Alavanja v NRMA Insurance Ltd

[2010] NSWSC 1182

CITATION:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
HEARING DATE(S):	13 October 2010
JUDGMENT DATE :	26 October 2010
JURISDICTION:	COMMON LAW
JUDGMENT OF:	Davies J
DECISION:	(1) The Summons is dismissed. (2) The Plaintiff is to pay the Defendants' costs of the proceedings.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - referral for medical reassessment - proper construction of s 62 Motor Accidents Compensation Act 1999 - whether there was additional relevant information, whether the additional information was capable of having a material effect on the outcome of the previous assessment - further information not of a different kind from material available to first Assessor - further information merely a different opinion by another Doctor.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
PARTIES:	Dragica Alavanja (Plaintiff) NRMA Insurance Ltd (First Defendant) The Motor Accidents Authority of New South Wales (Second Defendant) Christopher Cornforth in his capacity as Proper Officer of the Medical Assessment Service of the Motor Accidents Authority of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 2010/117272
COUNSEL:	B K Nolan (Plaintiff) W Fitzsimmons (Defendants)
SOLICITORS:	NSW Compensation Lawyers (Plaintiff) Holman Webb Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant) Crown Solicitor's Office (Third Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

26 OCTOBER 2010

2010/117272 ALAVANJA V NRMA INSURANCE LTD

JUDGMENT

1 The Plaintiff was injured in a motor vehicle accident on 9 April 2006. On 23 July 2007 she made application for assessment of permanent impairment by the Medical Assessment Service (“the MAS”) at the Motor Accidents Authority of NSW (“the MAA”).

2 On 11 September 2007 the Assessor, Dr Nigel Menogue, issued his Statement of Reasons and Certificate where he determined that her whole person impairment was not greater than 10%.

3 The Plaintiff then made application under s 62(1)(a) Motor Accidents Compensation Act 1999 for a further assessment. As part of that application she provided 4 statements by herself and members of her family and, significantly, a medico-legal report dated 19 December 2007 from a Dr Elias Matalani.

4 The first application for a further assessment was dated 28 October 2008 and was refused on 12 January 2009. The second application was made on 24 April 2009 and was refused on 13 July 2009.

5 The Plaintiff now seeks declarations that what are described as the “purported decisions” of the Proper Officer of the MAS were no decisions at all, an order in the nature of certiorari and an order in the nature of mandamus to compel the Proper Officer to refer the Plaintiff for further medical assessment.

Legal principles

6 Section 62 of the Act provides 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.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority ).
(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.

7 The application for a further assessment was made on the basis of the provision of what the Plaintiff alleges was “additional relevant information” about the injury.

8 It was not disputed that the material which the Plaintiff submitted with the 2 subsequent applications constituted relevant information about the injury. It is to be noted that sub-s (1A) makes it necessary, not only that there be additional relevant information, but that the additional information “is such as to be capable of having a material effect on the outcome of the previous assessment”. The Defendant did not dispute that, if the report of Dr Matalani was additional relevant information, it would be capable of having a material effect on the outcome of the previous assessment. The Defendant did submit, however, that if the factual evidence contained in the statements of the Plaintiff and members of her family was regarded as additional, it would not be capable of having material effect on the outcome of the previous assessment.

9 The primary issue in the proceedings was whether the information was “additional” within the meaning of s 62.

10 Rothman J had occasion to consider what was meant by the word “additional” in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056. He said:

[38] The proper construction of the term in s 62(1) of the Act is a question of law. The determination, whether, in any particular case, the information is “additional”, or, whether, in another case, the material is “information”, will be a question of fact. The term “additional information” about the injury does not include a restatement of information already received. Nor does it include a summary of information already received. It does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is “about the injury”. Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being “additional information” not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind , would be “additional relevant information about the injury”. Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act.

[39] In these proceedings, the decision of the Authority, made on 8 August 2008, refused to refer Ms Garcia’s matter for medical assessment on a further occasion, because the Authority considered that the new medico-legal opinion of the medical expert could not be “additional relevant information about the injury”. Such a decision discloses an error of law, because it misconstrued the meaning of the term “additional relevant information about the injury”.

