Stone v Allianz Australia Insurance Ltd

Background, evidence and Determination of Ms Elliot on 24 March 2017

1. Mr Stone claimed damages for multiple injuries he sustained in a motor vehicle accident on 28 October 2008. He had a number of medical assessments, including an unfavourable assessment by a Review Panel on 23 March 2016 who determined his left shoulder injury was not causally related to the accident and assessing his whole person impairment as only 3%. Unless he can demonstrate whole person impairment of greater than 10%, there can be no award of money to him reflective of non-economic loss (s 131 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act")).
2. On 22 December 2016, Mr Stone lodged an application for a further medical assessment pursuant to s 62 of the Act. Annexed to that application was the Medical Assessment Service Review Panel certification of 23 March 2016, a statement and submissions of the claimant dated 14 November and 22 December 2016 respectively, as well as clinical notes and reports of Dr Makarious dated September and October 2016. It was argued that this material met the requirements of s 62 as "additional relevant information about the injury" that was "capable of having a material effect on the outcome of the previous assessment" (s 62(1A)).
3. The third defendant, Proper Officer Ms Elliott ("Ms Elliott"), dismissed Mr Stone's application for a further medical assessment and set out her reasons for her decision in her Determination dated 24 March 2017. She was not satisfied that the further documentation was capable of having a material effect on the outcome of the proceedings because, amongst other things, the information was not "additional" in the sense of documents not previously in the possession of the party relying on them, and was not of a different kind in the sense of dealing with different issues than the opinions already expressed and considered.
4. Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 ("Singh") is cited in the Determination as authority for those propositions. That decision was also referred to in the introductory paragraphs of the Determination under the heading "Decision" as part of the "case law considered in making the decision".

The basis for seeking judicial review

1. Counsel for Mr Stone, in their written submissions filed on 27 July 2017 argued that Ms Elliot's Determination is wrong because she applied "sidelined" case law and failed to take into account properly or at all the principles to be applied as set out in the decision of Jubb v Insurance Australia Ltd [2016] NSWCA 153 ("Jubb"). It was argued that as a result of these failures, there is both jurisdictional error and error on the face of the record.
2. The summons identifies the following errors: 1. Wrong application of the principles due to the failure to apply Jubb but instead incorrectly applying the approach discussed in Singh and Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 ("Alavanja"). It is evident that this incorrect approach was clearly material to the decision made; 2. Failure to make findings supported by a statement of reasons showing the path of reasoning to the findings that s 62 requirements had not been met by Mr Stone; 3. Failing to provide a statement of reasons showing the path of reasoning as to why Mr Stone had not established the requirement under s 62; 4. Failing to engage with the clearly articulated argument was set out in the written submissions filed with the s 62 application; 5. Failing to identify how and why the principles in Jubb did not apply to this case and why Singh and Alavanja were to be applied; and 6. Reaching a decision that was irrational, illogical and unreasonable.
3. In their written submissions, counsel for Mr Stone argued that Ms Elliott did not sufficiently or at all examine her residual discretion and because of incorrect application of principle, exercised the power in a "binary preclusory type manner" and not in the "permissible discretionary type manner" encompassed in the residual discretion stage.
4. It was argued that I could not be satisfied that Ms Elliott's exercise of the s 62 power was not influenced by application of the incorrect principles and that the structure and content of the Determination seemed to suggest that she had in fact reached her conclusion influenced by incorrect principles.

Decision

1. Singh was a decision of Rothman J that supported what is described later by the Court of Appeal in Jubb (per Gleeson JA, with whom Meagher and Payne JJA agreed) as "supporting a constrained approach to the meaning of 'additional information'" in the context of s 62 of the Act, [72]. Gleeson JA described Singh as proceeding on an incorrect approach to the precondition in s 62(1A). His Honour expanded on what he considered to be the error of Rothman J describing it as proceeding on the basis that the precondition to a referral for further assessment in s 62(1A) was a jurisdictional fact and accordingly a matter for the determination by the court as an objective fact [74]. That approach was wrong for the reasons articulated by the Court of Appeal in Rodger v De Gelder [2015] NSWCA 211, QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480. Consequently, Gleeson JA concluded, Rothman J's reasoning in Singh regarding "additional relevant information" must be treated with some caution.
2. Gleeson JA outlined at [79] the need to keep distinct the satisfaction of the precondition in s 62(1A) which is a matter for the proper officer's subjective opinion as opposed to the discretion given to the proper officer in s 62(1)(a). If this distinction is not kept in mind, there is, he said: "…a risk of conflating the considerations to be balanced by the proper officer in exercise of the discretion given in s 62(1) and the formation of the proper officer's opinion required by s 62(1A)."
3. Gleeson JA concluded that the Singh approach was "open to doubt" and that the fact that material was in the possession of a party at the time of the original assessment is a consideration to be balanced by the proper officer in the exercise of the discretion given in s 62(1).
4. Gleeson JA also doubted the correctness of the proposition set out in Singh that further medical opinion cannot constitute additional information unless it is based on a change in the claimant's underlying symptoms and circumstances, because that would "seem to conflate the separate grounds referred in s 62(1)(a) of 'deterioration of the injury' and 'additional relevant information'". He continued (at [80]): "…it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of the reasons for the opinion expressed, constitute additional information."
5. Whilst Jubb does not amount to a whole-scale overruling of Singh, it certainly amounts to a relevant correction of those salient principles.
6. I accept the arguments put forward on behalf of Mr Stone are made out in respect of the apparent reliance by Ms Elliott on Singh. MS Elliot states that she took into account Singh and directly applied it in paragraphs [21] and [43] of the Determination.
7. Error that requires the issue to be re-determined has been appropriately conceded by each defendant. It is evident on the face of the Determination that Ms Elliott, in rejecting the Mr Stone's application, placed reliance upon Singh. She made no reference to the nuanced approach to s 62 set out in Jubb. No reference at all was made to Jubb in her Determination.
8. The orders sought in the Summons are appropriate. The question of costs has been resolved as part of the agreed position between the parties.

ORDERS 1. A declaration pursuant to the Supreme Court Act 1970 (NSW) s 69 that the determination and statement of reasons issued by the second defendant constituted by the third defendant on 24 March 2017 is void and of no effect; 2. The determination and statement of reasons issued on 24 March 2017 is set aside; 3. The matter is remitted to the second defendant for determination by a different proper officer, according to law; and 4. Each party to pay their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2018