Judgment date: 28 May 2010

Singh v Motor Accidents Authority of NSW [2010] NSWSC 500

Supreme Court of New South Wales1

In Brief

  • The role contemplated by the Motor Accidents Compensation Act 1999 (MACA) for the Proper Officer is a procedural role and not an administrative or jurisdictional gateway through which the parties are required to pass.
  • The Proper Officer is not given, by the terms of MACA, a decision making jurisdiction as to whether the referral for a further medical assessment has been validly made, or, whether the conditions in s 62(1)(a) and s 62(1A) of the MACA have been satisfied.
  • The Motor Accidents Authority (MAA) (including the Proper Officer or a medical assessor to which a matter is referred under s 62) is amenable to prohibition, preventing the conduct of an assessment (or the referral to a medical assessor for the conduct of an assessment) where the jurisdictional pre-conditions have not been satisfied.
  • Likewise, the MAA (including the Proper Officer) would be amenable to mandamus to require the organisation of a further medical assessment by a medical assessor, in circumstances where the jurisdictional preconditions have been satisfied.

Background

In this matter the plaintiff sought orders to prevent a further medical assessment of an alleged psychological injury sustained in an accident on 7 January 2002.

The plaintiff claimed to have suffered physical and psychological injuries in a rear end collision at Kogarah Bay. Physical injuries to her neck, back, left foot and jaw were alleged together with a psychological injury in the form of a major depression with psychotic features. The plaintiff's physical injuries were assessed to give rise to a not greater than 10% whole person impairment.

The plaintiff's alleged psychological injuries were assessed by Dr McClure on 20 February 2008. Dr McClure found that the plaintiff has no psychiatric injury caused by the accident on Page 2 of 4 7 January 2002. The plaintiff applied for, and was granted, a review of Dr McClure's assessment by a Review Panel under s 63 of MACA.

The Review Panel conducted a review on the papers on 4 July 2008, the plaintiff being a resident of New Zealand. The Review Panel disagreed with Dr McClure's opinion as to causation. The Review Panel assessed whole person impairment, largely based on the history provided by the plaintiff provided to Dr McClure, and certified that the plaintiff's psychological injury gives rise to a greater than 10% whole person impairment.

In October 2008 the compulsory third party insurer of the motor vehicle at fault, Allianz Australia Insurance Limited (Allianz), applied pursuant to s 62 of MACA for further assessment of the permanent impairment dispute. Allianz Australia Insurance Limited relied upon surveillance footage of the plaintiff and reports of Dr Smith, Psychiatrist, in lodging the Application.

On 9 March 2009 the Proper Officer of the Medical Assessment Service (MAS) issued a decision to refer the dispute relating to permanent impairment for further medical assessment. In light of the Proper Officer's decision, the plaintiff filed a Summons in the Administrative Law Division of the Supreme Court seeking to prevent the Proper Officer or any other delegate of the MAA from taking any further step in appointing a Medical Assessor to assess Allianz's Application for Further Assessment.

Supreme Court Decision

The plaintiff's Summons came on for hearing in the Supreme Court before Justice Rothman on 16 April 2010.

His Honour resolved to determine on a preliminary basis whether orders in the nature of prerogative relief would issue in relation to a "decision" of the Proper Officer and further, whether any other appropriate order (in the nature of prerogative relief or otherwise) would issue, the nature of any or any other such order, and against whom, if anybody, such order would issue.

Justice Rothman handed down his judgment on these preliminary issues on 28 May 2010. In doing so, his Honour discussed the legislative provisions relevant to a medical assessment under s 62 of MACA and noted at paragraph 16 of his judgment that a medical assessment determines whether an injury is causally linked to a particular motor vehicle accident and, most relevantly for present purposes, the level of whole person impairment caused by the accident. However, in this context, his Honour was not determining the binding nature of a MAS assessment on a party to it but reinforcing the views earlier expressed by him in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056.

Justice Rothman considered the role of the Proper Officer and accepted the description by Justice Hoeben in Goodman v Motor Accident Authority of NSW & Anor [2009] NSWSC 875 that the role of the Proper Officer is to arrange the further medical assessment under s 62, which further medical assessment has, pursuant to MACA, already been referred. It is a procedural role not an administrative or jurisdictional gateway through which the parties are required to pass. Further, at paragraph 29 his Honour stated:

"...the terms of MACA require the Proper Officer to undertake a procedural task equivalent to, in effect, the listing of the further assessment before a medical assessor. The Proper Officer is not given, by the terms of MACA, a decision-making jurisdiction as to whether the referral for a further medical assessment has been validly made, or, whether the conditions in s 62(1)(a) and s 62(1A) of the MACA have been satisfied".