[40] The medical opinion upon which Ms Garcia relied for that purpose were the opinions of Professor Fearnside, of 14 December 2007, the reports of Dr Maniam, of 10 August 2007 and 14 November 2007, and the report of Dr Steel, of 18 December 2007, each of which opine that the cause of the current injuries, at least in part, derives from the motor vehicle accident. No opinion to that effect (by any medical practitioner) was previously before the Assessor .

[41] The provision of the additional information does not require that the opinion of those medical practitioners be preferred over the opinion of the appointed medical assessor. The Assessor continues to have the capacity to form her or his own opinion. But an opinion of that kind, if no such opinion was previously available, is additional information relevant to the Assessment, and is relevant additional information “about the injury”. The misconstruction of the jurisdictional precondition in s 62(1)(a) of the Act is an error of law in the ultimate determination of whether to refer Ms Garcia for a further assessment. As a consequence, it is amenable to prerogative writ, and appropriate orders will issue. (emphasis added)

11 In Glover-Chambers v Motor Accidents Authority of New South Wales [2010] NSWSC 17 McCallum J cited para [38] of Garcia and went on to say:

[38] As indicated by those remarks, in order to satisfy the requirements of s 62(1)(a), the opinion will only be “additional” to the extent that it has not previously been expressed in the material put before the assessor.

12 The material in the statements and the report of Dr Matalani that is said to be “additional” concerns the matter of causation.

13 It is first necessary to consider the material that was before the Assessor on the first occasion dealing with causation.

Material before the Assessor

14 It should first be noted that the Plaintiff was a passenger in a motor vehicle driven by her husband which commenced to make a right-hand turn. As the vehicle was in the course of that manoeuvre it was struck by a vehicle coming in the opposite direction along the street out of which the Plaintiff’s vehicle was turning. She claimed to have suffered injuries to the neck, the middle back, the right shoulder, the right knee, the left ribs and stomach. However, the permanent injuries in respect of which assessment was required were said to be the cervical spine, the thoracic spine and the right shoulder.

15 The Plaintiff initially consulted Dr Todorovic who treated her, and also referred her to Dr Matthew Giblin, an orthopaedic surgeon. In the medico-legal report dated 22 November 2006, which was before the Assessor, Dr Todorovic relevantly said this:

1. I saw your claimant initially on 02/05/2006 when she gave me the following history: On 09/04/2006, at about 10.30 a.m., she was involved in a motor vehicle accident as a front seat passenger of a car that was turning right and collided with an oncoming car, hitting the front right side. In the accident she sustained injuries to her, neck, upper back, right shoulder and abdomen.
…

2. The patient's stated disabilities are pain in her right shoulder, neck, upper back.

…

2. Diagnosis:
(i) Post traumatic mechanical derangement of the cervical and upper thoracic spine with a discogenic component (C4/5 central to left disc protrusion indenting the thecal sac, C5/6 disc protrusion causing mild posterior displacement of the spinal cord)
(ii) Musculo-Iigamentous sprain - right shoulder with a possible small intrasubstance tear of the supraspinatus tendon

3. My clinical findings are consistent with the history of injury and in agreement with the patient's presentation. (emphasis added)

16 Those passages indicate that Dr Todorovic was of the opinion that the motor vehicle accident had caused the injuries to her cervical and thoracic spine of which she complained and, arguably, that her shoulder injury had also been caused by the accident.

17 The medico-legal report from Dr Giblin of 25 June 2007 which was before the Assessor relevantly said this:

I initially saw Mrs. Alavanja on the 3 May, 2006 at the request of Dr. Velibor. She is a forty seven year old Leading Hand involved in a motor vehicle accident on the 9/4/06. At the time of the accident she was a front seat passenger with a seatbelt and a headrest and alleged the car was hit from the front. She wasn't taken to Hospital; she saw her family doctor the following day. Since the accident she'd had neck pain, upper thoracic pain in the right trapezius and right shoulder region. She had pain on movements of the shoulder and the neck. There were no significant peripheral neurological signs, although she did complain of numbness in the index finger and the thumb.
…

Clinically, I felt her symptoms were consistent with a soft tissue injury to the cervical spine and the right shoulder.

