntary provision of services cannot be regarded as being in reduction of a financial loss sounding in damages. His Honour went on to categorise the provision of voluntary services as in the same class "as a benevolence": National Insurance Co of New Zealand Ltd v Espagne [1961] HCA 15; 105 CLR 569; Zheng v Cai [2009] HCA 52; 239 CLR 446.
It follows from all of this, in my judgment, that the provisions of s 141B merely regulate or modify the general law as to how the plaintiff's loss is to be valued or measured. That section does not change the applicable principle nor the juristic nature of the plaintiff's entitlement. This much is made clear by the provisions of s 141B(7) which is in the following terms: Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services.

[9]

Interpretation of s 58

The point of principle that must be borne in mind is that s 141B provides the measure of damages payable for a loss which is not financial in nature, but rather is represented by the plaintiff's accident created need. As the plurality accepted in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 at 14 -15, that need is the loss of capacity "to render … to [herself]" the "services" the plaintiff would have performed for herself in her uninjured state. I would not regard that as "treatment" within any ordinary or natural meaning of the word.
Turning then to the language of s 58(1)(a) and (b), as treatment is a defined term, applying Kelly, it is necessary to expand the language of its provisions by reading the words of the definition into them. Taking s 58(1)(a) as a starting point that paragraph reads as follows: "Whether the services that aim to provide assistance to Ms Scott with everyday tasks including (for example) home maintenance and domestic services provided or to be provided to Ms Scott were or are reasonable and necessary in the circumstances."
One sees immediately that the emphasis is upon the provision of particular services rather than the plaintiff's loss i.e. her incapacity to do what she would do for herself but for the injury. The phrase "reasonable and necessary" might be said to address need, but not directly. Reading the provision as a whole amplified by the definition, so far as it may relate to the circumstances, demonstrates that the emphasis is upon the assessment of the appropriateness of the provision of particular services, I repeat, not on any medical assessment of the plaintiff's loss.
The same, in my opinion, is true if one amplifies s 58(1)(b) by reference to the same adapted definition: the question becomes whether any such services relate to the injury caused by the motor accident. That question is whether the services relate to the injury; not whether the plaintiff's loss of capacity relates to the injury.
It is significant that not every medical question or issue that may arise for determination is within MAS's jurisdiction. Only those expressed in s 58 are. What is also clear, unlike a dispute under s 131 about the degree of a claimant's permanent impairment which is expressly and exclusively within MAS's jurisdiction (ss 132-3 of the Act), the power to make the assessment or evaluation under s 141B is not conferred upon MAS. In this regard, it is important to bear in mind that s 141B is within Chapter 5 entitled Award of Damages and also within Part 5.4 which makes various miscellaneous provisions regulating or modifying, inter alia, rules of law relating to entitlement of damages (see ss 138 - 141), the quantum of damages, and the type of orders a court may make (s 143 - 5).
In my view it is significant that s 141B(2) prescribes a different nexus between injury and compensation from either s 58(1)(a) or (b): neither reasonable and necessary, nor relates are utilised. Rather the test is: 141B Maximum amount of damages for provision of certain attendant care services (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.
I am not persuaded that Mr Daley's reliance upon the ejusdem generis rule is well made. As a grammatical aid to interpretation that "rule" applies when the general meaning of an expression is constrained by reference to specific surrounding language. As it was put in D.C. Pearce and R.S. Geddes Statutory Interpretation in Australia (75th ed, 2011, LexisNexis Butterworths) at p 135 [4.24] "it is another way of saying that words derive meaning from the context in which they appear". However, the noscitur a sociis rule may assist. This rule was described by Spigelman CJ in Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 391 as a "general principle of the law of interpretation" that the meaning of a word can be gathered from its associated words.
Adopting this approach, although the definition of attendant care services where it appears in s 3 is capable of applying to any service falling within the broad definition whether paid or unpaid, s 42 provides a somewhat different, more focussed context. There, it appears in an exhaustive list ("means") of matters, each of which would be provided by a qualified medical or paramedical professional, "whether or not at a hospital". That is to say, in that context, "attendant care services" relate to such services professionally provided. Where such services have been, or are to be, professionally provided, they fall within the definition of medical assessment matters in s 58. Professionally provided attendant care services, do not engage the Griffiths v Kerkemeyer principle. Rather they fall within the broader principles of the law of damages relating to special damages. Voluntary care, and care provided by unqualified relatives are not "treatment" for the purpose of s 58.
MAS fell into jurisdictional error by entertaining and deciding these matters, by providing the various certificates, because they lay wholly outside the limits of its function and powers: Craig v State of South Australia [1995] HCA 58; 184 CLR 163 at 177; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [71] - [72]. This occurred because it misconstrued the Act and thereby misconceived the nature of the function it was empowered to perform under it.

