Ackling v QBE Insurance (Australia) Limited

[2009] NSWSC 881

Reported Decision: 75 NSWLR 482
53 MVR 377
[2010] ALMD 567

New South Wales

Supreme Court

CITATION:	Ackling v QBE Insurance (Australia) Limited and Anor [2009] NSWSC 881
HEARING DATE(S):	30 March 2009
JUDGMENT DATE :	28 August 2009
JUDGMENT OF:	Johnson J at 1
DECISION:	1. The Certificate of Determination of the Review Panel, and the Statement of Reasons of the Review Panel dated 30 January 2008, are set aside. 2. The Second Defendant is to refer the medical dispute to a Review Panel comprising Medical Assessors other than Dr Parsonage, Dr Friend, Dr Samuels and Dr Jungfer. 3. The Review Panel is to undertake review under s.63 Motor Accidents Compensation Act 1999 according to law. 4. No order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW - claim for prerogative relief - motor accident compensation scheme - medical assessment of degree of permanent impairment of injured person as a result of injury caused by motor accident - medical assessor and review panel determine that psychiatric injury not caused by motor accident - whether medical assessment permits determination that injury not caused by motor accident - held that medical assessor entitled to determine whether injury caused by motor accident - concession that wrong test of causation applied
LEGISLATION CITED:	Supreme Court Act 1970 Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 March v E & MH Stramare Pty Limited (1991) 171 CLR 506 Craig v South Australia (1994-1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Jabetin Pty Limited v Liquor Administration Board (2005) 63 NSWLR 602 Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373 McKee v Allianz Australia Insurance Limited (2008) 71 NSWLR 609; [2008] NSWCA 163 Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 Paice v Hill [2009] NSWCA 156 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497
PARTIES:	Ian James Ackling (Plaintiff) QBE Insurance (Australia) Limited (First Defendant) Motor Accidents Authority of New South Wales (Second Defendant)
FILE NUMBER(S):	SC 30043/08
COUNSEL:	Mr JJE Fernon SC; Mr J Mrsic (Plaintiff) Mr ML Snell (First Defendant) Mr SJ Free (Second Defendant)
SOLICITORS:	Michael Dennis (Plaintiff) Paul Sweeney (First Defendant) Crown Solicitor's Office (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Johnson J

28 August 2009

30043/08 Ackling v QBE Insurance (Australia) Limited and Anor

JUDGMENT

1 JOHNSON J: By Amended Summons filed 25 November 2008, the Plaintiff, Ian James Ackling, seeks relief pursuant to s.69 Supreme Court Act 1970 with respect to medical assessment determinations made concerning him by a Medical Assessor, and a Medical Assessment Review Panel (“Review Panel”), under the Motor Accidents Compensation Act 1999 (“MAC Act”).

2 The First Defendant, QBE Insurance (Australia) Limited (“QBE”), concedes that error of law has been demonstrated, in one respect, so as to entitle the Plaintiff to relief. The Second Defendant, Motor Accidents Authority of New South Wales (“MAA”), appeared through counsel and made submissions concerning general questions of power and procedure under the MAC Act, in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36, and also with respect to costs. The MAA did not seek to be heard on the issue where both the Plaintiff and QBE agreed that error of law had occurred.

3 It was common ground as between the Plaintiff and QBE that the Court ought grant relief, although controversy exists with respect to the form and extent of relief and also concerning costs.

Factual Background

4 On 19 March 2003, the Plaintiff was working for his father on the family property, which lay between Bendemeer and Uralla. He had been handfeeding sheep from the back of an open-tray Bedford truck. The truck was moving across the paddock and the Plaintiff was sitting at the rear of the tray on top of some hay bails. The truck hit a rut in the ground and the Plaintiff was thrown in the air. He landed heavily on his buttocks and immediately felt a knife-like pain in the centre of his back, giving rise to a rupture of the L5/S1 disc.

5 The Plaintiff exacerbated this injury on 21 January 2004 while doing road repair work on the family property. He was shovelling dirt when he slipped and fell on his buttocks. In the period after January 2004, the Plaintiff was diagnosed with a psychiatric injury.

6 The Plaintiff claimed that his psychiatric injury was caused by the motor accident of 19 March 2003 and that his degree of permanent impairment as a result of that injury was greater than 10%. He claimed damages for non-economic loss, which requires that an injured person’s degree of permanent impairment be greater than 10%: s.131 MAC Act.

7 QBE denied liability for the claim. On 11 July 2007, the Plaintiff applied to the MAA for assessment of the disagreement between the Plaintiff and QBE regarding his degree of permanent impairment as a result of his psychiatric injury. The report of Dr Anthony Dinnen, psychiatrist, was submitted in support of the Plaintiff’s application. Dr Dinnen assessed the Plaintiff’s degree of permanent impairment at 21%.

8 QBE agreed with the Plaintiff’s characterisation of the disagreement as “permanent impairment and stabilisation”. However, QBE disagreed that the Plaintiff suffered a whole-person impairment of greater than 10% and consented to the referral of that disagreement: s.60(2) MAC Act. QBE submitted a report of Dr Robert Lewin, psychiatrist. Dr Lewin diagnosed a psychiatric injury, adjustment disorder with depressed mood, noting the Plaintiff’s symptoms as being characteristic of a reactive depression within the context of a chronic pain syndrome. Dr Lewin assessed the Plaintiff’s degree of permanent impairment at that time at 7%.