…

She continues to complain of neck pain, with pain into both upper limbs, but some paraesthesia around the ball of the right thumb and mid thoracic pain. The pain in the arms is constant with intermittent exacerbations. She is currently still working.

RELEVANT INJURIES

There is no past history of this or a similar problem.

EXAMINATION
On examination of her cervical spine, she is unable to put her chin on her chest, left and right lateral rotation are reduced by 50% with pain at the extremes.
On examination of her right shoulder, she could forward flex to 90 degrees, abduct to 90 degrees, extension of the right shoulder is equivalent to the left shoulder. Adduction of the right shoulder is equivalent to the left shoulder. Internal and external rotation are equivalent bilaterally.
On examination of her thoracic spine, she has pain on rotation of the thoracic spine and tenderness in the mid thoracic area.
INVESTIGATIONS
3l ^st January, 2007
M.R.I. Thoracic Spine
Moderate sized left posterolateral disc protrusion at T6/T7 causing mild displacement and impression of the thoracic spinal cord.
Smaller left posterolateral disc protrusion at T7/T8 with minimal encroachment on the thoracic spinal cord.
OPINION & PROGNOSIS
It is my opinion this lady's injuries are consistent with the accident described. She seems to have disc lesions in the cervical spine and in the mid thoracic spine and she also has some right rotator cuff disease with restriction of movement. I consider these to be consequent upon the accident. (emphasis added)

18 Dr Giblin assessed her as having 5% impairment of the whole person in respect of the cervical spine, 5% impairment of the whole person in respect of the thoracic spine, and overall 15% impairment of the whole person taking into account the impairment of the upper limb.

19 The Assessor also had a report prepared on behalf of the Insurer by Dr Richard Sekel of 3 May 2007. He described the history of the accident in this way:

9/4/06, Motor Vehicle Accident
On 9/4/06 during Mrs Alavanja's private time (sic), she was the front seat passenger in a car being driven by her husband.
The car had been stationary at an intersection, but her husband started to slowly drive the car to turn right, when another car approached their car from the opposite direction in a suburban area (presumably maximum 60 kph). The front of Mrs Alavanja's car sideswiped the offside surface of the other car as it drove past, but their car did not strike any other object or roll.

Mrs Alavanja states that no part of her body struck the inside of the car cabin. The car was not fitted with airbags.

…

INJURIES
She states that she sustained the following:
A soft tissue injury of her upper posterior thoracic wall, pointing to the region of the posterior spinous processes of the first and second thoracic vertebral region, and not in the neck.
I double checked this, using first my fingers, and then her fingers, to confirm that the pain was not in the neck itself, but in the upper posterior thoracic wall.
Pain in the right suprascapular area, spreading into the right shoulder region, but the pain is not localised in the right shoulder itself.
A separate pain in the interscapular area (pointing at approximately the fifth thoracic vertebra) which is most noticeable when she turns over in bed at night.
She states that she did not sustain any other injuries.

The further material

20 As noted earlier, the Plaintiff submitted 4 statements, one by herself and one from 3 other members of her family. Ultimately, Ms Nolan of counsel who appeared for the Plaintiff accepted that the only statement that could be regarded as containing additional relevant information was that of the Plaintiff herself. That statement relevantly said:

[32] Approximately 1 metre into the intersection as he was making the turn a motor vehicle which was travelling in the opposite direction along Edensor Road at an excessive speed hit into our motor vehicle. He hit the middle front of our motor vehicle towards the passenger side and the impact of the collision caused our vehicle to turn coming to a halt in the middle of the intersection.

[33] The bonnet of our motor vehicle flew up. There was what appeared to be steam coming out of the radiator and oil coming out onto the road. Police attended the scene of the accident as well as ambulance and a tow truck.

[34] I was in shock and I was panicking. At the time of impact my body was thrown forward, due to the strength of the seatbelt holding me back I felt pain in my ribs. I also felt pain in my neck and upper part of the back. I was thrust forward and held back by the seatbelt which covered the left side of my body, however the upper part of my body twisted to the right so that I put my right arm out to protect me. I believe that my right arm insulated me against hitting the dash board and in protecting myself I may have damaged my right shoulder. We checked ourselves and made sure each other was alright. Then I said to my husband "you should check on the other people in the other car." My husband was able to get out of our motor vehicle.

