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[2026] ACTSC 33
Supreme Court of the ACT
2026-02-16
McCallum CJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: Stewart v Kirk Citation: [2026] ACTSC 33 Hearing Date: 25 September 2024 Decision Date: 16 February 2026 Before: McCallum CJ Decision: (1) The plaintiff’s originating application is dismissed Catchwords: CIVIL LAW – PERSONAL INJURY – Motor vehicle accident – application for defined benefits – where plaintiff seeks common law damages in addition to defined benefits under the Act – consideration of procedure for claiming for defined benefits and common law damages under the Act – where independent medical examiner assessed plaintiff’s WPI to be less than 10% – where plaintiff called compulsory conference following private medical assessment of WPI exceeding 10% – where private medical examiner also an independent medical examiner – whether WPI determination of private medical examiner satisfies pre-condition for bringing motor accident claim STATUTES – INTERPRETATION – s 239 Motor Accident Injuries Act 2019 (ACT) – meaning of “independent medical examiner” – meaning of “private medical practitioner” – whether private medical practitioner’s assessment a “WPI assessment” Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT) s 51 Motor Accident Injuries Act 2019 (ACT) ss 6, 14, 132, 137, 143, 145, 147, 148, 149, 150, 154, 155, 156, 157, 158(5), 159, 160, 162(1)(b), 167, 239, 258, Pt 2.3, Pt 2.6, Div 2.6.2, Div 2.6.3, Div 2.6.4 Cases Cited: ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 Parties: Jacquelyn Marie Stewart (Plaintiff) Nigel Kirk (First Defendant) Insurance Australia Limited trading as NRMA Insurance ( Second Defendant) Representation: Counsel D R Crowe (Plaintiff) B Kelleher SC w/ B Wilson (Defendants) Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendants) File Number: SC 175 of 2024 McCALLUM CJ: Introduction
Jacquelyn Stewart was injured in a motor vehicle accident on 2 July 2020 when Nigel Kirk drove his car through a red light causing it to collide with the car being driven by Ms Stewart. In those circumstances, Ms Stewart was entitled to “defined benefits” under the Motor Accident Injuries Act 2019 (ACT). The issue raised by these proceedings is whether she is also entitled to bring a claim for common law damages (referred to in the Motor Accident Injuries Act as “a motor accident claim”).
The Motor Accident Injuries Act came into force in the Territory on 1 February 2020. The Act regulates the recovery of damages by persons injured in motor vehicle accidents. It provides for five different kinds of “defined benefits” to be payable to such persons by the relevant insurer for the accident. The process for applying for such benefits is a highly-regulated regime in which claims are dealt with predominantly between the injured person and the insurer without the need for litigation in the courts. The Act does not abolish common law rights altogether but does impose a threshold for such claims, namely, that the injured person must have been assessed to have a “whole person impairment” (WPI) of at least 10% as a result of the accident. A further precondition for the prosecution of a claim for damages is that the parties must first have completed a series of steps calculated to achieve resolution of a claim before the commencement of any proceedings. Those steps include attending a “compulsory conference”.
The dispute raised by these proceedings concerns the process by which the required WPI assessment can be obtained in accordance with the Act. The Act creates a regime under which an injured person is first assessed by an “independent medical examiner” appointed by an independent medical examiner provider (IME provider). If the injured person does not agree with that assessment, they can in effect seek a second opinion from a “private medical examiner”.
Ms Stewart fell below the 10% threshold according to the independent medical examiner but a private medical examiner assessed her as coming in above the threshold. As it happened, that private medical examiner, Dr Ridhalgh, is also an independent medical examiner under the Act. Ms Stewart accordingly argues that she has obtained a whole person assessment of at least 10% in accordance with the requirements of the Act and so is entitled to bring a motor accident claim. The insurer maintains that the assessment by Dr Ridhalgh did not engage that entitlement because, in this case, he was not the independent medical examiner appointed to determine the assessment of WPI.
The dispute crystalised when Ms Stewart called a “compulsory conference” under s 258(3) of the Motor Accident Injuries Act. As already noted, the parties to a claim must have such a conference before an injured person can bring a court proceeding based on the claim: s 258(1). The insurer refused to attend the conference because it disputes that the precondition to bringing a court proceeding is met. The matter has been brought forward for the Court’s determination by Ms Stewart as an application under s 258(4) of the Act for the Court to set the time and place for the compulsory conference.
