Australian Associated Motor Insurers Ltd v Jessel - [2007] NSWSC 1351

No judgment structure available for this case.

CITATION: Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351

HEARING DATE(S): 30 August 2007

JUDGMENT DATE :
28 November 2007

JUDGMENT OF: Harrison J

DECISION: (1) Summons dismissed. (2) Plaintiff to pay the first defendant’s costs.

CATCHWORDS: ADMINISTRATIVE LAW – Motor Accidents Assessment Service – assessment of degree of permanent impairment by medical assessor – assessor's determination made subject to qualification concerning relevant expertise – application by claimant for review of determination – no decision to review - referral instead by proper officer to another assessor – further determination made by relevantly qualified medical assessor – increase in degree of whole person impairment following further assessment - application by plaintiff for further determination to be set aside - whether original determination conclusive and/or made within jurisdiction – whether referral by proper officer to another assessor in the circumstances an appropriate exercise of statutory power

LEGISLATION CITED: Interpretation Act 1987
Motor Accidents Compensation Act 1999

CASES CITED: Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090
Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

PARTIES: Australian Associated Motor Insurers Limited (Plaintiff)
Angus Mackay Jessel (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)
Isabella Watkins (Third Defendant)
Raymond Carroll (Fourth Defendant)
Steven Davison (Fifth Defendant)

FILE NUMBER(S): SC 30166 of 2006

COUNSEL: M A Robinson and W M Fitzsimmons (Plaintiff)
Dr J G Renwick (First Defendant)

SOLICITORS: Moray & Agnew (Plaintiff)
Wyatt Attorneys (First Defendant)
I V Knight, Crown Solicitor (Second, Third, Fourth and Fifth Defendants)

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

HARRISON J

28 November 2007

30166 of 2006 Australian Associated Motor Insurers Limited v Angus Mackay Jessel & Ors
JUDGMENT

Introduction

1 The first defendant was injured in a motor vehicle accident on 5 January 2002. He claimed damages under the provisions of the Motor Accidents Compensation Act 1999 ("the Act").

2 The plaintiff admitted that its insured driver was the sole cause of the accident. In 2005 the first defendant made applications for Assessment of a Permanent Impairment Dispute and Assessment of a Treatment Dispute. There was a "medical dispute" within the meaning of Part 3.4 of the Act: ss 57, 58. Relevantly, the dispute concerned "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident": s 58(d). For presently relevant purposes, the issue is the degree of permanent impairment caused by a fracture of the first defendant's nose.

3 The fact that the fracture had been caused by the motor accident was not in dispute. The question was the "degree of permanent impairment".

4 Section 60 of the Act relevantly provided:

" 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) . . .

(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").

5 The Proper Officer duly referred the medical dispute, including the dispute concerning "nose fracture", to Assessor Mackie. She concluded that the Whole Person Impairment ("WPI") was zero per cent. She found that the WPI for all injuries was not greater than 10 per cent. That finding, which is to be treated as conclusive in any court, has the statutory consequence that no damages for non-economic loss could be awarded: s 131.

6 The first defendant sought a review of this determination under s 63 of the Act, including in relation to the nasal fracture finding referred to above. The plaintiff objected. The Proper Officer did not make a decision under s 63 but instead concluded that the assessment as to the nose fracture "may be incomplete" and referred the matter back to the manager "to facilitate the appropriate resolution of the assessment". Proper Officer Davison, to whom the file was referred, then concluded that the original decision in relation to the nose was "void" and "outside the jurisdiction" of Assessor Mackie, as the nose injury "remains to be determined". Accordingly, rather than refer the matter to an appeal panel, he referred the earlier decision and associated material to an Ear Nose and Throat expert, Assessor Carroll, for initial determination in relation to the medical dispute concerning the fractured nose.

7 Assessor Carroll concluded that there were accident caused injuries being "nose fracture or deviation and/or deviation of the anterior nasal septum to the right, blocked air passage", justifying a finding of 4 per cent WPI. That finding pushed the total WPI over 10 per cent and thereby removed the bar to an award of damages for non-economic loss.

8 By its summons filed 30 November 2006, the plaintiff sought orders in the following terms setting aside these determinations and assessments:

8.1 An order setting aside the determination and referral to Assessor Raymond Carroll of Proper Officer Steven Davison dated 5 July 2006.

8.2 An order setting aside the Certificate of Determination of Assessment and statement of reasons of MAS Assessor Raymond L Carroll dated 21 July 2006.