…

[36] I was feeling pain in my neck, upper back and right shoulder as well as my ribs.

21 The report of Dr Matalani was obtained after the assessment by Dr Menogue, and is dated 19 December 2007. Two parts of the report are put forward as providing additional relevant information. The first concerns the Plaintiff’s history associated with the accident and is in these terms:

Mrs. Alavanja informed me that on 9 April 2006, she was involved in a motor vehicle accident as a front seat passenger. She was wearing her seatbelt and believes that her seat was fitted with a headrest. The car she was in was about to do a right-hand turn and had just moved slightly when it was hit by another vehicle coming from the opposite direction. She stated the collision occurred between the two doors on the left-hand passenger side.

She was in shock and felt discomfort in the neck, right shoulder, ribs, and between the shoulder blades in the upper part of the back and thoracic spine. She declined going to hospital when asked by the ambulance, as she was not "that bad". She was given a lift home.

She was unsure whether her right shoulder had hit any part of the car but recalled her whole body was thrown forward and her right leg was pushed under the dashboard. She saw her doctor, Dr. Lau, the next day and complained of pain in the neck, right shoulder, between the shoulder blades and upper part of the back. She also had pain in the ribs on both sides. She was prescribed painkillers.

A few days later she had increasing pain in the right shoulder and neck and estimated that the right shoulder pain became much more noticeable approximately 7 to 10 days after the injury. She stated that she believes that after the accident, there was much more pain in the neck and upper part of the back extending to between the shoulder blades that she did not quite notice the pain in the right shoulder. When the pain in the neck and between the shoulder blades gradually improved, she became more aware of the right shoulder pain.

22 The other and more significant section concerns causation and is in these terms:

In reply to your question about causation:

It appears that immediately after the injury the most distressing pain was in the neck and upper part of the back. It is not uncommon for the pain in the neck and upper part of the back to radiate to the shoulder regions and I am not surprised that she had some pain in both shoulder regions.

She stated that she felt the pain in the right shoulder gradually intensifying and 7 to 10 days after the accident, the pain was really noticeable. She then saw Dr. Todorovic and was referred for an ultrasound of the right shoulder, which was performed on 27 June 2006.

It is therefore conceivable that Mrs. Alavanja was too concerned about her intense neck and upper thoracic pain to discern a pain in the right shoulder particularly that the neck and upper thoracic pain radiated to both shoulders at the time of the injury. It is often difficult for injured people to differentiate between a discrete injury to the right shoulder and radiation of the pain into the shoulder region.

She denied any previous injuries or conditions in her right shoulder and denied any subsequent injuries to the right shoulder.

In the absence of any other reasonable explanation for the development of right shoulder symptoms 7 to 10 days after the accident. Her symptoms, which precipitated a referral to a right shoulder ultrasound indicate that she is likely to have injured her right shoulder at the time of the accident but was too concerned about the neck and back that she only noticed her right shoulder injury later, when the acute injury to the neck and back settled.

In the circumstances I believe it is reasonably fair and equitable to give her the benefit of the doubt and accept that her current right shoulder condition is causally related to the subject motor vehicle accident.

Mrs. Alavanja confirmed that she had pain in the neck and upper thoracic spine from the very first day of the accident and when she first consulted Dr. Lau.

She had the pain when she saw Dr. Todorovic, which prompted him to refer her for x-rays of the neck and upper back as well as the ultrasound of the right shoulder.

There is no evidence that her state of health before the injury, heredity, lifestyle or her activities have contributed in any significant or material way to her current disability.

She confirmed that her neck pain and thoracic pain were present not just immediately after the accident but intensified afterwards. The pain in the neck is present at the base and sides of the neck and not as a radiation from the thoracic or upper part of the back.

It is not rare that an injured person could become too concerned about a very painful injury such as the neck or back particularly if there is some radiation to the shoulder regions and not discern a separate injury to another part of the body until few days later when the acutely painful body part has settled. This, I believe was the case in Mrs. Alavanja's situation.