9 The Medical Assessor to whom the disagreement was referred was Assessor Brian Parsonage, psychiatrist. Medical Assessor Parsonage furnished two Certificates of Determination of Assessment dated 27 August 2007. The certificate with respect to whether an injury had stabilised stated (affidavit, MG Dennis, 2 June 2008, page 61):

“The following injuries caused by the motor accident have stabilised
NIL diagnose psychiatric disorder related to the motor accident .”

10 The certificate concerning the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident stated (page 62):

“The following injuries caused by the motor accident give rise to whole person impairment which, in total, IS NOT GREATER THAN 10% :
NIL diagnosed psychiatric disorder related to the motor accident.”

11 The Medical Assessor provided a statement of reasons with respect to these certificates (pages 50-59).

12 The Medical Assessor recounted the Plaintiff’s history and account of the motor accident, his findings on clinical examination and review of documentation before moving to his conclusions. With respect to the Plaintiff’s psychiatric disorder, Medical Assessor Parsonage concluded (page 57):

“While I accept that Mr Ackling had an on-going back problem arising from the subject motor vehicle accident, he did not develop a psychiatric disorder secondary to his back pain, until after the second injury in January, 2004. Therefore, while the subject motor vehicle accident helped to predispose Mr Ackling to developing a psychiatric disorder, it was the exacerbation of his back pain in January, 2004 and the failure of subsequent treatment that caused Mr Ackling’s Major Depressive Disorder.
If Mr Ackling had not re-injured himself in January 2004, there is no evidence that he would have developed a psychiatric disorder secondary to his residual and improving back pain and functioning which was apparent in January, 2004 before his second injury.”

13 Medical Assessor Parsonage determined that no diagnosed psychiatric disorder related to the accident on 19 March 2003, although he concluded that the Plaintiff had developed major depressive disorder after he re-injured his back in January 2004 (page 58).

14 On 3 October 2007, the Plaintiff’s solicitor completed an application for review of a medical assessment under s.63(1) MAC Act. The Plaintiff contended that Medical Assessor Parsonage had erred in his determination concerning causation of the Plaintiff’s psychiatric disorder (page 69).

15 On 15 October 2007, the solicitor for QBE filed a reply to the application for a review of a medical assessment, in which it was conceded that the approach of Medical Assessor Parsonage to the issue of causation was incorrect (page 137).

16 On 30 January 2008, a Review Panel comprising Assessors Paul Friend, Anthony Samuels and Patricia Jungfer (all psychiatrists) undertook a review of the assessment of Medical Assessor Parsonage for the purpose of s.63(3) MAC Act. The review was undertaken on the papers.

17 On 30 January 2008, the Review Panel issued certificates of determination in which the certificates of assessment of Medical Assessor Parsonage dated 27 August 2007 were confirmed. The Review Panel concluded that no diagnosable psychiatric disorder related to the motor accident (pages 146-149). The statement of reasons of the Review Panel included the following (pages 143-144):

“The panel agreed that the psychiatric/psychological condition arising from the injuries sustained in the accident of 19/3/2003 was stabilised.
The panel could not find any evidence that there was a psychiatric/psychological condition arising from the injuries sustained in the accident of 19/3/2003. Mr Ackling had not sought psychiatric/psychological treatment. The assessments by three separate psychiatrists during 2007 described a very similar account of the two accidents and a similar description of Mr Ackling’s symptoms and injuries. None of the three psychiatric reports mentioned psychiatric/psychological symptoms that would reach or be likely to reach criterion for a psychiatric diagnosis. All agreed that he had developed depressive symptoms and had a depressive illness following the second accident on 21/1/2004. Therefore the panel agrees with the findings of Assessor Parsonage that there was no assessable psychiatric/psychological condition arising from the injuries sustained in the motor accident of 19/3/2003. As there was no assessable psychiatric/psychological condition arising from the accident of 19/3/2003 there can be no assessment of permanent impairment.”

18 The Review Panel determined that the 19 March 2003 accident was not a cause, or a significant contributing factor, to the Plaintiff’s psychiatric disorder (page 144).

19 The Plaintiff commenced the present proceedings by Summons filed 17 April 2008.

Grounds Relied Upon by Plaintiff

20 By his Amended Summons, the Plaintiff seeks relief with respect to the determination of Medical Assessor Parsonage dated 27 August 2007 and the determination of the Review Panel dated 30 January 2008. The Plaintiff seeks orders setting aside the certificates and statements of reasons of Medical Assessor Parsonage and the Review Panel. Further, the Plaintiff seeks an order that the MAA refer the Plaintiff’s application for assessment of his degree of permanent impairment to a Medical Assessor other than Dr Parsonage, Dr Friend, Dr Samuels or Dr Jungfer.

21 The Plaintiff relies upon the following principal grounds:

(a) Ground 1 - the Medical Assessor and Review Panel each exceeded their jurisdiction in purporting to determine the cause of the Plaintiff’s injury.

(b) Ground 2 - in the alternative, the Medical Assessor and Review Panel each exceeded their jurisdiction in purporting to determine a disagreement that was not referred for assessment.