Before referring a matter for further medical assessment, the Proper Officer is required to be satisfied that the terms of MACA have been properly invoked. However, his Honour held that such a determination does not determine, authoritatively or otherwise, in a manner that binds the parties to the medical dispute the validity of the referral by the referring party. The referring party does not make an Application for a referral – it is the party that refers a matter for further medical assessment under s 62.

Accordingly, in considering the statutory task of the Proper Officer, his Honour stated that the Proper Officer is entitled to decide for himself or herself whether there has been a referral. That is, whether the statutory conditions for a referral have been satisfied. Once the Proper Officer has made this decision, the referral will either be listed for further medical assessment before a Medical Assessor or not.

At paragraph 41, Justice Rothman stated:

"On the view that I have taken of the role of the Proper Officer, the Proper Officer is not required to act judicially, is required to take a purely procedural step and does not, of herself or himself, make a decision that affects the rights of any of the parties. The procedural decision to organise a further medical assessment (or to refuse to organise such an assessment) is not effective to alter the rights of the parties, which are granted, or not granted, by the MACA, not the decision of the Proper Officer. The rights of the parties are conferred by the provisions of s 62(1) and s 62(1A) of MACA and not otherwise and, subject to the later comments in these reasons, those rights would be enforceable, regardless of the "decision" of the Proper Officer."

His Honour held that the procedural task undertaken by the Proper Officer is not amendable to certiorari or orders in the nature thereof, there being no judicial decision made by the Proper Officer for review by the Supreme Court.

However, his Honour's determination in relation to the decision of the Proper Officer does not affect other orders that might issue that determine the rights of the parties. To this extent, his Honour considered whether the conditions imposed by MACA on a referral for a further medical assessment are "jurisdictional facts".

Section 62(1A) requires the satisfaction of a pre-condition and that pre-condition is the objective fact of the deterioration or additional information that has a material effect on the outcome of the previous assessment. In his Honour's view, the objective existence of a deterioration of the injury and/or additional relevant information is the criterion that is necessary to enable a party to the medical dispute to refer the matter again for medical assessment and, if the criterion upon which the party relied is not capable, objectively, of having a material effect on the outcome of the previous assessment, that too would preclude a reference.

At paragraph 54, his Honour states:

"As a consequence, the existence, objectively, of a deterioration of the injury or, alternatively, additional relevant information about the injury, is a "jurisdictional fact" the non-existence of which precludes and/or invalidates any purported reference by a party to the medical dispute. Further, if the deterioration or additional information is not such as to be capable of having a material effect on the outcome of the previous assessment, that Page 4 of 4 too is a "jurisdictional fact", the absence of which would preclude and/or invalidate any reference for a medical re-assessment."

The effect of his Honour's findings in relation to a "jurisdictional fact" is that the MAA (including the Proper Officer or a medical assessor to which a matter is referred) is amenable to prohibition, preventing the conduct of an assessment (or the referral to a medical assessor for the conduct of an assessment) where there is no deterioration of the injury and/or additional relevant information that would have a material effect on the outcome of the previous assessment. The MAA (including the Proper Officer) would also be amenable to mandamus to require the organisation of a further medical assessment by a medical assessor in circumstances where the pre-conditions in s 62(1A) have been met.

Implications

A party can seek orders in the nature of prohibition or mandamus where the Proper Officer's allocation review of an Application for Further Medical Assessment is adverse to their interests provided they are able to establish that the objective criterion in s 62(1A) has or has not been met.

The seeking of such orders will involve the Supreme Court embarking on a merits review of the material relied upon by the party making the Application in order to establish whether the objective criterion has been met. That is, the Supreme Court will be asked to determine whether there is evidence of a deterioration of injury and/or additional relevant information by looking at and considering the documentation attached to an Application.

Justice Rothman reinforced the view expressed by him in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 that a medical assessment determines whether an injury is causally linked to a particular motor vehicle accident. However, the binding nature of findings of causation by a medical assessor on the parties to a dispute remains to be determined following the amendments to MACA on 1 October 2008.

1.Rothman J

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