In my opinion, her cervical, thoracic and right shoulder injuries are three separate assessable injuries and based on the history obtained and in the absence of any evidence to the contrary, it is my opinion that her cervical and thoracic and right shoulder injuries are causally related to the subject motor vehicle accident.

23 Dr Matalani assessed the whole person impairment at 13% made up of 5% for the neck and 8% for the right shoulder.

The first decision

24 The application for further assessment of 28 October 2008 spent a good deal of time criticising Dr Menogue, accusing his assessment of being “riddled with breaches of the Code of Conduct” and asserted that Dr Menogue displayed obvious bias.

25 It then made reference to Dr Matalani’s report, saying that his assessment causally related the injuries to the 3 body parts to the motor vehicle accident. It then noted that:

The report of Dr Todorovic indicates consistent and immediate and contemporaneous complaint of injury to the neck, thoracic spine and right shoulder which is inconsistent with Dr Menogue (sic) determination.

26 The Applicant then referred to the statements of the Plaintiff’s husband and 2 children which it was said provided evidence of contemporaneous complaint. It is clear, however, that there was already evidence of contemporaneous complaint in the reports of Dr Todorovic and Dr Giblin which were already before the Assessor.

27 The decision of the Proper Officer of 12 January 2009 was that the reasons advanced in criticising Dr Menogue’s assessment would not have a material effect on the outcome of the further application but would be more appropriately the basis for a review of his assessment.

The second decision

28 The further application dated 24 April 2009 said exactly the same things that had been said in the first application but then added some further matters with regard to the Proper Officer’s first refusal of 12 January 2009. A complaint was made that the Proper Officer did not provide reasons in relation to matters raised by that application being (presumably) matters that were not critical of Dr Menogue but dealt with further material.

29 The application, in making reference to what Dr Matalani said about causation of the injury, drew attention again to the report of Dr Todorovic which, it was said, contained contemporaneous records of complaint of injury to the neck, thoracic spine and right shoulder. The application then went on to say:

Dr Todorovic, Dr Mathew Giblin and Dr Matalani relate the injury to the thoracic spine, right shoulder and cervical spine directly to the after effects of the motor vehicle accident. The comments made by Dr Menogue that the right shoulder and/or neck symptoms cannot be attributable to the accident are incorrect and not based on any probative evidence.

30 The reasons for the second refusal are lengthier. Generally, the Proper Officer took the view that the comments might have been appropriate if a Review had been sought rather than a further assessment. However, he went on to say:

It is apparent that there maybe additional relevant information pertaining to the current status of the claimant but this information does not effectively demonstrate how this is capable of altering the outcome of the previous assessment of as required by section 62(1)(a) of the Act.

Was the material “additional”?

31 Ms Nolan of counsel who appeared for the Plaintiff submitted, picking up the words of Rothman J in para [38] of Garcia, that what was contained in the Plaintiff’s statement and the report of Dr Matalani was not information of the kind that had been provided to Dr Menogue. She pointed to the detail in the report of Dr Matalani which she said provided appropriate reasons for his opinion that the injuries to the 3 body parts were caused by the accident. She accepts that there were expressions of diagnosis and causation in those doctors’ reports that were given to the Assessor but she said none was as comprehensive as Dr Matalani’s report. She submitted that the doctors’ reports did not go into the factual matters which are necessary in order to make a meaningful finding as to causation in accordance with what the High Court found in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. She described Dr Giblin as having expressed a bare ipse dixit.

32 By way of analogy with the requirements laid down in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Ms Nolan submitted that Dr Matalani’s report was the only report that properly complied with that decision and, accordingly, there was no medical opinion “of that kind” before the Assessor.

33 I do not think the analogy with Makita is at all helpful. Nor do I think it is sufficient to focus on the words “of that kind” in Rothman J’s judgment. First, a judgment is not a statute whose words are being interpreted. Secondly, it is necessary to read the whole of that paragraph together with, at least, the highlighted passages in paras [40] and [41] to understand what his Honour was saying about the requirement of additional information.

34 With respect, I agree with what his Honour has said in those paragraphs. I understand him not to be saying that any further opinion of an expert would be additional relevant information. Rather, if no expert has already expressed an opinion about a particular aspect of the matter then it would be additional.

