Wilkie v Motor Accidents Authority of New South Wales & Anor

CATCHWORDS : Proper Officer - reasons - ground of additional relevant information - denial of natural justice - discretionary considerations (including alternative statutory remedy)

Motor Accidents Compensation Act 1999 (NSW) LEGISLATION CITED : Supreme Court Act 1970 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 CASES CITED : Campbelltown City Council v Vegan [2006] NSWCA 284. Osmond v Public Service Board [1984] 3 NSWLR 447 Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149

Melissa Wilkie PARTIES : Motor Accidents Authority of New South Wales Glen Robert Horder

COUNSEL : Ms S. Norton SC / Ms E. E. Welsh (Pl) Mr G. J. Bellew SC (2nd Def)

Bryden's Law Office (Pl) SOLICITORS : Crown Solicitor (1st Def) (submitting appearance) TL Lawyers (2nd Def)

LOWER COURT JURISDICTION : Motor Accidents Authority

• 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10477/07 Melissa Wilkie v Motor Accidents Authority of New South Wales & Anor

JUDGMENT 1 HIS HONOUR: On 30 September 2001, the plaintiff was involved in a motor vehicle accident and suffered injury. On 17 June 2003, she served a claim form on the insurer of the second defendant. A medical dispute was referred for assessment to a Medical Assessor (the first Assessor). He had supporting material from the plaintiff but apparently no medical reports from the second defendant. The Assessor conducted the assessment and, on 3 June 2005, issued a Statement of Reasons, together with a Certificate of Determination. He assessed the injury as giving rise to a whole person impairment greater than 10% (34%). 2 On 10 February 2006, the plaintiff was examined by Dr Lim (on behalf of the insurer). He provided a report of 23 February 2006. He assessed the whole person impairment at 4%. 3 On 6 March 2006, the insurer made application for a review of the decision of the Assessor (pursuant to s63 of the Motor Accidents Compensation Act 1999 (NSW) (the Act)). The application was rejected. 4 However, an application for a further medical assessment, made pursuant to 62(1) of the Act on 9 March 2006, was successful (on 15 June 2006). 5 Each of the applications was accompanied by an Annexure A. Each such annexure was in the same terms. The Annexure A commenced as follows:- "The Insurer relies upon the report of Dr Lim dated 23/2/06. He has reviewed the MAS report of Dr Thompson, and has concluded the report is incorrect in a number of aspects. Dr Lim states that:"

The Annexure A then proceeded to list the competing views of Dr Lim on various aspects of the assessment made by the first Assessor. 6 The application for review also contained a copy of a report from Dr Lim dated 23 February 2006. The application for further assessment also contained an Annexure B and two medical reports from Dr Lim (dated respectively 20 February 2006 and 8 March 2006). 7 The decisions in respect of each of the applications were made by the Proper Officer. The task of making such a determination is imposed on the Proper Officer by Chapter 8 of the Medical Assessment Guidelines. In determining whether to refer a matter, the Proper Officer is to have regard to the matters set forth in s62(1)(a) and the objects of the Act. The Proper Officer may allocate a matter referred for further assessment to the original Assessor if available, or to a different Assessor. 8 The Chapter, inter alia, also contains the following:- "8.4 Where the Proper Officer determines that a matter is not suitable for further assessment, the Proper Officer shall reject the application and issue a notice setting out brief reasons for the decision within 5 days of the allocation review under clause 11.1. 8.5 Where the Proper Officer decides to refer a matter for further assessment, the Proper Officer shall determine how the application is to proceed and, in particular, determine an appropriate medical assessor or assessors to conduct the further medical assessment, having regard to: 8.5.1 the application and any reply; and 8.5.2 all injuries listed on the original MAS forms and any additional injuries listed in the application and reply; and 8.5.3 the nature of the deterioration of the injury or the additional relevant information submitted by the parties; and 8.5.4 the requirement that in permanent impairment disputes, impairment resulting from a physical injury is to be assessed separately from any impairment resulting from psychiatric or psychological injury." 9 The letter, dated 15 June 2006, from the Motor Accidents Authority of New South Wales (the Authority) contained, inter alia, the following:- "The application, the reply and all supporting documentation in this matter have been considered. The Proper Officer has determined that this application is eligible for a further medical assessment under section 62(1)(a) of the Motor Accidents Compensation Act 1999. The application has been accepted because additional information relevant to the injuries has been provided. All injuries will be reassessed in accordance with 8.6.1 of the Guidelines. Pain, disabilities and undefined conditions will not be assessed. As the matter was lodged prior to 1 May 2006, the Proper Officer has waived Section 8.2.3 of the Medical Assessment Guidelines. All other provisions of the new guidelines apply."