The insurer has responded by bringing an application to have Ms Stewart’s application dismissed pursuant to s 239(1)(a) of the Motor Accident Injuries Act. That is the section that imposes the requirement to have been assessed as having a WPI of at least 10% as a result of the accident before an award of damages can be made. It was common ground at the hearing that the two applications raise the same issue.
I have concluded that the insurer’s analysis of the statute is correct and accordingly that Ms Stewart’s application must be dismissed. This judgment explains my reasons for reaching that conclusion.
Circumstances in which the dispute arises
Following the accident, Ms Stewart made an application for “defined benefits” under Pt 2.3 of the Motor Accident Injuries Act. That application was lodged on 3 August 2020. On 8 September 2020, the insurer accepted liability for defined benefits from the date of the accident on 2 July 2020.
On 5 February 2021, the insurer informed Ms Stewart that she was entitled to make an application for “quality of life benefits” under Pt 2.6 of the Act. That application was lodged on 15 February 2021.
On 25 October 2021, the insurer referred Ms Stewart to an IME provider called MLCOA, (currently the only authorised IME provider in the Territory). Ms Stewart had requested that separate WPI assessments be made for her physical injury and her psychological injury, as allowed under s 150(2) of the Act. MLCOA appointed independent medical examiners to conduct each of those whole person impairment (WPI) assessments.
For her physical injuries, Ms Stewart was referred to Dr Seevnarain. In a report dated 8 December 2021, Dr Seevnarain made a diagnosis of a soft tissue injury to the lumbar spine which was attributable to the accident. He rated the injury as “DRE lumbar category 1” and accordingly assessed a 0% WPI for physical injuries.
For her psychological injury, Ms Stewart was referred to Dr Spear. He gave a diagnosis of “specific phobia” under the DSM-5 which was attributable to the accident. He assessed a WPI for primary psychological injuries of 5%.
On 16 December 2021, the insurer notified Ms Stewart of the outcome of the two assessments and offered quality of life benefits calculated under s 167 of the Act in the amount of $7,460.
Ms Stewart decided to obtain second WPI assessments, as allowed under s 158(2) of the Act. Her psychological injury was assessed by Dr Takyar, who gave a WPI assessment of 15%. Her physical injury was assessed by Dr Ridhalgh, who gave a WPI assessment of 14%. As noted at the outset of this judgment, at the time of the assessment, Dr Ridhalgh held the status of having been accepted as an independent medical examiner for the purposes of the Act, but he did not assess Ms Stewart in that capacity. Dr Takyar was not an independent medical examiner at the relevant time.
Ms Stewart provided her two private reports to the insurer, as allowed under s 158(5) of the Act. The insurer was then entitled but not required to provide the reports to MLCOA. It chose to provide the reports and they were submitted to the original independent medical examiners, who were then entitled either to affirm or increase their original assessments. Both doctors affirmed their original assessments. In the result, according to the independent medical examiners, Ms Stewart did not meet the 10% WPI threshold whereas, according to the private medical examiners, she did.
The insurer then made a “final offer” for quality of life benefits in accordance with s 160(3)(b) and s 162(1)(b). Following an application to the ACT Civil and Administrative Tribunal which was subsequently discontinued, the insurer made a further final offer on 6 December 2022. Ms Stewart rejected that offer.
Issue raised for the Court’s determination
Ms Stewart accepts that there is no point in seeking to compel the insurer to attend a compulsory conference if, on the proper construction of the Motor Accident Injuries Act, she has not been assessed to have a WPI of at least 10%. The application is brought on the premise that Dr Ridhalgh’s assessment qualifies as such an assessment.
Ms Stewart contends that, as Dr Ridhalgh is an “independent medical examiner” for the purposes of the Act, his assessment of a WPI of 14% engages her entitlement to bring a motor accident claim notwithstanding the fact that it was made on this occasion in the capacity of a private medical examiner rather that as the independent medical examiner appointed by MLCOA.
The issue raised for the Court’s determination is the correctness of that contention.