(c) Ground 3 - in the alternative to Grounds 1 and 2, the Medical Assessor and Review Panel each erred in determining the cause of the Plaintiff’s injury in a manner which constituted error of law on the face of the record.

Issues in the Proceedings

Error of Law Conceded

22 The Plaintiff and QBE both accept that Medical Assessor Parsonage and the Review Panel erred in law in the test of causation applied in this case. Each accept that error of law on the face of the record has been demonstrated so that Ground 3 should be upheld.

23 Mr Fernon SC, counsel for the Plaintiff, submits that the proper approach to a question of causation is whether the motor vehicle accident of 19 March 2003 was so connected with the Plaintiff’s psychiatric injury that, as a matter of ordinary commonsense and experience, it should be regarded as a cause of it, and that the “but for” test is not an exclusive test of causation: March v E & MH Stramare Pty Limited (1991) 171 CLR 506 at 509, 522. He submits that, in this case, the Medical Assessor and Review Panel both approached the question of causation by concluding that, but for the injury in January 2004, the Plaintiff would not have developed a psychiatric injury and that this conclusion was reached notwithstanding the fact that each accepted that the back injury caused by the motor accident of March 2003 was exacerbated in January 2004. The Plaintiff submits that this approach is to confound the true test for the determination of causation (Ground 3).

24 QBE accepted that the Medical Assessor and the Review Panel both applied an incorrect test of causation. Mr Snell, counsel for QBE, submitted that Medical Assessor Parsonage had simply observed that there had been no psychiatric symptoms prior to the January 2004 accident. As a consequence of this error, QBE consented to a review being granted. QBE submitted that the Review Panel fell into the same error on causation by looking only for evidence of psychiatric/psychological treatment or complaints prior to 21 January 2004. Mr Snell submitted that the Review Panel should have considered whether the aggravation of physical symptoms on 21 January 2004 was causally connected to the 2003 motor vehicle accident, and whether psychiatric symptoms developing after 21 January 2004 were therefore causally connected to the earlier motor vehicle accident.

25 Mr Snell submitted that the position adopted by QBE in the present proceedings is consistent with its earlier consent to the review application and that, as the Review Panel had made the same error in determining causation, the Plaintiff is entitled to a fresh assessment in accordance with law.

26 Mr Free, counsel for the MAA, stated that his client did not wish to be heard in respect of this issue, with submissions being confined to broader questions of statutory construction and procedure to which I will turn shortly.

Remaining Live Issues

27 The principal live issues remaining in the proceedings concern the limits of functions of Medical Assessors and Review Panels under the MAC Act and, in particular:

(a) whether it was within the jurisdiction of the Review Panel, following the referral to it of the medical assessment of Medical Assessor Parsonage, to determine whether the relevant impairment of the Plaintiff was as a result of an injury “caused by the motor accident” (Ground 1);

(b) whether it was within the jurisdiction of the Review Panel to consider the issue of causation in the particular circumstances of this case, given that the application for referral to the Medical Assessor referred only to a disagreement between the parties about the degree of permanent impairment associated with the Plaintiff’s psychiatric injury (Ground 2).

28 The Plaintiff contended that each of these questions ought be answered in the negative, so that findings of jurisdictional error ought be made as well, with the matter to be remitted for fresh determination in accordance with the narrow jurisdiction urged by the Plaintiff to exist.

29 Both QBE and the MAA resist the Plaintiff’s claim for relief under Grounds 1 and 2, and contend that the Plaintiff’s construction of the MAC Act and the Plaintiff’s claim of jurisdictional error ought be rejected.

30 The other live issue in the proceedings concerns the nature of the remitter which should be ordered in the circumstances of the case. The Plaintiff submits that the matter ought be remitted for fresh determination by a Medical Assessor, given that the decisions of both Medical Assessor Parsonage and the Review Panel were infected by error of law. QBE and the MAA submit that the matter ought be remitted to a fresh Review Panel, which will be seized of all issues to be determined and able to exercise all available and necessary powers to fulfil this function.

31 It is useful, at this point, to refer to provisions of the MAC Act which bear upon the issues falling for determination.

Relevant Statutory Provisions

32 For present purposes, it is necessary to consider the MAC Act as it stood prior to amendment by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (which commenced on 1 October 2008).

33 Chapter 3 of the Act (ss.42-65) is entitled “Motor Accident Injuries”. Chapter 3 applies to and in respect of “an injury caused by a motor accident” occurring after the commencement of the Act: s.43(1).

34 Section 44 provides for the MAA to issue Medical Guidelines (emphasis added):

“44 Medical Guidelines of Authority

(1) The Authority may issue guidelines (MAA Medical Guidelines) with respect to the following :

(a) the appropriate treatment of injured persons,

(b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided),

(c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident ,

(d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment, under Part 3.4 .

(2) The Authority may amend, revoke or replace MAA Medical Guidelines.

(3) MAA Medical Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4) MAA Medical Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.
…

(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.”

35 Given the issues in these proceedings, it is appropriate to set out certain provisions of Part 3.4 (ss.57-65) entitled “Medical Assessment” (emphasis added):

“Part 3.4 Medical assessment

57 Definitions

In this Part:

medical assessor means a person appointed under this Part to make an assessment under this Part.

medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part.

medical dispute means a disagreement or issue to which this Part applies.