[11]

Other considerations

The approach I have adopted is consonant with the purpose and objects of the Act and of Part 3.4 in particular. When first enacted, s 58 identified five medical assessment matters, rather than the present three. In his second reading speech on the introduction to the Upper House of the Bill that became the Act, the Minister, (Mr Della Bosca) said: Part 3.4 provides an accessible means of getting early, quick and independent decisions on treatment, rehabilitation and care outside of the court system. All disputes over treatment, rehabilitation and care an injured person requires the degree of permanent impairment each person has or whether an injury has stabilised will be referred to the MAA which will refer to disputes to a relevant medical expert … … These reforms permit early, quick, objective decisions on medical issues to be made outside of the court system. The majority of motor accident matters do not involve difficult legal issues and are essentially a determination of an amount of compensation. While very few matters end up being decided in a court, over half of all motor accident claims involve claimants commencing court proceedings. Claims are prepared in adversarial basis with attendant high level of legal costs. (See Murdoch v Davis [2005] NSWCA 466; 44 MVR 415 at [17]).
When introducing the Motor Accident Compensation Amendment (Medical Assessments) Act 2000 (NSW) the Minister also said: I remind Honourable members that section 61 was a key component of the new scheme and entirely in keeping with the intent of removing the adversarial and litigious approach to medical decisions. In its place we have provided for decisions about treatment and impairment to be determined by way of independent medical assessment. This, of course, recognised that the system in which these decisions were made by judges following the presentation of medico-legal evidence was costly, time consuming and did not necessarily ensure that the decision was made on proper medical grounds.
When introducing the Motor Accident Compensation Amendment (Claims and Dispute Resolution) Bill 2007 (NSW) the Minister also said: The Bill clarifies a number of procedural issues relating to medical assessments including the processes for referral of disputes for a medical assessment and further assessment, the correction of obvious errors and assessment certificates, the conduct of review assessments and makes provision for issuing combination certificates in cases of multiple injuries which require assessment by more than one medical assessor to determine the extent of a person's permanent impairment. The Bill also refines the dispute jurisdiction of the Medical Assessment Service to focus on its core functions of dealing with disputes about treatment for motor accident injuries and assessment of permanent impairment (New South Wales Legislative Council, Parliamentary Debates (Hansard) 4th December 2007 at 4914). It was this Bill which reduced the medical matters from five to three.
The objects of the Act stated in s 5 include encouraging "early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities".
The circumstances of the present case show that the medical assessment of disputes about Griffiths v Kerkemeyer entitlements are likely to entirely defeat the purpose of providing early, quick, objective decisions on medical issues, decided outside the court system at little expense. The insurer's application runs over 120 pages from WF 30 to 150. The reply runs from WF 150 to 220. As I have already pointed out, the insurer suggested submitting a document covering 5 pages to the medical assessors which the officer of the authority was only able to whittle down to 12 questions over 2 pages. Six of those questions addressed the assessment of Ms Scott's need as opposed to the putative treatment.
The assessment process required the involvement of three medical assessors with different qualifications, each issuing two certificates. From lodgement of the application to the issue of the last certificate occupied a period of 5 months.
These considerations strongly suggest that Griffiths v Kerkemeyer claims were not intended to be assessed in this manner. That is to say, the interpretation contended for by the insurer leads to a wholly unreasonable operation of Part 3.4 of the Act which defeats the legislative purpose to the extent to which it may be permissibly informed by the Minister's statements to Parliament: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380.
Although not argued, it also seems to me, that the giving of separate certificates about the same matters by different assessors is impermissible. The Act expressly permits a dispute to be referred to one or more medical assessors: s 62 of the Act. However, those assessors to whom a medical dispute is referred are to give a certificate as to the matters referred for assessment (my emphasis). The use of the indefinite article in this context suggests to me that the assessors are to issue a single certificate in which they agree. That this is so is reinforced by a consideration of s 61(10) making provision, inter alia, for the giving of a combined certificate collating the separate certificates of more than one assessor required to assess the degree of permanent impairment.
I appreciate that other judges of this Division have proceeded on the basis that a Griffiths v Kerkemeyer dispute may be a medical assessment matter which can be referred to a medical assessor under s 60 of the Act: Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; 59 MVR 548 by Adams J; and Insurance Australia Group Ltd t/as NRMA Insurance Ltd v Motor Accidents Authority of NSW [2013] NSWSC 318; 63 MVR 203 per Harrison AsJ. However, I do not understand that the point raised by Mr Daley was argued in those cases. It is generally supportive of my approach that in Girgis (at [48]) Adams J said: It is important to note that the questions posed by paragraphs (a) and (b) of the subsection are narrowly phrased, pointing to "the treatment provided or to be provided" and "such treatment" [emphasis in original]. This is a reference, to my mind, to the treatment proposed by the contending parties and not in the abstract. If it had been intended to permit a Medical Assessor to certify as to the treatment which, in his or her opinion would be reasonable and necessary and related to the injury caused by the accident, this would have been a simple matter to provide. Its absence fortifies my view of the limited character of the "medical assessment matter" to which these paragraphs refer, in respect of the certification of which conclusiveness is ascribed. [My emphasis]