Legislative regime of quality of life assessment
The central provision in dispute is s 239, which is the springboard for a motor accident claim. Section 239(1)(a) provides that an award of damages in a motor accident claim can only be made if the injured person to whom the motor accident claim relates “has been assessed” as having a WPI of at 10% as a result of the accident. The ambiguity that is said to arise is that, because the requirement is expressed in the passive voice, it is not clear whether it is satisfied by an assessment of at least 10% by a private medical examiner who is also an independent medical examiner.
In order to appreciate s 239 in its statutory context, it is helpful to set out the pathway for making a quality of life benefits application. Chapter 2 of the MAIA creates a regime of “defined benefits” which are statutory benefits payable to persons injured in motor vehicle accidents. Relevantly, “defined benefits” include “quality of life benefits”, which are addressed in Pt 2.6. Section 132(1) provides that a person is entitled to quality of life benefits if the personal injury sustained in the motor accident results in at least 5% WPI. A quality of life benefits application may be made pursuant to Div 2.6.2. There is no dispute that the plaintiff satisfied the requirements to make such an application and that the insurer received and dealt with the application as required by Div 2.6.2.
Division 2.6.3 prescribes the regime in which WPI assessments are to be conducted and the various effects of different outcomes to those WPI assessments. A WPI assessment is defined by s 143 to mean an assessment of a person injured in a motor accident, to evaluate and report on a person’s injuries to determine the person’s WPI as a result of the injuries. A WPI report is a written report by an independent medical examiner, of the injured person’s WPI assessment that provides the examiner’s assessment of the injured person’s WPI and complies with the WPI assessment guidelines. A private medical examiner for an injured person means a doctor who meets the requirements under the WPI assessment guideline to conduct WPI assessments and has qualifications and experience relevant to the nature of the injured person’s injuries.
Under s 147, where an injured person is referred to an authorised IME provider for a WPI assessment under Div 2.6.2, that IME provider is required to arrange one or more independent medical examiners to undertake a WPI assessment of the injured person. Section 148 provides that both the injured person and relevant insurer must provide information to the IME provider and independent medical examiner that is relevant and reasonably required for the WPI assessment. Section 149 imposes the obligation on the independent medical examiner to undertake a WPI assessment in accordance with the WPI assessment guidelines. Importantly, the WPI assessment must be carried out by an independent medical examiner who satisfies the training requirements of the WPI assessment guidelines and is selected by an authorised IME provider to conduct the assessment, unless the injured person is permitted to arrange for a private medical examiner to undertake the WPI assessment, in which case the injured person can arrange for a private medical examiner to carry out a WPI assessment.
Who is to make the assessment that engages s 239(1)?
Ms Stewart argues that, by virtue of the assessment of Dr Ridhalgh, “an assessment has been conducted by an independent medical examiner under division 2.6.3 (Quality of life benefits—WPI assessment) and [she] has been assessed as having a WPI of at least 10% as a result of the accident” within the meaning of s 239(1).
The term “independent medical examiner” is defined in s 14 of the Act as follows: In this Act: independent medical examiner (or IME) means a doctor who, under an arrangement with an authorised IME provider, conducts— (a) medical examinations for WPI assessments …
It is common ground that the only authorised IME provider in the Territory is MLCOA and that, under an arrangement with MLCOA, Dr Ridhalgh is a doctor who conducts medical examinations for WPI assessments. The question is whether that was an assessment “conducted by an independent medical examiner under division 2.6.3” within the meaning of s 239(1).
In determining that question, neither party placed any particular reliance on the objects stated in s 6 of the Motor Accident Injuries Act. Unsurprisingly, those objects seek to balance benefit and cost; specifically, the competing interests of providing benefits to support people injured in motor vehicle accidents and keeping the costs of motor vehicle accident insurance at an affordable level. The dispute in the present case is not resolved by having regard to those broad objects. They can be invoked to put an argument either way.
What is clear is that the Act deliberately overlays the common law with a detailed statutory regime. There may also be discerned, in the imposition of a minimum threshold of impairment before common law damages may be awarded, an intention to regulate less serious claims outside the forum of adversarial litigation and so to reserve the resources of the Court for more serious claims. The plaintiff accepted that limiting the ability of injured persons to recover common law damages is one of the means by which the object of keeping insurance at an affordable level is achieved. However, she submitted that the construction for which she contends is far from “open slather” on common law claims as, on her construction, there would still be a requirement for the WPI assessment of at least 10% to be obtained from a person in fact engaged by MLCOA as an independent medical examiner for the purposes of the Act.