10 A further assessment was then conducted by the second Assessor (James McLeod). On 10 August 2006, the second Assessor issued his Statement of Reasons (the reasons) and Certificate. He assessed the whole person impairment at 5%. 11 On 24 January 2007, the plaintiff brought proceedings in this Court. The Summons contains a heading "Relief Claimed". Beneath that heading appears what are presented as Grounds of Appeal. In reality, a claim for various declarations and orders appears thereunder. In substance, it is sought to have the original assessment declared to be valid and binding and the further assessment to be either set aside or rejected. 12 The Summons was heard on 26 September 2007. The parties were represented by Senior Counsel. There have been written submissions, supplemented by oral argument. 13 The plaintiff is seeking judicial review pursuant to s69 of the Supreme Court Act 1970 (NSW). The Court has a discretionary power to grant such relief. 14 Although the plaintiff opposed the application for further assessment, she did not immediately proceed to challenge the granting of the application by the Proper Officer. Instead, she underwent the further assessment (which involved a medical examination of her) and allowed it to be made. 15 In these proceedings, she now seeks to challenge the decision of the Proper Officer, which referred the matter for further assessment, and the assessment made by the second Assessor. The jurisdiction is one of review (and not one of appeal) and is available either where there is error of law or jurisdictional error. 16 There appear to be a number of bases on which relief is sought. There is a basis put under the heading of "lack of procedural fairness" (a failure to give reasons by the Proper Officer for her decision is alleged). Another basis is misdirection as to the requirements of s62(1) (this looks to the meaning of the words "additional relevant information about the injury" and has been referred to as the construction point). There is also an additional category, which is presented under the umbrella of denial of procedural fairness (it relates to how the assessment was conducted). 17 The Court has been referred to various provisions of the Act. These provisions were said by the plaintiff to have relevance to these proceedings. 18 The objects of the Act are set forth in s5. Attention was directed to that which was to provide compensation for compensable injuries and to encourage early resolution of claims. 19 Section 6 is headed "Interpretation and application of Act by reference to objects". The provisions of the section are as follows:- "6 Interpretation and application of Act by reference to objects (1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned." 20 Part 3.4 of the Act deals with "Medical assessments". It is comprised by ss57-65. 21 I have earlier mentioned s62(1) and (2). The provisions thereof are as follows:- "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency." 22 I have also earlier mentioned s63. It enables the making of an application for the referral of a medical assessment to a Review Panel. An application for the referral of a medical assessment to a Review Panel may only be made on the grounds that the assessment was incorrect in a material respect. The plaintiff has chosen not to pursue that statutory remedy. Instead, it has brought these proceedings. 23 Sections 80 and 81 deal with duties had by the insurer (including the general duty to try to resolve the claim expeditiously).

24 Before proceeding further, it is appropriate at this stage to make certain observations concerning the Act and comparable legislation. The Act is No.41 of 1999 and is presented as an Act to establish a new scheme of compulsory third party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents; to amend the Motor Accidents Act 1998 and other Acts and for other purposes. The comparable legislation is the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act). It is Act No.86 of 1998 and is presented as an Act to provide for the effective management of work-related injuries and injury compensation for workers in respect of such injuries; and for other purposes. 25 Whilst the two Acts have their similarities, the surprising aspect of their respective contents is the use of so much different statutory language. I shall refer to certain of the similarities and differences in due course.