9 The first defendant opposed this. There were submitting appearances by the other defendants.

Background

10 Although there is no dispute about the facts, it is necessary to review them in some more detail.

11 By letter dated 24 October 2005 the Motor Accident Authority of New South Wales ("the MAA") wrote to Assessor Helen Mackie asking her to provide a Determination consisting of both a Certificate of Determination for each of a series of nominated disputes and an accompanying Statement of Reasons. One of the particular disputes to which her attention was directed was described as "The degree of permanent impairment of the [first defendant] as a result of injuries caused by the motor accident".

12 That letter proceeded to list a series of injuries including nose fracture, eye bruising and face bruising and abrasion. The letter continued with the following paragraph:

"I note that the injured person has sustained facial injuries. Upon your examination, if you feel these injuries are outside your area of expertise and require further assessment by another specialist, would you please contact MAS immediately."

13 Assessor Mackie provided her Statement of Reasons on 12 December 2005. Part of her findings on clinical examination included the following:

"He had no bruising or abrasions over the right chest, face or eyes and forehead. He had no obvious deformity of the nose shape. He had loss of air passage of the left nostril. The septum appeared to be asymmetric on visualisation through the nostrils."

14 Later, under the subheading "Injuries That Give Rise to a Permanent Impairment", Assessor Mackie expressed the following views:

WPI = 0%

15 Finally, Assessor Mackie provided a summary. On the topic of Permanent Impairment, that summary was as follows:

" Permanent Impairment

IS NOT GREATER THAN 10%:

16 Assessor Mackie's Certificate of Determination on 12 December 2005 was in all respects consistent with her Statement of Reasons.

17 On 1 February 2006 the first defendant filed an Application for Review of a Medical Assessment. The application was accompanied by detailed grounds upon the basis of which it was contended that the medical assessment was incorrect in a number of material respects. They included the following:

"1. Dr Mackie is not qualified to assess or properly make any valid clinical findings in connection with each of the following:

(a) the nasal fracture sustained by the [first defendant] in the motor accident;

(b) the injuries sustained to the [first defendant's] face - including his nose;

(c) disfigurement occasioned by the nasal fracture;

(d) any other scarring or disfigurement.

Indeed, on p 9 of her report, Dr Mackie acknowledged that such assessments were "outside my area of expertise".

18 In due course the matter was referred to Janet Ashpole, a Proper Officer with the Motor Accidents Assessment Service. On 19 April 2006 Ms Ashpole published her Statement of Reasons for Decision under s 63 of the Act. Dealing with the first defendant's Application for Review, Ms Ashpole concluded, relevantly for present purposes, as follows:

*****

"In respect of the nasal 'fracture', the medical assessor has reported that there appears to be minor septum deviation but no displacement. Regarding any 'definite air passage blockage ', the medical assessor has acknowledged that the assessment of this particular condition is outside her area of expertise. The medical assessor has also noted the presence of scarring over the [first defendant's] thoracic spine."

"Accordingly, this matter may be incomplete in that not all the [first defendant's] injuries have been assessed. The [first defendant's] nasal 'fracture', and any scarring or disfigurement may need to be assessed by an appropriately trained MAS assessor. The file will be referred back to the Medical Assessments Manager to facilitate the appropriate resolution of the assessment.

*****

19 By letter dated 27 June 2006 the solicitors for the plaintiff wrote to the MAS advising that the plaintiff did not consent to the first defendant’s nose fracture being referred for a further medical assessment. The letter set out a number of reasons for this. One of the reasons was that the first defendant’s Application for Review had been rejected and that as a result there was no longer any matter in dispute in relation to his nose injury.

20 In due course the matter came before Proper Officer (MAS) Steven Davison. He published a Decision on 5 July 2006. It is necessary to set out some portions of that decision in detail:

" BACKGROUND

This is a matter in which Assessor Mackie was asked to determine 5 separate treatment disputes. She was also asked to determine stabilisation and permanent impairment disputes in relation to injuries including a fractured nose. Her decision, dated 12 December 2005, was sent to the parties on 9 January 2006. She awarded 10% for impairments to the thoracic and lumbar spine.

*****

"After initial consideration of these issues, I was of the view that:

*****

" DECISION

After consideration of the insurer's arguments, I am satisfied that my original views are correct.

The following matters will be referred to a single ENT surgeon assessor to assess:

· permanent impairment of the nose fracture injury;
· stabilisation of the nose fracture injury;

REASONS

The assessment of permanent impairment is binding on the parties, CARS assessors and courts.