58 Application

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following 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) whether an injury has stabilised,

(d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident ,

(e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident.


(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.

59 Appointment of medical assessors

(1) The Authority is required to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of this Part.

(2) The terms of any such appointment may restrict a medical assessor to disputes of a specified kind.

(3) The Authority is to ensure that, as far as reasonably practicable, there are medical assessors appointed in the regional areas of the State.

…

60 Medical assessment procedures

(1) A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor.

(2) If the insurer disputes all liability under a claim the dispute cannot be referred for assessment under this Part by the claimant alone.

(3) The request for a referral is to be made to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).

(4) The proper officer of the Authority is to arrange for any such request that is duly made to be referred to one or more medical assessors.

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) whether the degree of permanent impairment of the injured person is greater than 10% , or

(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or

(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances, or

(c) whether an injury has stabilised ,
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.


(3) Any such certificate as to any other matter is evidence (but not 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.

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b), (b1) or (c).
(8) This section:

(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and
(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b), (b1) or (c).


(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.

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.

63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review .

(2) 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.

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned .

(5) Section 61 applies to any such new certificate.

…

65 MAA monitoring and oversight

(1) Medical assessments under this Part are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment .

(2) The Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part.”

36 Chapter 4 of the Act (ss.66-121) is entitled “Motor Accident Claims”. Chapter 4 provides for a scheme of claims assessment. A Claims Assessor makes an assessment of the issue of liability for the claim and the amount of damages for that liability: s.94(1). A Claims Assessor is an officer of the MAA and is legally qualified: ss.88, 99.

37 Sections 131-133 lie within Part 5.3 MAC Act, which relates to damages for non-economic loss (emphasis added):

“Part 5.3 Damages for non-economic loss

131 Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

132 Assessment of impairment required before award of damages for non-economic loss if dispute over impairment threshold

(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment).

Note. The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court - see section 61.


(2) The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4.

(3) A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the injury has stabilised. Court proceedings with respect to any such matter may be adjourned until the assessment is made.

(4) Nothing in this section prevents:

(a) the degree of impairment being re-assessed under Part 3.4, or

(b) a claim from being settled at any time.

133 Method of assessing degree of impairment


(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part .

(2) The assessment of the degree of permanent impairment is to be made in accordance with :

(a) MAA Medical Guidelines issued for that purpose , or

(b) if there are no such guidelines in force - the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury .

Note. See Part 3.1 for MAA Medical Guidelines.”

Relief under s.69 Supreme Court Act 1970

38 Although the Plaintiff and QBE agree that error of law on the face of the record has been demonstrated in this case, there is a live issue as to whether jurisdictional error has occurred upon other bases agitated by the Plaintiff. It is relevant to set out certain legal principles which are pertinent.

39 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

40 The face of the record includes the reasons expressed by the Medical Assessor and the Review Panel for their ultimate determinations: s.69(4) Supreme Court Act 1970.

41 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

42 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]:

“Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”

43 Any error of law on the face of the record which is established needs to be dispositive before a decision such as that of the Medical Assessor or the Review Panel could be set aside in proceedings for judicial review: Jabetin Pty Limited v Liquor Administration Board (2005) 63 NSWLR 602 at 615 [28].

44 In the circumstances of this case, it is accepted by the Plaintiff and QBE that the error of law on the face of the record with respect to the test for causation was dispositive, so that at least the decision of the Review Panel ought be set aside. The remaining issues concern the construction of the MAC Act, and whether jurisdictional error has also been demonstrated with respect to the functions of a Medical Assessor and Review Panel under the Act.

Submissions of the Parties on the Jurisdictional Error Issues

The Plaintiff’s Submissions

45 Mr Fernon SC points to the statutory distinction in the MAC Act between Medical Assessors, who are medical practitioners ascribed the function of determining medical disputes, and Claims Assessors, who are lawyers assigned the task of determining liability and assessment of damages.

46 The Plaintiff emphasises the definition of “medical dispute” in s.57 and submits that, in this case, the medical dispute referred for assessment under s.60(1) was a “disagreement” between the Plaintiff and QBE about the degree of permanent impairment of the Plaintiff as a result of the injury caused by the motor accident (s.58(1)(d) MAC Act). The importance of that assessment is clear - permanent impairment of greater than 10% is the threshold for an award of non-economic loss damages.

47 In support of Ground 1, the Plaintiff submits that the Medical Assessor and Review Panel did not have jurisdiction to determine whether the Plaintiff’s psychiatric injury was caused by a motor accident. He submits that the statutory duty of each was to assess the Plaintiff’s degree of permanent impairment, and that both the Medical Assessor and the Review Panel failed to perform that duty.

48 Mr Fernon SC submits that, rather than assess the medical dispute as required by the MAC Act, the Medical Assessor and then the Review Panel exceeded their jurisdiction and purported to determine an issue concerned with liability, namely whether the psychiatric injury was caused by the motor accident. The Plaintiff submits that issues of liability are not issues for assessment by a Medical Assessor, but fall for determination by a Claims Assessor or for adjudication by a Court. The Plaintiff submits that a medical practitioner is a person with suitable qualifications for the assessment of a degree of a person’s permanent impairment, but has no special skill or qualification for the assessment of the legal issue of whether a motor accident caused an injury.