26 Before proceeding to address the various arguments that have been litigated by the plaintiff, it seems to me that I should first address the issue which I regard as being decisive in this case (it was an issue ventilated by the second defendant). 27 It seems to me that these proceedings can be disposed of by having regard to discretionary considerations. The plaintiff stood by and allowed the further assessment to be made. She did not decide to take action in respect of her complaints until after she had received a result which brought about a substantial reduction in the assessment of the whole person impairment. By operation of statute, the Certificate of the second Assessor prevailed over its predecessor. She had an adequate alternative statutory remedy (by way of review to a Review Panel pursuant to s63) to challenge the further assessment. Rather than pursue the statutory remedy, she has come to this Court. In the circumstances, I do not consider that the Court should exercise the discretionary power that it has in her favour (see, inter alia, Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501). 28 The alternative statutory remedy was one that would have offered her quicker determination. It could have been brought immediately following the decision of the second Assessor and the review may have been concluded well before the bringing of these proceedings (there was in fact a delay of about five months before the plaintiff brought these proceedings). A remedy by way of judicial review may still have been available to her in the event that she was unhappy with a decision from the Review Panel. 29 Further, it seems to me that the review process was a more satisfactory remedy. The complaints of the plaintiff concerning the second assessment involved allegations of error in the assessment process and concerned, inter alia, matters which were dependant upon particular or technical knowledge of medical specialists (including whether or not the Medical Assessment Guidelines had been met). I shall briefly mention some of these matters in due course. 30 Whilst what has been said suffices to dispose of these proceedings, in deference to what has been argued by Counsel, I will briefly deal with other matters that were argued. 31 However, before proceeding further, I should observe that I am not satisfied that the decision of the Proper Officer failed to take into account relevant objects of the Act. 32 It was common ground that the Act itself did not impose any statutory obligation to give reasons. The case for the plaintiff is that such an obligation should be imported and reference was made to Campbelltown City Council v Vegan [2006] NSWCA 284. 33 In this case, the function performed was administrative rather than judicial. In these circumstances the authorities reveal that, generally speaking, no such obligation can be imported from the general law. The justification for an obligation to give reasons is derived from the right of appeal granted in relation to an exercise of judicial power. As was said by Basten JA in Vegan, at paragraph 106, the decision in Osmond v Public Service Board [1984] 3 NSWLR 447 "remains the law in this country". 34 In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 the similar position of the Registrar, or his or her Delegate, in the regime established by the WIM Act (s327) was considered by the Court of Appeal. It was held that there was no need for reasons in respect of a decision which allowed an application to appeal to proceed. The reasoning relied on was that such a decision did not finally determine rights. What was being done was to allow the matter to go forward to a body that did make a final determination (the Appeal Panel). 35 I have earlier set out clauses 8.4 and 8.5 of the Medical Assessment Guidelines. It seems to me that these provisions evince a clear intention that the Proper Officer is not obliged to give reasons where a decision is made to refer a matter for further assessment (a notice setting out brief reasons for the decision is required only where the application is refused). 36 For all these reasons, I consider that the Proper Officer was not obliged to give reasons for her decision. 37 I leave aside the question of whether or not sufficient reasons were in fact given in this case. It seems to me to be arguable that the second paragraph of the letter from the Authority did in fact sufficiently disclose the Proper Officer's reasoning process (it can be inferred that the material contained in the application was determined to meet the requirement of "additional relevant information about the injury").