The plaintiff submitted that the legislature could easily have achieved the construction contended for by the insurer by adopting different language. So much may be accepted, as illustrated by the subsequent amendment. However, the constructional choice raised by the plaintiff’s argument seems unlikely to have been considered by the drafters of the legislation. Accordingly, the preferable approach is to resolve the ambiguity that existed before the amendment came into force by the application of orthodox principles of construction.
Orders
I will hear the parties as to costs.
I make the following order: (1) The plaintiff’s originating application is dismissed.
I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date:
Stewart
Kirk [2026] ACTSC 33
On 17 April 2023, Ms Stewart served a Notice of Claim dated 9 March 2023 and sought the insurer’s availability to participate in a compulsory conference pursuant to s 258 of the Act. On 9 May 2023, the insurer rejected the Notice of Claim. Following further correspondence, between the parties, Ms Stewart sought to bring the dispute to a head by calling a compulsory conference. The insurer declined to attend the conference.
When the independent medical examiner undertakes a WPI assessment of the injured person, the examiner must provide a WPI report about the assessment to the IME provider that arranged the assessment. The IME provider is subsequently required to provide that WPI report to the relevant insurer for the motor accident.
Different provisions are engaged depending on the WPI assessment that is made. Relevantly, s 155 is engaged where an injured person’s WPI is assessed as at least 5% but not more than 9%. Section 155(3) requires the relevant insurer in that case to give written notice that includes a copy of each report and to offer the amount of quality of life benefits payable for assessed WPI under Div 2.6.4. The written notice must also inform the injured person that, within 26 weeks of receiving the notice, the injured person must notify the insurer whether they accept or disagree with each report. If the injured person disagrees with a report and wishes to have a second WPI assessment carried out, the injured person is entitled to arrange a second WPI assessment at their own expense and provide the insurer with the second WPI report.
Where an injured person disagrees with the first WPI report and wishes to have a second WPI assessment carried out, whether under ss 154, 155, 156 or 157, the injured person may arrange for a private medical examiner to carry out the second WPI assessment. If exercised, that right engages s 149(b)(ii), which requires a WPI assessment to be carried out by a private medical examiner selected by the injured person. Importantly, a private medical examiner is distinct from an independent medical examiner. A private medical examiner for the purpose of Div 2.6.3 is defined by s 145 to mean a doctor who meets the requirements under the WPI assessment guidelines to conduct WPI assessments and has qualifications and experience relevant to the nature of the injured person’s injuries. The distinction from an independent medical examiner is that the independent medical examiner conducts medical examinations for WPI assessments under an arrangement with an authorised IME provider.
Where a second WPI assessment is undertaken, the private medical examiner must carry out the second WPI assessment in accordance with the WPI assessment guidelines and must prepare and provide to the injured person a WPI report about the second WPI assessment. The injured person is entitled (but not required) to provide a copy of the second WPI report to the relevant insurer. In turn, where the relevant insurer receives a second WPI report with a higher WPI assessment than in the first WPI report, the insurer is entitled but not required to provide the second WPI report to the IME provider and independent medical examiner who arranged and carried out the first WPI assessment and request the IME provider to arrange a review of the first WPI report.
In response to the second WPI report, the independent medical examiner may either affirm the original assessment of the injured person’s WPI or increase the assessment of the injured person’s WPI. The IME provider is then required to give notice to the relevant insurer of the affirmation or increase of the injured person’s WPI. Where the independent medical examiner increases the assessment of the injured person’s WPI, the relevant insurer is bound by the increased assessment.
Mr Kelleher SC who appeared with Mr Wilson for the insurer, emphasised the absence of any mention of a private medical examiner in s 159. It is the affirmation or confirmation of the independent medical examiner that binds the insurer.
If the relevant insurer receives a second WPI report of the injured person, the insurer “must decide a WPI to determine the final offer to make to the injured person”: s 160. Where the insurer has requested the IME provider to arrange for a review of the first WPI report in accordance with s 159, the final offer WPI must not be less than the affirmed or increased assessment of WPI stated in the notice of affirmation or increase: s 160(3).