49 The Plaintiff submits that the words “caused by the motor accident” in s.58(1)(d) MAC Act are merely descriptive or identifying words, that identify the injury in respect of which the Medical Assessor is to undertake medical assessment. The Plaintiff submits that these words are not to be construed as empowering words which give to the Medical Assessor the power and function to determine causation (T5, 30 March 2009).

50 Even if that construction point was resolved adversely to the Plaintiff, Mr Fernon SC submits (in support of Ground 2) that, in the present case, there was no role for the Medical Assessor to determine causation because there was no disagreement about that matter which constituted the “medical dispute” to be determined under Part 3.4 MAC Act.

51 Mr Fernon SC submits that if a Medical Assessor’s function generally includes determining causation, then the Medical Assessor’s function in the present case did not include that function. He submits that the only subject of disagreement that was referred to the Medical Assessor was the degree of permanent impairment, the difference in this respect being between the assessment of Dr Dinnen (21%) and that of Dr Lewin (7%). No issue of causation was raised for the assessment of the Medical Assessor or Review Panel by either the Plaintiff or QBE and thus, the Plaintiff submits, the disagreement did not extend to whether the Plaintiff’s psychiatric injury was caused by a motor accident.

52 The Plaintiff submits, alternatively, that if the Medical Assessor and Review Panel’s function included a determination of whether the Plaintiff’s psychiatric injury was caused by a motor accident, any such determination is an opinion only (and not conclusive) and did not excuse the Medical Assessor and Review Panel from determining the degree of permanent impairment of the Plaintiff as a result of the psychiatric injury.

53 In summary, the Plaintiff submits that the Medical Assessor and Review Panel lacked the necessary jurisdiction to determine causation.

54 The Plaintiff submits that the appropriate orders to be made would involve quashing the certificates of the Medical Assessor and the Review Panel, coupled with an order that the matter be remitted to a different Medical Assessor for determination according to law. The Plaintiff submits that, as neither the Medical Assessor nor the Review Panel has considered the matter on a lawful basis, then such an order is appropriate in the circumstances of the case.

QBE’s Submissions

55 Mr Snell submits that it was open to the Medical Assessor and the Review Panel, as a matter of jurisdiction, to consider whether the Plaintiff’s psychiatric injury was caused by the motor accident of 19 March 2003 (Ground 1). Further, QBE submits that the “medical dispute” referred in this case did not operate to exclude the causation issue from consideration for the purpose of medical assessment (Ground 2).

56 QBE submits that the Medical Assessor and the Review Panel in this case correctly considered the question whether the Plaintiff’s psychiatric injury was caused by the motor accident of 19 March 2003 but, in undertaking that task, a legally incorrect test of causation was applied.

57 QBE submits that s.58(1)(d) MAC Act confers direct and express power on a Medical Assessor to determine the degree of permanent impairment caused by the motor accident. Mr Snell submits that the statute provides specific jurisdiction for a Medical Assessor to determine causation. Reliance is placed upon the decision of the Court of Appeal in Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373 where a Medical Assessor and Review Panel made findings on causation and there was no challenge to the power to do so.

58 QBE also relies upon the Permanent Impairment Guidelines issued by the MAA on 1 September 2005 under s.44(1)(c) MAC Act (which apply to this case) and, in particular, cl.1.4-1.6 where reference is made to causation of injury and it is said that a “determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments” (cl.1.4).

59 QBE submits that it is erroneous for the Plaintiff to contend that the medical dispute referred for assessment in this case accepted the relevant causal connection between the Plaintiff’s psychiatric condition and the motor accident of 19 March 2003 (Ground 2). Mr Snell submits that the opinions of medico-legal experts do not bind the parties, or frame the dispute as between the parties.

60 QBE submits that, in this case, there was a disagreement between the claimant and the insurer about the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, and that dispute was referred to Medical Assessor Parsonage. The Medical Assessor was obliged to apply his own medical expertise and qualifications, and to reach his own conclusions regarding both causation and the degree of permanent impairment. Although QBE accepts that the wrong test of causation was applied, it submits that it was, and remains, necessary for an assessment of causation to be made for the purpose of medical assessment in this case.

61 QBE submits that the orders to be made by the Court should state expressly that the Plaintiff’s application for assessment of his degree of permanent impairment from psychiatric injury caused by the motor accident ought be referred for fresh assessment. QBE submits that the matter ought be remitted to a fresh Review Panel to exercise this function according to law.

Submissions of the MAA

62 Mr Free submits that the Court should remit the matter to be determined according to law by a fresh Review Panel, and not to a Medical Assessor.

63 Given the role of QBE as an active contradictor, the MAA took a limited role in the proceedings by addressing only the general questions of power and procedure which arise. It is apparent that the proceedings raise issues of general importance concerning the administration and operation of the MAC Act, and the functions (including jurisdictional limits) of Medical Assessors under Part 3.4 MAC Act.

64 Like Mr Snell for QBE, Mr Free submits that the Plaintiff’s jurisdictional arguments ought not be accepted. The MAA advanced additional submissions concerning the construction and operation of the MAC Act to those made for QBE.