38 I now turn to the construction point. Section 62(1)(a) restricts the referral to the grounds of the deterioration of the injury or additional relevant information about the injury. Section 63 restricts "the grounds" to "the assessment was incorrect in a material respect". The Act does not define the words "additional relevant information about the injury". 39 Counsel for the plaintiff has drawn to the attention of the Court that which appears in the second reading speech ("further medical assessments will be allowed if a persons condition deteriorates"). Despite what was said in the speech, the provision itself presents what appears to be intended as two alternative grounds. I consider that it was intended that the words "additional relevant information about the injury" be given meaning rather than be treated as mere surplusage. 40 Accordingly, I am of the view that the legislature had in mind the providing of two separate and alternative grounds on which referral for a further assessment may be made. One concerns deterioration of the injury and the other concerns additional relevant information about it. The language of the latter is cast in the most general terms. 41 In considering this question, it seems to me to be helpful to compare the language of the Act with comparable provisions contained in the WIM Act (such as s327). Before devoting attention to specific provisions of that section, I will briefly mention the general scheme of it. 42 This section enables the making of an application for an appeal to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that at least one of the grounds for appeal has been made out. There are four specified grounds for appeal (including deterioration of the worker's condition and availability of additional relevant information). The other grounds of appeal are incorrect criteria and demonstrable error. The Registrar may refer the medical assessment for further assessment as an alternative to an appeal against the assessment where the grounds of deterioration of condition and availability of additional relevant information are made out (subs (6)). The appeal is by way of review by an Appeal Panel (as opposed to a review by a Review Panel).

43 The plaintiff also submits that the information should be restricted to that which was not available at the time of the first assessment or that which could not have been reasonably obtained before it. This is an argument that has its attraction. However, the second defendant argues that this cannot be so by reason of what appears in s327(3)(b). It contains, inter alia, the following:- "(3) The grounds for appeal under this section are any of the following grounds: (a) … (b) availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before that medical assessment), …"

44 The second defendant says that if the legislature had intended the words "additional relevant information", contemplated by s62 of the Act, to be so restricted in meaning, it would have said so. This argument has considerable force. Whilst it might be thought to be surprising that the words were intended to be given a different meaning in each of the two Acts, regard must be had to the respective contexts in which they appear. What is provided for in s327(3)(b) is both a ground for appeal and for further assessment. Apart from the additional words in parenthesis, the language of the ground otherwise differs from that found in s62 ("availability of additional relevant information"). It may be added that a comparison of the respective contents throws up many differences. 45 Whilst what is said on behalf of the second defendant appears to be the better view, it is unnecessary for me to express a final view in this case. The additional relevant information relied on by the second defendant only came into being subsequent to the first assessment and the contents of the report of Dr Lim could not have been prepared prior to that assessment. 46 This information concerned the correctness of what had been done in the first assessment and the reliability of that assessment. It may be added that the Court has been told that the obtaining of such a report subsequent to an assessment and its use in an application for referral for further assessment is not uncommon.

47 The statutory prescription is one of the "information" needing to be additional to that which was before the Assessor in the preceding assessment. Also, it would have to be relevant to the assessment process and be about the injury. 48 It is probably unhelpful to make any attempt to further define the words "additional relevant information about the injury". It is perhaps better to approach the question of its meaning on a case by case basis. 49 In the present case, there was additional information about the injury suffered by the plaintiff and it was relevant to the assessment process.

50 Returning to the comparison between provisions of the Act and the provisions of s327, it may be observed that subs(6) thereof presents the procedures of appeal and further assessment or reconsideration as alternative remedies, where either of the two grounds of deterioration of condition and additional relevant information were made out (the Registrar being given a discretion). By way of contrast, ss62 and 63 are presented as separate remedies which are available on different grounds. 51 It may have been intended that this separate remedy of further assessment should be available where, by reason of the deterioration of condition or additional information, the prior assessment had lost its utility (inter alia, by reason of the change or it being flawed by error).