The contest raised by the present applications is that s 239 does not state in terms whether the requirement to have “been assessed as having a WPI of at least 10% as a result of the accident” is engaged by an injured person being assessed with a WPI of at least 10% by a person who is both an independent medical examiner and a private medical examiner both (as submitted by the plaintiff) or only by an assessment by the independent medical examiner to whom the assessment is referred by the IME provider (as submitted by the defendant). Proper approach to the construction task
Ms Stewart’s claim is governed by s 239 as in force on the date of the accident. The section has subsequently been amended in terms that more clearly reflect the insurer’s interpretation. Section 239(1)(a) now reads: … (a) has made a quality of life benefits application under division 2.6.2 (Quality of life benefits—application) and either— (i) an assessment has been conducted by an independent medical examiner under division 2.6.3 (Quality of life benefits—WPI assessment) and the person has been assessed as having a WPI of at least 10% as a result of the accident…
However, as acknowledged in argument at the hearing, the fact of the amendment does not greatly assist in determining what the section meant before. The amendment might have been intended to effect a deliberate change but equally it might have been intended to make clear what was intended all along.
In any event, the present task is to construe the section as in force at the relevant time. At the time of the accident, as already explained, the section was less clear as to how a WPI assessment of at least 10% could be obtained. Section 239(1) relevantly provided: (1) An award of damages in a motor accident claim may be made only if the injured person to whom the motor accident claim relates: (a) has made a quality of life benefits application under division 2.6.2 (Quality of life benefits—application) and has been assessed as having a WPI of at least 10% as a result of the accident…
Put shortly, Ms Stewart contends that the words “has been assessed” are broad enough to comprehend assessment by any person who is in fact an independent medical examiner, even if the assessment was not made in that capacity on the occasion in question. The insurer contends that the words “has been assessed” refer to the final assessment of the independent medical examiner appointed by the IME provider for the purpose of the particular claim made, which assessment is reached only at the end of the comprehensive process provided for under the Act.
Those competing arguments are resolved by the application of orthodox principles of statutory construction. The High Court recently reiterated those principles in ENT19 v Minister for Home Affairs [2023] HCA 18; 278 CLR 75 where the majority (Gordon, Edelman, Steward and Gleeson JJ) said at [86]: The starting point for the ascertainment of the meaning of a provision is its text, while at the same time regard is to be had to its context and purpose. … Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense, including by reference to legislative history and extrinsic material. (Footnotes omitted.)
As I will explain, I consider that, while the text of the section is capable of supporting Ms Stewart’s construction, when the text is read in context of the regime created by the Act as a whole, it is clear that the intention was to confer upon the independent medical examiner appointed in the particular case the task of making the WPI assessment that would determine whether the threshold for a motor vehicle accident claim was met.
The insurer submitted that, while the construction contended for by the plaintiff may be available as an attractive interpretation of the section on a superficial reading, the plaintiff’s argument fails to consider the text of the section having regard to its context and purpose.
The plaintiff’s application was for “quality of life” benefits, one of the five kinds of benefits provided for under the Act. As explained in detail above, the process for making an application for quality of life benefits is governed by Div 2.6.2 of the Act. The insurer noted that the operation of that division in turn necessarily leads to a consideration of Div 2.6.3, which provides the machinery provisions for the determination of a quality of life benefit. Section 137(3)(a) provides that a quality of life benefits application must “request that the relevant insurer refer the injured person to an authorised IME provider for a WPI assessment”.
Section 137(4) is important. That section provides: (4) To remove any doubt, if a person makes a quality of life benefits application— (a) the relevant insurer must refer the injured person to an authorised IME provider for a first WPI assessment in accordance with this division; and Note If a person has injuries to more than 1 body system, the WPI assessment of each body system may be carried out by different medical examiners or combined in accordance with the WPI assessment guidelines (see s 151). (b) the injured person may arrange for a private medical examiner to carry out a second or subsequent WPI assessment only in accordance with section 158 (Second WPI report).
The section thus distinguishes between a first WPI assessment provided following referral to the IME provider and a second or subsequent WPI assessment arranged by the injured person.