35 It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor’s report, was considered. If the opinion has been expressed, as here, that particular injuries are related to the accident, the precise way the doctor explains why he thinks that that is so, cannot amount to additional relevant information. The important matter is the opinion about causation.

36 In my opinion, the reports of Dr Todorovic and Dr Giblin express opinions, whether by inference or expressly, concerning the causation of injuries to the 3 body parts in the accident. Ms Nolan submitted, particularly in relation to Dr Giblin, that his reasoning and analysis was not set out. However, a summary of his report is relevantly this:

(a) The Plaintiff was a front seat passenger with a seatbelt and headrest in a car that was hit from the front;
(b) since the accident she had neck pain, upper thoracic pain, pain in the right trapezius and right shoulder region;


(c) she still has that pain and restriction of movement;

(d) there is radiological evidence of injury to the body parts;

(e) she had not had any history of pain or restriction or any similar problem prior to the accident;


(f) the injuries are consistent with the accident;

(g) the injuries are consequent upon the accident.

It is hard to see what else, in substance, Dr Giblin could have said to express a view about causation. Even if, as Ms Nolan submits, it is appropriate to apply analogously the principles from Makita to the issue being determined, Dr Giblin’s report complied with the requirements of Makita .

37 If one looks at what Dr Matalani is saying in the passage set out in para [21] above, the majority of his reasoning concerns why she may not have noticed a shoulder injury at the time of the accident because of the immediacy and severity of the neck and upper back pain. This analysis was put forward by Dr Matalani to justify his opinion that the shoulder injury was caused by the accident. However, the material before the Assessor from Dr Todorovic and Dr Giblin did not doubt that the shoulder injury was caused by the accident.

38 Further, whilst it is true that Dr Matalani assessed 8% whole person impairment for the right shoulder, that of itself cannot amount to additional relevant information. Rather, it is simply a different opinion about the same matter. In that regard, it is to be noted that he came to the same assessment of the neck injury as Dr Giblin but, on the other hand, assessed 0% whole person impairment for the thoracic spine. Mere differences of opinion and differing assessments of whole person impairment are not, without more, additional relevant information.

39 There is nothing else in Dr Matalani’s report which provides additional relevant information. It covers the same ground as the material that was before the Assessor, albeit, it was expressed at greater length.

40 I do not consider that the material contained in the statements of the Plaintiff and members of her family constitutes additional relevant information. Although there may be greater detail about the circumstances of the accident and its sequelae in terms of injury and disability, the information to that effect was before the Assessor, not only because of what was contained in the reports of Drs Todorovic, Giblin and Sekel but because the Assessor also took a history from the Plaintiff. It is apparent from the reports of Drs Todorovic and Giblin in particular that they utilised the information about the accident and its sequelae in reaching the views they did about consistency with, and causation by, the accident with regard to the injuries complained of.

41 Further, because the doctors used the information provided to them by the Plaintiff about the accident and her injuries and disabilities in reaching their opinions, I could not be satisfied, even if the information is accepted as additional, that it is capable of having a material effect on the outcome of the previous assessment.

42 Ms Nolan drew my attention to the opening words of s 62(1) that enabled further references to be made on “one or more further occasions”. For that reason, and in any event, it was submitted that a liberal interpretation needs to be given to what is meant by additional relevant information. It was submitted that the legislature contemplated that there would be applications for reassessment on more than one occasion.

43 Even if Rothman J had not expressed the opinions he did in Garcia, I should have had great difficulty accepting that a party was entitled to refer a matter for further assessment simply because they obtained a medical report which said something different from previous reports that had been considered by an assessor. If that was so, there may never be an end to the assessment process. It would be inconsistent with the objects of the Act particularly the object set out in s 5(1)(b) of encouraging early resolution of compensation claims.

Conclusion

44 In my opinion, the Plaintiff was not entitled to refer the matter for further assessment under s 62(1)(a) on the basis that there was additional relevant information about the injury. There was no additional relevant information. In those circumstances, the Summons should be dismissed with costs.

45 I make the following orders:

(1) The Summons is dismissed.

(2) The Plaintiff is to pay the Defendants’ costs.

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