These assessments are highly technical and require the assessor to consider a number of different factors, including various methods of assessment, in determining their awards.

In this case, Assessor Mackie has quite explicitly flagged that the assessment of a pivotal factor (air passage) is outside her area of expertise. Notwithstanding the fact that she has proceeded to include the injury on her certificate, the absence of an evaluation of this essential element of the assessment of the nose fracture clearly puts the decision on the nose injury outside the jurisdiction of the assessor.

The nose injury remains to be determined in relation to the permanent impairment dispute. As the assessment of whether the nasal injury is stabilised may be influenced by a finding that the air passage is blocked, the decision in relation to the stabilisation of the nasal injury is similarly affected by the absence of jurisdiction and also remains to be assessed.

I note, but have not based my decision on, the fact that the [first defendant] has been awarded 10% WPI. In these circumstances, I am satisfied that my decision will ensure procedural and actual fairness for the parties in resolving the impairment and stabilisation disputes.

COMMENT

21 By letter dated 12 July 2006, the solicitors for the plaintiff wrote to the MAS, "strongly" objecting to the proposed further assessment taking place. The letter contended, "that MAS has no power to act as proposed in this case". The letter included the following analysis in support of their contention:

"In relation to the nose fracture injury, we are instructed to submit and emphasise once more that there is no dispute on foot to be assessed. As indicated in our letter of 27 June 2006, Assessor Mackie did assess [the first defendant's] nose fracture injury. It was plainly addressed by her and is listed in her Certificate of Determination with respect to the degree of permanent impairment dated 12 December 2005. Pursuant to sections 61(2)(a) and (c) of the Motor Accidents Compensation Act 1999 . . . , Assessor Mackie's Certificate is conclusive evidence on the issues of stabilisation and permanent impairment unless disturbed by a further assessment under section 62 or on Review under section 63.

Section 62 of the Act enables a party to a medical dispute to refer the matter for further assessment on specified grounds only or by a court or claims assessor. The subject grounds do not exist in this case.

Section 63 of the Act permits a review of the medical assessment by a review panel. As stated previously, the [first defendant's] application for review of Dr Mackie's Certificate was rejected. For completeness, we also note that Section 132(2) enables a court to refer the matter for assessment of the degree of permanent impairment under Part 3.4 at any stage in the proceedings. That section does not apply.

With utmost respect, Chapter 11.1.5 of the Medical Assessment Guidelines . . . does not empower MAS to refer this matter for a further assessment. The subject assessment has already been conducted, the relevant Certificate issued and a Review Application determined in relation to the allegedly outstanding subject matter.

22 The plaintiff's concerns were reiterated in a further letter dated 19 July 2006. It is unnecessary for present purposes to refer to the terms of that letter. However, it provoked a response the following day from Isabella Watkins, Medical Assessments Manager of the Motor Accidents Assessment Service. Ms Watkins referred to the certificate of Assessor Mackie and expressed the following opinions with respect to it:

"Assessor Mackie in her Statement of Reasons dated 12 December 2005 . . . clearly states that the assessment of air passage blockage is outside her area of expertise. Her impairment assessment of the nasal fracture injury is thus incomplete. As per the decision of Steven Davison dated 5 July 2006 . . . the absence of assessment of this element of the nasal fracture puts the decision of the nasal fracture injury outside the jurisdiction of Assessor Mackie.

an application may be made to MAS for assessment of the medical dispute in accordance with Part 3.4

the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident

23 Assessor Carroll provided his Statement of Reasons on 21 July 2006. He noted that the first defendant had no complaint in relation to nasal obstruction and that inspection of the nasal interior showed patent airways. He concluded that there was no evidence of a significant air passage defect and no diminution in the sense of smell. Under the heading “Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident ", Assessor Carroll said:

"The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 4%."

24 On 25 July 2006, Isabella Watkins issued a Certificate of Determination of Assessment made under Part 3.4 of the Act and Clause 15.5.4.2 of the Medical Assessment Guidelines as to the degree of permanent impairment of the first defendant. Ms Watkins took into account the assessment by Assessor Mackie on 25 November 2005 and Assessor Carroll on 19 July 2006. Ms Watkins said, "the impairments sustained by the [first defendant] on the date shown are considered to give rise to a permanent whole person impairment which, in total, is greater than ten per cent using the approved methods of assessment”. Ms Watkins’ Statement of Reasons, also dated 25 July 2006, referred to the following matters:

"I have reviewed the Statement of Reasons of Assessor Mackie and Assessor Carroll in relation to the permanent impairment sustained by [the first defendant] . . .