[12]

The procedural hurdles

It is not necessary for me to deal with Mr Daley's second line of attack, but lest I am wrong in my decision about his principal argument, it is appropriate that I set out my views at least briefly about what he termed the procedural hurdles.
In this regard, Mr Daley focused principally upon what he identified as the decision of the officer of MAS who carried out the "allocation review" of the application referred to in the letter of 2nd July 2013 (WF 221) and upon the provisions of the Guidelines. In particular he pointed out guideline 2.2 which permits an officer of MAS to reject an application as not duly made if the officer is satisfied that the application does not establish that it relates to what is referred to as "a treatment dispute", being the matters referred to in s 58(1)(a) and (b). He also pointed to guideline 8.2, requiring applications for treatment disputes to be made at an early time to promote the course of treatment and rehabilitation of the injured person. Guideline 8.3 requires the parties to have made "some attempt to resolve the specific treatment dispute in question" before assessment. Mr Daley argued that guideline 8.4 suggested that treatment disputes were to facilitate the observance by the insurer of its obligations under s 83 of the Act and certain requirements of the form of application are to the same effect.
I accept that the guidelines are in the nature of delegated legislation. But I also accept Mr Robinson's argument that the content of the guidelines do not govern the meaning of the Act.
I also accept the argument of Mr Robinson that the "decision" of an officer of the authority allocating a dispute for assessment is not amenable to an order in the nature of certiorari for reasons discussed by Brennan CJ, Gaudron and Gummow J in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 at [21] - [23], as that purely ministerial act does not have "a discernible or apparent legal effect upon rights". I accept the argument that, unlike decisions of the proper officer under s 62 of the Act, dealt with by the Court of Appeal in Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594 at [70], the decision at the preliminary stage of allocation is not sufficiently connected with the decision of the medical assessor to affect the legal rights and obligations of the parties. It is worth bearing in mind that the decision-making requirement imposed by guideline 2.2 is to reject an application if the officer is satisfied that it does not establish that it relates to a treatment dispute, rather than to accept an application.
I accept Mr Robinson's argument that whether the procedural error results in invalidity is itself a question of statutory interpretation: Project Blue Sky at [91] - [93]. Learned Senior Counsel also referred to s 80 of the Interpretation Act 1987 (NSW). I am not satisfied that non-compliance with the procedural provisions of the guidelines, as such, is intended to invalidate any subsequent certificate. The guidelines provide merely administrative machinery. Strict or even substantial compliance was not intended as a condition of the validity of a medical assessment certificate given under the Act.
To the extent to which the "decision" of 2nd July 2013 is impugned on the ground of inadequacy of reasons (cf Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480), I accept Mr Robinson's submission that the officer of the authority performing a purely administrative task was not under a legal duty to provide reasons, and the principle established by the Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 applies.
In the course of oral argument, Mr Daley argued that the existence of a genuine dispute is a jurisdictional fact which the Court can decide for itself. (15.35T). Mr Robinson accepted that this is so (29.30T). Learned senior counsel accepted that the existence of a dispute within the meaning of s 60 was a condition precedent to the exercise of the power of medical assessment.
A jurisdictional fact is "a criterion, the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker": Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120 at 139 [43]. A conclusion that a statutory condition is a jurisdictional fact is the end point of a process of statutory construction in which "all the normal rules of statutory construction apply": Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [39] by Spigelman CJ.
I have no doubt that the existence of a medical dispute is a condition of the valid exercise of MAS's power of assessment.
Medical dispute is defined by s 57 of the Act as meaning "a disagreement or issue" to which Part 3.4 of the Act applies. Section 58 says that Part 3.4 "applies to a disagreement between a claimant and an insurer about" medical assessment matters. Part 3.4 "also applies to any issue arising about" a medical assessment matter "in proceedings before a court or in connection with the assessment of a claim by a claims assessor": s 58(2). The provisions of Part 3.4 dealing with medical assessment, perhaps in contradistinction to the Victorian scheme, the subject of the High Court's decision in Kocak, provide a form of dispute resolution by medical assessment, itself a form of neutral expert evaluation. As the portions of the second reading speeches referred to above make clear, medical assessment is provided for the resolution of the disputes. It is not the medical assessment matter which is referred for medical assessment, rather it is a disagreement about a medical assessment matter which "may be referred … for assessment" by "one or more medical assessors": s 60 of the Act.
There may be many areas of disagreement about medical matters that may arise in the context of a claim for damages for personal injury suffered in a motor accident. As I have stated above, only certain disagreements may be referred for assessment. Medical disputes are disagreements under s 58(1), and issues arising about medical assessment matters in court proceedings or claims assessments under Chapter 4, Part 4.4 of the Act: s 58(2).