65 Mr Free submits that the procedure for medical assessments under Part 3.4 MAC Act turns on the concept of “disagreement” to which that Part of the Act applies and, in this context, the concept of “medical dispute”. The Medical Assessor to whom a medical dispute is referred is required to give a certificate as to the “matters referred for assessment”: s.61(1). Such a certificate becomes conclusive evidence “as to the matter certified”: s.61(2). The concept of a “matter” is key to the operation of Part 3.4 MAC Act: McKee v Allianz Australia Insurance Limited (2008) 71 NSWLR 609; [2008] NSWCA 163 at 615 [24]. The MAA submits that these provisions effectively describe the role of Review Panels, as well as the role of first-instance Medical Assessors. The role of the Review Panel is to undertake the same assessment of the “matter” as was required to be undertaken by the Medical Assessor, and the Review Panel is not confined by the terms of the particular application for review which complained of material errors in the original assessment: McKee v Allianz Australia Insurance Limited at 611 [7], 615 [25].

66 The MAA submits that there is no provision in the MAC Act for referral for assessment of part of a matter, or part of a disagreement. The matter which is referred, and which must be the subject of medical assessment, is a particular species of “disagreement” of the kind described in s.58(1) of the Act. It follows, the MAA submits, that even if a claimant and an insurer are primarily in dispute about a particular subset of this concept (for example, the evaluation of the proper percentage to describe the extent of the permanent impairment), the subject matter of the referral is not that subset, but the whole of the matter described in s.58(1)(d) of the Act. The MAA submits that the jurisdiction of Medical Assessors and Review Panels to make a medical assessment, in any given case, turns on the statutory species of “disagreement” which has arisen and has been referred for assessment. Once the type of disagreement is identified, the scope of the medical assessment process derives from the statutory description of the matter in s.58(1)(d), not from the particular terms of the referral itself.

67 In the present case, the MAA submits that the matter that was the subject of referral, and that was required to be the subject of assessment, was disagreement about whether the degree of permanent impairment of the Plaintiff “as a result of the injury caused by the motor accident” was greater than 10%. It was the duty of the Medical Assessor to make an assessment about this dispute by determining whether the Plaintiff had the degree of impairment of the relevant kind. The MAA submits that it is artificial, and contrary to the words of the statute, to exclude the element of “causation” from this assessment. The only “permanent impairment” which is relevant to the assessment is impairment which results from “the injury caused by the motor accident”. The element of causation thus qualifies the medical assessment process. Unless the Medical Assessor is satisfied that the impairment in question meets the statutory description in all respects (including causation), the MAA submits that the Medical Assessor cannot properly certify such a matter for the purposes of s.61 MAC Act.

68 While the issue in Pham v Shui was the scope of the conclusive operation of certificates arising from s.61 of the Act, the MAA submits that it is significant to note that the Court of Appeal (at 246 [96]), readily accepted that assessment of a disagreement of the kind referred to in s.58(1)(d) necessarily involves a determination of the medical causation of the relevant injury.

69 The MAA submits that the Plaintiff’s argument introduces a false dichotomy between aspects of liability and other matters. The MAA submits that the jurisdiction of a Medical Assessor is described in plain language in Part 3.4 of the Act, and that a Medical Assessor can and must make an assessment about the particular “disagreement” which has been referred. Where the disagreement is of the kind described in s.58(1)(d), the MAA submits that the Medical Assessor can and must make an assessment about whether the claimant has the relevant degree of permanent impairment resulting from “the injury caused by the motor accident”. This is the statutory description of the “matter” to be assessed. Even if it be correct to describe this process as touching on questions of “liability”, it does not follow that the plain language of Part 3.4 should be given some alternative meaning.

70 The MAA submits that the Plaintiff’s argument that Medical Assessors are ill equipped to consider issues of causation of injury should not be accepted. Reliance is placed on the observations of Giles JA in McKee v Allianz Australia Insurance Limited at 615 [24]. The MAA submits that medical professionals frequently express opinions on the causes of particular injuries, and that this ought be borne in mind in considering the terms of s.58(1)(d) MAC Act.

Resolution of Competing Submissions

71 The MAC Act establishes a system whereby claims for compensation arising from motor accidents are not determined solely in the courts, and the quantum of compensation is not ascertained (whether in court or out of court) solely in accordance with common law principles: Nominal Defendant v Gabriel (2007) 71 NSWLR 150; [2007] NSWCA 52 at 160-161 [48]. The MAC Act establishes a special regime for the medical assessment of injuries sustained in motor accidents: Nominal Defendant v Gabriel at 161 [53].

72 Part 3.4 MAC Act seeks to provide extra-curial resolution of medical disputes: McKee v Allianz Australia Insurance Limited at 614 [22]. Both an initial medical assessment, and assessment by a Review Panel, involves the application of professional medical expertise. All of the matters referred to in s.58 are medical in nature: McKee v Allianz Australia Insurance Limited at 615 [24].

73 In this case, a medical dispute was referred for assessment by the parties to the dispute: s.60(1). The medical dispute involved a disagreement between the Plaintiff and QBE about whether the Plaintiff’s injury had stabilised (s.58(1)(c)), and the degree of permanent impairment of the Plaintiff as a result of the injury caused by the motor accident (s.58(1)(d)).

74 It is necessary to construe the words contained in s.58(1)(d) MAC Act. The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context: Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 141 [115].