The Statement of Reasons of Assessor Mackie indicates that the whole person impairment in relation to face; forehead; eyes; chest; sternum; thoracic spine; lumbar spine; and left shoulder is 10%.

The Statement of Reasons of Assessor Carroll indicates that the whole person impairment in relation to nose - fracture and/or deviation of the anterior nasal septum to the right, blocked air passage; and scarring at the T3/4 level of the back is 4%.

Using the Combination Values Chart at page 322 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition, the combined whole person impairment is 14%.

25 The solicitor for the plaintiff wrote a letter dated 1 November 2006 to the Registrar of the Motor Accidents Assessment Service. By that letter the solicitor for the plaintiff asked for acknowledgements that:

· the referral to Assessor Carroll and the subsequent MAS determination by him was undertaken in circumstances where a valid certificate had already been issued in respect of the medical dispute the subject of the determination by him;

· the plaintiff was not afforded procedural fairness in respect of the medical dispute determination undertaken by him in that he had provided to him, and considered as part of his determination, radiological evidence which had not been previously disclosed or provided to the plaintiff;

· the plaintiff was not afforded procedural fairness in the referral to, and the determination by Assessor Carroll of, the issue of scarring.

26 In the summons commencing the present proceedings, the plaintiff raised no issue with respect to the second and third of those matters.

The plaintiff's submissions

27 In summary the plaintiff contended that:

27.1 The certificates and statement of reasons of Dr Mackie were not void.

27.2 As a consequence, Mr Davison had no power to purport to refer those matters again.

27.3 Accordingly, the purported certificate and statement of reasons of Dr Carroll were invalid.

28 The plaintiff submitted that Dr Mackie did not lack jurisdiction to make the statutory decisions that she made. Section 59 of the Act required the MAA to appoint medical practitioners and other suitably qualified persons to be medical assessors for the purposes of Part 3.4. By s 59(2), the terms of any such appointment may restrict a medical assessor to disputes of a specified kind. No such restriction existed in the case of Dr Mackie.

29 According to the plaintiff, the statutory significance of Dr Mackie's certificate is that, by virtue of s 61(2) of the Act, any certificate as to a matter referred for assessment on the question of whether the degree of permanent impairment is greater than 10 per cent or whether the injury has stabilised is conclusive evidence as to the matter certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. Dr Mackie certified in relation to whether or not the nose injury had stabilised. Moreover, she certified that the nose injury gave rise, with other injuries, to a whole person impairment that was not greater than 10 per cent.

30 Dr Mackie's statement of reasons included a statement that the first defendant's nose fracture was amongst the injuries that were assessed in relation to the medical dispute. The question of his fractured nose was also discussed with the findings on clinical examination. There was no reservation by Dr Mackie that the question of the stabilisation of the nose injury was outside her area of expertise. However, that issue was the subject of the purported amended referral to Dr Carroll on 14 July 2006. According to this submission, there was therefore no basis for saying, "the decision in relation to the stabilisation of the nasal injury [was] similarly affected by the absence of jurisdiction and also remain[ed] to be assessed".

31 With respect to the whole person impairment, Dr Mackie stated that the first defendant "had loss of air passage of the left nostril". That was the basis for making the assessment that she made that the whole person impairment was zero per cent. Although Dr Mackie could not find definite air passage blockage, she allowed that there was some blockage and that to conclude otherwise was outside her area of expertise.

32 The plaintiff submitted that the approach taken by Mr Davison was to mis- apply the relevant provisions of the Act. He proceeded upon the basis that, in relation to the nose fracture, there was an error going to jurisdiction so that parts of the decision and parts of the two certificates were nullities. According to the submission, the legally correct approach, if Mr Davison had been of the view that there was an error in Dr Mackie's decision-making, was to have it corrected by a review panel under s 63. An assessor who is not restricted under s 59(2) of the Act, and who has in fact decided the matter, cannot have it withdrawn from his or her jurisdiction.

33 Finally, there was no error in what Dr Mackie did. Mr Davison had no legal basis to refer the matter to Dr Carroll whose decision was therefore invalid.