Ordinarily, whether such a genuine dispute exists will be obvious from the mere exchange of medical reports. If the claimant's doctor assesses her permanent impairment at greater than 10 per cent, and an insurer's doctor as less, there will be no room for doubt about the existence of a disagreement and little room to resolve it by negotiation. Things may not be so obvious in respect of treatment disputes. But the question of whether a dispute exists is not necessarily resolved by the position adopted by the parties medical advisors. The present case is somewhat unusual. Notably, no medical practitioner seemed to approach the question from a holistic point of view having regard to both the orthopaedic and psychiatric injuries. In general terms, Dr Bodel (WF 197), Dr Conrad (WF 201) and Dr Clarke (WF 212) support the existence of a need for domestic assistance. For the insurer, Dr Prior's view is obscure. At WF 103 he accepts that her orthopaedic injuries "and her amotivation due to her depression" "impact" upon "her capacity to perform domestic chores and duties". At WF 106 he said that Ms Scott "is not fit to perform duties as a cleaner/housekeeper as a result of her psychiatric diagnosis alone related to the motor vehicle accident". It is therefore hard to follow the view expressed at WF 104 that Ms Scott does not require personal or domestic assistance as a result of the motor vehicle accident from the psychiatric perspective. Professor Ian Harris (WF 121) said: Ms Scott is able to perform most activities of daily living including personal and domestic activities. She does require some help and has pain with vigorous activities. She does not currently require domestic assistance apart from some assistance from the family. Ms Scott's need for assistance is unlikely to change in the future. (My emphasis)
Reading this medical evidence as a whole, it is difficult to see where the dispute arises about some need for domestic assistance being reasonable and necessary and related to the accident. The question of assessment of any allowance in that regard under s 141B, forming part of the motor accident damages to be awarded, is quite another matter, and one which is not within MAS's jurisdiction.
In this context, the letters written by the insurer to Ms Scott's solicitors take on particular significance.
The existence of a medical dispute is a jurisdictional fact and the procedures for ascertaining the existence of that fact by MAS are set out in Chapter 8 of the Guidelines. As I have said, the application is required to be made "as soon as practicable after the treatment dispute arises": Guideline 8.2. "The parties must have first made some attempt to resolve the specific treatment dispute in question before the dispute will be assessed by MAS" (My emphasis): Guideline 8.3. Guideline 8.4 requires "evidence from the parties to substantiate that … the claimant has requested specific treatment and the insurer disputes" the claimant's entitlement. Viewed through the prism of the requirements of the guidelines, the correspondence from the insurer which I have set out above satisfies me that the insurer was doing no more than paying lip services to these procedural requirements. The letters are written with a view to engendering an impression in the mind of the reader that the guidelines had been complied with and a genuine dispute existed.
In determining whether a dispute exists, the Court ought to take a practical and realistic approach. This includes the everyday experience of courts dealing with personal injury claims, including motor accident claims, that an entitlement to Griffiths v Kerkemeyer damages calculated in accordance with statutory provisions like s 141B of the Act is very, very rarely conceded. Even so, assuming that such a matter may be made the subject of a "treatment dispute", contrary to my previous holding, that a relevant disagreement exists, must be objectively determined. This requires actual engagement of the parties, especially where liability is admitted. But the necessary content of the medical dispute is determined by the meaning of the Act rather than the guidelines.
Notwithstanding the content of the Guidelines, as I have already said, I am not of the view that the provisions of s 58 and 60 are restricted to cases in which a specific request for payment for treatment has been made. Liability may be wholly disputed and yet a party may wish to avail him, her or itself of the provisions of s 58 to obtain conclusive proof whether specific treatment, say an operation, is reasonable and necessary and related to the injury caused by the motor accident. I repeat, s 61(2) does not in express terms apply to s 83.
Having said that, in every case, it is necessary that the claim, which will usually be for expenditure for the particular treatment advanced, is seriously and maturely considered by the insurer, and rejected or disputed on grounds reasonably available. It is insufficient for the insurer to simply go through the motions of setting up the appearance of a dispute, as I am satisfied occurred here.
It may not take much to show the existence of a genuine dispute, but the task will be harder if the party generating the application has simply gone through the motions.
Assuming assessment of a s 141B dispute is available, I am not satisfied on the balance of probabilities that a genuine dispute existed in the present case at the time the insurer purported to refer the matter to MAS.

Scott v Insurance Australia Limited

At a glance

Court

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Judgment (14 paragraphs)

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Legislation Cited (7)

Cases Cited (30)

Cited By (2)