75 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ said at 381 [69] and 384 [78] (footnotes omitted):

“[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

…

[78] … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

76 It is necessary to give meaning to all the words in s.58(1)(d) viewed in their statutory context. The Plaintiff’s argument seeks to confine the words in that subsection to “the degree of permanent impairment of the injured person”. The Plaintiff’s argument treats the balance of the clause, “as a result of the injury caused by the motor accident”, as if it were mere surplusage or merely descriptive. I do not accept this submission.

77 I accept the submissions of QBE and the MAA concerning the proper construction of Part 3.4 MAC Act and, in particular, s.58(1)(d) of the Act. Those provisions are concerned with medical assessment by expert medical practitioners. It is not uncommon for medical practitioners to express opinions as to whether particular injuries were caused by a particular motor accident. The decision in Pham v Shui at 236 [38]-[42] provides an illustration of this.

78 To construe ss.58(1)(d) and 61 in accordance with the Plaintiff’s submissions would place an artificial fetter upon the functions to be exercised by Medical Assessors under the Act.

79 Where a s.58(1)(d) disagreement arises, the Medical Assessor ought undertake the assessment by considering 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%. Issues of causation will arise for consideration in the discharge of the statutory function required under s.61 MAC Act.

80 The Certificate issued by a Medical Assessor is conclusive evidence as to whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%: s.61(2)(a) MAC Act. I reject the Plaintiff’s submission to the contrary.

81 I reject Ground 1 and the Plaintiff’s primary submission that a Medical Assessor (under s.61) or a Review Panel (under s.63) has no jurisdiction to consider and determine whether an injury was caused by the motor accident in question.

82 I do not accept the Plaintiff’s alternative submission (Ground 2) that what was referred as a medical dispute in this case was confined solely to the question whether the psychiatric injury constituted a degree of permanent impairment of 7% (Dr Lewin) or 21% (Dr Dinnen). The medical dispute involved a s.58(1)(d) disagreement which raised the question as to whether the Plaintiff’s psychiatric disorder was caused by the motor accident of 19 March 2003. Medical Assessor Parsonage considered this question and determined it adversely to the Plaintiff. The matter was referred to a Review Panel, whereby the collegiate professional expertise of three Medical Assessors could be applied, resulting in an assessment which was more likely to be correct and to be accepted by the parties to the medical dispute: McKee v Allianz Australia Insurance Limited at 615 [23]. The Plaintiff and QBE both accept that the Review Panel committed legal error with respect to causation in the same manner as Medical Assessor Parsonage.

83 Although the limits of jurisdiction to be exercised by Medical Assessors are to be determined by the construction of the MAC Act itself, the Permanent Impairment Guidelines are not irrelevant to this task. Those Guidelines may be characterised as delegated legislation under s.44(1)(c) MAC Act. As delegated legislation, the Guidelines cannot affect the proper construction of the MAC Act, and they exist to indicate how relevant assessments are generally carried out: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 at 274 [17]; Paice v Hill [2009] NSWCA 156 at [2]-[3], [59]-[60]. With these qualifications in mind, I observe, nevertheless, that cl.1.4-1.6 of the Permanent Impairment Guidelines fortify the conclusion that the determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Part 3.4 MAC Act.

Summary of Conclusions

84 In summary, I am satisfied that, as a matter of jurisdiction, it is open to a Medical Assessor or Review Panel to consider, and express a conclusion, on the question whether an injury or injuries giving rise to permanent impairment were caused by the motor accident in question. The function of a Medical Assessor or Review Panel is to consider the medical dispute referred for the purpose of discharging jurisdiction under the MAC Act. The scope of the medical dispute is not controlled or confined by the terms of the medical reports furnished by the parties.

85 As the Plaintiff and QBE agreed that error of law had occurred with respect to causation, it was not necessary for me to determine a contested issue in this respect. It should be kept in mind, however, that the assessment of the degree of permanent impairment of an injured person as a result of injury caused by a motor accident is to be undertaken by medical practitioners acting as Medical Assessors at first instance or as members of a Review Panel.

86 It is, of course, possible for considerable complexity to be injected into discussion about the legal concept of causation. Textbooks have been written about the subject and the law reports are replete with decisions concerning the topic. The task for medical practitioners exercising medical assessment functions under Part 3.4 MAC Act is a practical one. It is important that the process is not rendered unduly complex by legal terminology. It seems to me that paragraphs 1.4-1.6 of the Permanent Impairment Guidelines issued on 1 September 2005 provides practical assistance in this area. Paragraphs 1.4-1.6 are in the following terms:

“1.4 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.5 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: ‘ Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.

(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This therefore involves a medical decision and a non-medical informed judgement.
1.6 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

87 These paragraphs were repeated in paragraphs 1.7-1.9 of the Permanent Impairment Guidelines issued on 1 October 2007. I have accepted the submissions of QBE and the MAA that an assessment whether an injury was caused by the relevant accident lies within the jurisdiction of a Medical Assessor and Review Panel. In undertaking this task, a Medical Assessor and a Review Panel will derive practical assistance from this part of the Permanent Impairment Guidelines.

88 Given the controversy in this case with respect to the causation issue, the fresh Review Panel may consider that it would be assisted by written submissions from the parties as part of the review process.

Remitter to Medical Assessor or Review Panel?