The first defendant's submissions

34 According to the first defendant, Dr Mackie's task was to decide a medical dispute, namely, the degree of permanent impairment caused by nominated injuries: see ss 58, 60 and 61. The relevant task of the Proper Officer is set out in the Medical Assessment Guidelines as follows:

15.5.4.1. a list of the injuries found by the assessor to have been caused by the accident and the degree of permanent impairment of the injured person as a result of those injuries; and

35 The Proper Officer concluded that Assessor Mackie had not fulfilled her task in relation to the nose fracture and that an assessor who had the qualifications that Assessor Mackie said that she lacked should be given the task of determining the degree of permanent impairment. In doing so, all that the Proper Officer was doing was re-exercising the power to refer given by s 60(4) of the Act, being a function that could be exercised "from time to time as occasion requires": s 48(1) of the Interpretation Act 1987 (NSW). The first defendant submitted that the Proper Officer could hardly have done otherwise having regard to Dr Mackie's concession that the assessment was outside her area of expertise.

The statutory regime

36 The parties referred to various provisions of the Act, including the following:

" 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) . . .

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.

(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

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.

62 Referral of matter for further medical assessment

(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

(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.

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).

(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.

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

Consideration

37 In Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301, Nettle JA was dealing with a case involving an appeal by a medical practitioner against a decision of a single judge of the Supreme Court of Victoria dismissing his application for judicial review of the respondent’s decision to hold a second informal hearing into the doctor’s professional conduct in the treatment of one of his patients. The issue was whether a finding by the first informal hearing was final and binding on the respondent. His Honour had this to say at [47] and [48]:

" Common sense favours finality

[47] . . . whether an error is jurisdictional or non-jurisdictional, the question of whether a decision may be re-opened to correct an error turns in the end on the meaning of the statute under which the decision is made. But, unlike the judge, I consider that the effect of the Act properly understood is that a finding of the panel is final and binding except upon appeal or review.

Bhardwaj

38 In the present case, the effect of the Act properly understood, combined with logic and common sense, incline in favour of a different conclusion.

39 Section 65 of the Act provides as follows:

"(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."

40 The words "Any such certificate . . . is conclusive evidence as to matters certified" in s 61(2) are critical. The Certificate of Determination issued by Assessor Mackie was conditional on its face. It specifically said, "Details of the assessment and reasons for my determination are set out in the attached Statement of Reasons". Reference to the Statement of Reasons was important because it contained words that informed the reader that the task assigned to her had not been, because it could not be, completed. The certificate was thereby qualified by Assessor Mackie so as unambiguously to draw this to the attention of the Proper Officer. To the extent that Assessor Mackie did not deal with a particular matter because it was outside her particular area of expertise, she did not "certify" in relation to it. The certificate issued by her was therefore not conclusive in relation to the particular matter that she did not certify. The letter to Assessor Mackie asking her to provide her Certificate of Determination specifically asked her to contact MAS if she felt that facial injuries were outside her area of expertise so as to require further assessment by another specialist. Although Assessor Mackie did not do so "immediately", she quite properly emphasised precisely what she intended to certify and what she did not intend to certify.

41 It does not appear to me to be an appropriate or realistic interpretation of the Act that it would permit the plaintiff in the particular circumstances of the present case to accept the sweet part of the fruit while rejecting the sour. Nor does it accord with logic and common sense.

42 Minds may differ upon whether or not the language used to describe what occurred was entirely accurate. For example, even though Ms Ashpole was "not satisfied that there [was] reasonable cause to suspect that the assessment [was] incorrect in a material respect", she nevertheless considered the possibility that "the assessment was not properly completed". Proper Officer Davison thought that because Assessor Mackie considered the assessment of the air passage blockage to be outside her area of expertise, it was sufficient to indicate that the assessment of the fractured nose was "incomplete". In his view, Assessor Mackie's statement that it was outside her area of expertise rendered "void" that part of her decision that related to the nose. He also formed the view that the assessment of the nose fracture in the circumstances put Assessor Mackie's decision on the nose injury "outside" her jurisdiction.

43 The terms of Chapter 15.5 of the Medical Assessment Guidelines require the Proper Officer to "ensure that an assessor or assessors to whom a dispute is referred" gives a list of the injuries found by the assessor to have been caused by the accident and the degree of permanent impairment of the injured person as a result of those injuries. The obligation upon the Proper Officer to do so is not confined to the period before the certificate issues. The Proper Officer of the Authority is to arrange for any request to refer a medical dispute "to one or more medical assessors": s 60(4). There is no limitation upon the time when this must be done. The Act does not contain an express limitation upon the Proper Officer to perform his functions only before the issue of a Certificate of Determination by a relevant assessor. There does not appear to be any basis upon which such a limitation can or should be implied. Again, common sense and logic would suggest otherwise.