Also important is what happens next. As already explained, ss 154 through to 157 specify which of four different paths the insurer is required to take according to whether the percentage of WPI reported following the first WPI assessment is less than 5%, between 5% and 9% or 10% or more. Each section contemplates the making of an offer (this is mandatory except where the WPI is less than 5%). In the present case, the WPI assessment of 5% meant the insurer had to take the steps specified in s 155(3). This included a requirement to offer the plaintiff the amount of quality of life benefits payable for their WPI under Div 2.6.4. Under each section, if the injured person accepts the offer, the claim is finalised and the insurer must pay the amount offered.
The seeking a second WPI assessment is optional. Where a second assessment is sought, it may be carried out by a private medical examiner. The private medical examiner must prepare a report and give it to the injured person, but the injured person has a choice as to whether to provide it to the relevant insurer: s 158(5). As submitted by the insurer, it is significant that the second WPI assessment is not binding on the injured person.
If the second WPI assessment is higher than the first, the insurer may give it to the IME provider and original independent medical examiner and request a review of the first WPI report: s 159(2). However, that is not mandatory
The last three provisions of s 159 are critical. Section 159(4) provides that the independent medical examiner may, in response to the second WPI report, either affirm the original assessment or increase it. Significantly, as submitted by the insurer, the section offers a binary choice, either to affirm or increase the original assessment. The insurer noted that the original independent medical examiner is under no obligation to accept the second WPI assessment or to increase the assessment to at least 10%. Rather, the statute requires the original independent medical examiner to give effect to their independent medical opinion.
Section 159(5) requires the IME provider to notify the relevant insurer of the outcome of the independent medical examiner’s review. Finally, s 159(6) provides that, if the independent medical examiner increases the assessment of the injured person’s WPI, the insurer is bound by the increased assessment. The insurer submitted that, on the plaintiff’s construction, those provisions would have no work to do.
In summary, the initial WPI assessment is binding on both parties, subject to the injured person’s right to dispute it. If the injured person seeks a second assessment, that is not binding on either party, but if the injured person chooses to provide it to the insurer and the insurer chooses to provide it to the initial independent medical examiners for review and the independent medical examiners increase the assessed WPI as a result, the increased assessment is binding.
It may be seen from this analysis that the only role played by the second WPI assessment is to afford an opportunity to the injured person to persuade the independent medical examiner to increase their WPI assessment in light of the assessment of a fellow professional. The insurer is not bound by the second assessment; the insurer can only be bound by a revised upwards assessment of the original independent medical examiner. That contextual analysis militates against the construction of the Act contended for by the plaintiff. The result would be that the WPI assessment of the private medical examiner would bind the insurer for the purpose of ascertaining whether the statutory precondition for an award of damages is met but for no other purpose. As submitted by the insurer, the statutory scheme contemplates that the final WPI assessment will emanate from the independent medical examiner first appointed by the IME provider.
The insurer noted that the right to a second WPI assessment is a “contingent right” in that it is only after the insurer has obtained the first WPI assessment and served the WPI reports together with an offer that the option for an injured person to disagree with that assessment and obtain their own report arises. The insurer submitted, and I accept, that there is no independent provision for an injured person to seek to obtain a private medical examiner's assessment outside those provisions.
The insurer submitted that, as there is “no independent right” to obtain a second WPI assessment from a private medical examiner, that report “must been seen as a part of the overall process within Division 2.6.3 and the legal use of that report is only explicable within the overall scheme and purpose of the Division”. Whether or not the word “right” is apt in this context, I accept that the role of such a report in the statutory scheme is limited in the way I have explained. As submitted by the insurer, the statutory scheme leaves no room for a construction according to which a second WPI assessment obtained by an injured person will be determinative as to the assessment of WPI that will govern the determination of an application for quality of life benefits. Rather, the scheme created by Divs 2.6.2 and 2.6.3 confers the authority to determine the degree of WPI on the independent medical examiner appointed by the IME provider at the request of the insurer. The injured person’s remedy in respect of that determination is administrative review.
For those reasons, I accept the construction contended for by the insurer. The fact that Dr Ridhalgh is an independent medical examiner does not elevate his assessment to the place of the assessment of an independent medical examiner appointed by the IME provider to make the first WPI assessment.
In light of that conclusion, it is not necessary to determine a separate argument put by the insurer based on s 51 of the Civil Law (Wrongs Act) 2002 (ACT).