52 Whatever be the intention, I am not persuaded that the content of the report of Dr Lim fell outside the scope of "additional relevant information about the injury". 53 However, I would add that I do not see the s62 process as being intended to be the subject of abuse (for example by an insurer seeking repeated further assessments on the basis of reports subsequently obtained). As the regime requires the Proper Officer to take other matters into account in the making of the determination (such as the objects of the Act) it may be that this was intended to prevent any abuse of the process.

54 In the circumstances, I am not satisfied that the Proper Officer erred in referring the matter on that alternative ground to another Assessor. Accordingly, I consider that this basis of action also fails. 55 I now turn to the final argument. Although it is presented under the umbrella of denial of natural justice, in substance it relates to the conduct of the assessment and involves allegations of error. 56 The argument is presented in the plaintiff's written submissions as follows [at paragraph 30]:- "The plaintiff complains that the assessment by Assessor McLeod was carried out in circumstances which amounted to a denial of procedural fairness for the reasons set out in her affidavit sworn 27 March 2007. Further Assessor McLeod has failed to properly assess the plaintiff's injuries with respect to her left shoulder. The assessor states that "Because of the inconsistencies in the findings of different examiners, including the finding by Dr Beard of full range of shoulder movement more than a year after the accident and the non organic features noted on physical examination by several examiners, I have made no assessment of permanent impairment (MAA Guidelines P61.39). It is not clear what guidelines the assessor is referring to. Chapter 1.20 of the MAA Medical Guidelines - Guidelines for the Assessment of the Degree of Permanent Impairment provide when considering the question of permanent impairment "The evaluation should only consider the impairment as it is at the time of the assessment". Thus the assessor should have based his assessment on the impairment found by him. The same guides when dealing with upper extremity impairment in Chapter 2 provide that range of movements may be a suitable method for evaluating impairment but can be subject to variation because of pain during motion at different times and/or lack of cooperation. The guides suggest that range of motion should be measured with at least three consistent repetitions to establish results are reliable (Chapter 2.4). It does not appear that the assessor followed the above guidelines." 57 The plaintiff has sworn an affidavit. It deposes to what are said to be a number of mistakes in the reasons of the second Assessor. It raises a number of matters. One area concerns dispute as to recorded history. Another concerns commentary on what happened during the medical examination. The solicitors for the first defendant have advised that they do not intend to rely upon an affidavit sworn by the second Assessor (the Assessor has invoked the provisions of s59A(2) of the Act).

58 I regard the material contained in the plaintiff's affidavit as being unhelpful in proceedings for judicial review. Such a process is not the forum for determining issues of fact and such an exercise cannot be undertaken in this case. In the circumstances, I propose to treat the material as being irrelevant. 59 It may be added that how what appeared in this affidavit came to be seen as constituting denial of natural justice was not the subject of elaboration and I am not satisfied that it makes out any such contention. 60 There is a complaint that arises out of what was said in the reasons concerning "left shoulder". The substance of it seems to be that the second Assessor failed to make his own independent assessment of permanent impairment. It seems to me that a close reading of the reasons does not make out the complaint. 61 The second Assessor clearly carried out a medical examination of the left shoulder. He referred to 1.39 of the Motor Accidents Authority Guidelines. A reading of the reasons and the Guidelines does not satisfy me that he failed to comply with the Guidelines. It may be added, although the plaintiff has sworn an affidavit as to the circumstances of the medical examination, she has not adduced any evidence that demonstrates the alleged failure to comply with them (inter alia, the "at least three consistent repetitions" which are referred to in the plaintiff's submissions). 62 It may be further added, although it was not the subject of submissions in the proceedings, that the nature of the matters which are raised in this basis of challenge are what might see a further assessment as the appropriate forum. 63 The plaintiff bears the onus of demonstrating an entitlement to the relief sought. In my view, the plaintiff has failed to discharge that onus. 64 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. Exhibits may be returned. **********

05/10/2007 - had only one counsel noted as SC when should have been both - Paragraph(s) Coversheet

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