44 I agree with Isabella Watkins that, given that Assessor Mackie's assessment of the nasal fracture injury was incomplete on the basis that elements of the assessment were outside her area of expertise, the assessment of the injury by an assessor capable of undertaking such an assessment was warranted. Assessor Mackie's Certificate of Determination can only be "conclusive evidence" as to the matters which it certifies. It cannot be conclusive evidence of anything that she has expressly indicated fell outside her ability or intention to certify.

45 The first defendant also relied upon s 48(1) of the Interpretation Act 1987. It is in the following terms:

" 48 Exercise of statutory functions

46 He argued that the Proper Officer was entitled to exercise and re-exercise the power given to him by s 60(4) from time to time as occasion requires and that that if this did not flow from the natural meaning and effect of the words used in the Act, it would do so having regard to the terms of s 48(1). What the Proper Officer did in the present case was, quite literally, to refer the request to one or more medical assessors. He did so as the occasion required, as discussed earlier in these reasons. He was entitled to do so. This is quite different to the situation dealt with by Johnson J in Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090. I note and agree with what his Honour had to say in that case at [122] to [123] as follows:

"[122] I am satisfied that s 48 Interpretation Act 1987 has no application to allow an assessor to revisit the issue of a certificate and statement of reasons under s 94 MAC Act. That power is to be exercised once only by the assessor. Where an assessor exercises that jurisdiction and issues a s 94 certificate and statement of reasons, the only circumstance in which he or she may revisit the assessment is where s 94(6) applies and the Principal Claims Assessor refers the matter back to the assessor.

Bhardwaj

Plaintiff S157/2002 v Commonwealth of Australia

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

Interpretation Act

Bhardwaj

Plaintiff S157/2000

SGLB

47 As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [8]:

functus officio

48 The present case is not one involving issues of functus officio or reconsideration by a decision maker. The present case involves the discharge of a statutory function by a Proper Officer under the Act whose ongoing task was to refer certain medical disputes to medical assessors and to ensure that they complied with the statutory regime that required them to furnish Certificates of Determination concerning medical issues within their particular area(s) of specialty. These were the functions committed to the Proper Officer by statute and it was wholly consistent with good administration and fairness, when the need arose, for him to refer the outstanding medical issue to Assessor Carroll when Assessor Mackie indicated that she would not deal with it. The certificate that she issued left untouched the matter that was referred to Assessor Carroll and was conclusive only as to the matters that she considered. Assessor Carroll’s Certificate of Determination validly dealt with the remaining issue.

Orders

49 I make the following orders:

1. Summons dismissed.
2. Order the plaintiff to pay the first defendant’s costs.

*********

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Citations

Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

2

Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301

Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

CITATION:	Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351
HEARING DATE(S):	30 August 2007
JUDGMENT DATE :	28 November 2007
JUDGMENT OF:	Harrison J
DECISION:	(1) Summons dismissed. (2) Plaintiff to pay the first defendant’s costs.
CATCHWORDS:	ADMINISTRATIVE LAW – Motor Accidents Assessment Service – assessment of degree of permanent impairment by medical assessor – assessor's determination made subject to qualification concerning relevant expertise – application by claimant for review of determination – no decision to review - referral instead by proper officer to another assessor – further determination made by relevantly qualified medical assessor – increase in degree of whole person impairment following further assessment - application by plaintiff for further determination to be set aside - whether original determination conclusive and/or made within jurisdiction – whether referral by proper officer to another assessor in the circumstances an appropriate exercise of statutory power
LEGISLATION CITED:	Interpretation Act 1987 Motor Accidents Compensation Act 1999
CASES CITED:	Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090 Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
PARTIES:	Australian Associated Motor Insurers Limited (Plaintiff) Angus Mackay Jessel (First Defendant) Motor Accidents Authority of New South Wales (Second Defendant) Isabella Watkins (Third Defendant) Raymond Carroll (Fourth Defendant) Steven Davison (Fifth Defendant)
FILE NUMBER(S):	SC 30166 of 2006
COUNSEL:	M A Robinson and W M Fitzsimmons (Plaintiff) Dr J G Renwick (First Defendant)
SOLICITORS:	Moray & Agnew (Plaintiff) Wyatt Attorneys (First Defendant) I V Knight, Crown Solicitor (Second, Third, Fourth and Fifth Defendants)