89 In my view, the appropriate course is to grant the Plaintiff relief, and to remit the matter to a differently constituted Review Panel to exercise its functions under s.63 MAC Act in accordance with the law. I do not accept the Plaintiff’s submission that the appropriate course is to remit the matter for an initial medical assessment. It may be taken that the fresh Review Panel will exercise its functions, including the prospect of examination of the Plaintiff (if it sees fit), for the purpose of the review.

90 There is some analogy with the position where judicial review is undertaken by the Court of Appeal with respect to an appeal to the District Court from the Local Court in criminal proceedings, and an entitlement to relief is demonstrated which discloses error at both the Local Court and District Court levels. In such a case, the Court will remit the matter to the District Court (and not the Local Court) to determine the proceedings in accordance with law. That approach is taken because the effect of the appeal from the Local Court to the District Court is to remove the proceedings to the District Court. In this case, I am satisfied that a Review Panel, acting in accordance with law, possesses all necessary powers to ensure that the Plaintiff’s medical dispute with QBE is determined in accordance with law.

Costs

Submissions

91 The Plaintiff seeks an order for costs against one or other or both of the Defendants. The Plaintiff submits that he is an innocent party who was required to come to this Court to obtain relief, given the legally tainted decisions of both the Medical Assessor and the Review Panel.

92 QBE submits that it took all reasonable steps, following the decision of the Medical Assessor, to ensure that a correct test of causation was applied by the Review Panel but that, despite this, the Review Panel repeated the error of the Medical Assessor in this respect. QBE submits that no order for costs should be made against it in these circumstances.

93 Both the Plaintiff and QBE submit that the MAA is responsible for the appointment (s.59(1) MAC Act) and training (s.65(2) MAC Act) of Medical Assessors so that, in the circumstances of this case, an order for costs should be made against the MAA given its suggested failure to ensure that Medical Assessors undertook their functions in accordance with law.

94 The MAA submits that no order should be made as to costs, either in its favour or against it. Mr Free points to the limited role of the MAA at the hearing where submissions were confined to issues of practice and procedure, including the proper construction of the MAC Act, in circumstances where issues of general importance were raised by the proceedings. The MAA resists any order being made against it based upon its statutory functions of appointing and training Medical Assessors.

Decision

95 Costs lie within the discretion of the Court: s.98 Civil Procedure Act 2005. Ordinarily, costs should follow the event: Part 42 Uniform Civil Procedure Rules 2005. In the present case, it was necessary for the Plaintiff to bring proceedings in this Court to set aside, at the least, the erroneous decision of the Review Panel. The Plaintiff has succeeded in this Court on the narrowest basis advanced by him, and has not succeeded on the broader ground alleging jurisdictional error. QBE accepted before the Review Panel, and again in this Court, that error had occurred with respect to the test of causation applied. There is force in QBE’s submission that, in the circumstances of this case, it could have done nothing more before the Review Panel, and in this Court, to ensure that correct principles were applied.

96 I have accepted the submissions of QBE and the MAA with respect to the proper construction of the MAC Act. The MAA appeared on a limited basis with respect to matters of practice and procedure, and the proper construction of the MAC Act. In the ordinary course, it should neither receive a favourable order for its costs nor should it be ordered to pay the costs of other parties: Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 384 [64].

97 I am not satisfied that the basis advanced by the Plaintiff and QBE for an order for costs against the MAA, namely its responsibility for the appointment and training of Medical Assessors, ought lead to an order for costs against the MAA in this case.

98 It was necessary for the Plaintiff to bring these proceedings to set aside the decision of the Review Panel. The Plaintiff has obtained relief, but not on the primary bases agitated in this Court. The Plaintiff has failed on the issues which called for determination by the Court. In all the circumstances, the appropriate conclusion is that each party should pay his or its own costs.

99 I raised with counsel the question whether the Suitors’ Fund Act 1951 had application in the circumstances of this case. None of the parties submitted that this Act was capable of applying to this case. A certificate may be granted under s.6 Suitors’ Fund Act 1951 with respect to an appeal against a decision of a court. The word “court” is defined in s.2(1) of that Act as including “such tribunals or other bodies as are prescribed”. It was common ground at the hearing that a Medical Assessor and Review Panel do not fall within this extended definition of “court” by prescription or otherwise. Although it has been said that the Suitors’ Fund Act 1951 is beneficial legislation which should not be narrowly construed (Mir Bros Developments Pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491 at 494; Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497 at 515), it does not seem to me that the Act is capable of extending to the present proceedings.

Orders

100 The matter should be remitted to a differently constituted Review Panel to undertake a review of the medical assessment of the Plaintiff pursuant to s.63 MAC Act in accordance with law. In these circumstances, it is neither necessary nor appropriate to set aside the certificate and statement of reasons of Medical Assessor Parsonage dated 27 August 2007. It will, of course, be a matter for the fresh Review Panel to reach its own independent collegiate view with respect to the issues raised on the review.

101 I make the following orders:

(a) the Certificate of Determination of the Review Panel, and the Statement of Reasons of the Review Panel dated 30 January 2008, are set aside;

(b) the Second Defendant is to refer the medical dispute to a Review Panel comprising Medical Assessors other than Dr Parsonage, Dr Friend, Dr Samuels and Dr Jungfer;

(c) the Review Panel is to undertake review under s.63 Motor Accidents Compensation Act 1999 according to law;

(d) no order as to costs.

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