Davis v Kent

[2016] NSWDC 238

District Court

New South Wales

Medium Neutral Citation:	Davis v Kent [2016] NSWDC 238
Hearing dates:	10 October 2016
Date of orders:	11 October 2016
Decision date:	11 October 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made; (2) Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s injuries arising from the motor vehicle accident on 26 May 2012 be referred for further medical assessment under Part 3.4 of the Motor Accidents Compensation Act 1999; (3) The costs of the defendant’s application for referral are reserved; (4) The defendant pay the plaintiff’s costs thrown away by the vacation of the hearing date as agreed or assessed; (5) The hearing listed for four days commencing 10 October 2016 is vacated; (6) The exhibits on the application are to be returned to the parties.
Catchwords:	Torts – negligence - motor vehicle accident – application to refer the plaintiff for further medical assessment under the Motor Accidents Compensation Act 1999 (NSW) – exercise of discretion
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 Chami v Motor Accidents Authority (NSW) (2009) 55 MVR 1; [2009] NSWSC 1358 Trazivuk v Motor Accidents Authority (NSW) [2009] NSWSC 1074 Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287
Category:	Procedural and other rulings
Parties:	Lyle Joseph Michael Davis (Plaintiff) Neil Kent (Defendant)
Representation:	Counsel: M Fraser (Plaintiff) D Ronzani (Defendant)   Solicitors: Castagnet Lawyers (Plaintiff) Curwoods Legal (Defendant)
File Number(s):	2015/00145767

Judgment

1. This matter was listed for final hearing before me for four days commencing 10 October 2016.

2. At the commencement of the hearing, Mr Ronzani, counsel for the defendant, made an application under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for an order that the matter be referred by the Court for further assessment under Part 3.4 of MACA.

3. The assessment in question is a medical assessment in relation to the plaintiff by the Motor Accidents Medical Assessment Service.

4. Having regard to the importance of the application to the continuation of the hearing it was necessary for me to consider the application urgently and to make a decision promptly.

5. The basis of the application by the defendant was that recent neuropsychological assessment reports had been obtained by both parties dealing with the question whether the plaintiff had a permanent whole of person impairment in relation to a head injury received in a motor vehicle accident in which he was involved as a pedestrian on 26 May 2012. One of those reports, being a report which the defendant obtained, expressed the opinion that the plaintiff’s whole of person impairment concerning the head injury was 0%.

6. The application was opposed by the plaintiff who submitted that the final hearing should proceed on the existing medical assessment certificates dated 19 September 2013 and 21 November 2013.

Legislative background

7. Section 131 of MACA provides as follows:

“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%.”

8. Section 132 of MACA provides as follows:

“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 impairment caused by the injury has become permanent. 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.”

9. There was a dispute in the present case between the parties in relation to the plaintiff’s degree of permanent impairment arising from the motor vehicle accident and therefore medical assessments of the plaintiff were undertaken under MACA.

10. Section 61 of MACA provides as follows:

“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 medical assessment matter 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)    (Repealed)

(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 medical assessment matter.

(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 medical assessment matter.

(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.

(10)  The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury):

(a)  each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor’s assessment is concerned,

(b)  based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment,

(c)  the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.

(11)  If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.”

11. Section 62(1) of MACA 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.”

12. Section 63 of MACA provides as follows:

“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.

(2A)  If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(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.

(3A)  The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(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)  If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6)  Section 61 applies to any new certificate or new combined certificate issued under this section.

(7)  The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made.”

The application made by the defendant

13. The application was made orally on behalf of the defendant for an order under Section 62(1)(b) of MACA that the issue whether the degree of permanent impairment of the plaintiff as a result of the injury caused by the motor car accident in which the plaintiff was involved was greater than 10% be referred for further assessment to the Motor Accidents Medical Assessment Service under Part 3.4 of MACA.

14. The application was made without a formal Notice of Motion. I dispense with the requirement for a formal Notice of Motion to be filed and served under Part 18(2) of the Uniform Civil Procedure Rules having regard to:

1. The clear issue involved in the application;

2. The plaintiff having been given notice of the application a week or so prior to the trial;

3. The fact the application was made on the first day of the trial listed for four days;

4. The need for the application to be determined urgently; and

5. The fact that the application was made arising from the receipt by the defendant of a supplementary report of Dr P Langeluddecke, clinical psychologist, dated 26 September 2016 who gave the plaintiff a whole person impairment of 0% for the traumatic brain injury which the plaintiff suffered in the accident and which allegedly gave rise to continuing disabilities.

Background facts

15. The background facts to the application are as follows:

1. The plaintiff was born in November 1957 and is currently 58 years old;

2. The plaintiff was involved in a serious motor vehicle accident in 1990 in which he had a head injury and an above elbow amputation of his left arm;

3. From that time on the plaintiff has been on a disability pension but has had some limited part-time work;

4. The plaintiff was involved in a further serious motor vehicle accident on 26 May 2012 which is the subject of these proceedings when he was hit by a taxi whilst a pedestrian crossing the road in Macquarie Street in Sydney;

5. The plaintiff was severely injured in the accident. He had multiple injuries including a head injury, scalp laceration, rib fractures, chest injury, left leg fractures and right leg injuries. The plaintiff claims numerous ongoing disabilities arising from the accident;

6. The plaintiff was admitted for treatment to:

1. St Vincent’s Hospital from 26 May 2012 to 12 June 2012;

2. St Vincent’s Hospital, Sacred Heart Rehabilitation Unit, from 12 June 2012 to 8 September 2012; and

3. Port Kembla Hospital for rehabilitation from 8 September 2012 to 2 October 2012;

7. In his Amended Defence filed 7 October 2016, the defendant has admitted liability;

8. The plaintiff had a medical assessment under MACA undertaken by neurologist, Dr J O’Neill, in 2013. Dr O’Neill issued a certificate under MACA dated 19 September 2013 in which he found that the injuries caused by the motor accident on 26 May 2012 gave rise to a permanent impairment in relation to the head injury to the plaintiff of 11%;

9. In the course of that assessment report, Dr O’Neill noted that he did not have the ambulance report, full hospital notes, an updated CT brain scan, a report from the plaintiff’s usual general practitioner or a neuropsychological assessment.

10. Dr O’Neill stated as follows in his reasons for assessment (Exhibit A):

“There would certainly be a case for review of my Certificate after the provision of additional information including: the ambulance report; the full hospital notes; an updated CT brain scan compared with the earlier studies on 26 and 27 May 2012; and a report from Mr Davis' usual GP (Dr Rowed) as to whether she noticed definite impairment in day to day performance following the accident on 26 May 2012. This is also a case where neuropsychological assessment (taking into account premorbid status) would be advantageous”;

11. Dr O’Neill said that despite these deficiencies in the material before him he had taken “the existing facts at face value” and had done his “best to assess impairment on that basis”: Exhibit A annexure F page 7;

12. An assessment certificate under MACA was also issued by Dr P Burke, orthopaedic surgeon, on 30 September 2013 assessing at 4% whole person impairment the injuries to the plaintiff’s legs arising from the accident;

13. A combined whole person impairment of 15% was certified in a combined report on 21 October 2013 by Drs O’Neill, Burke and Desai (lung specialist).

16. A major issue between the parties is the degree of permanent impairment of the plaintiff arising from the head injury suffered by the plaintiff in the 26 May 2012 accident.

17. It is clear from the voluminous material which was tendered on the application that the parties now have:

1. The ambulance report;

2. The full hospital records;

3. The full rehabilitation records;

4. Reports by three experts of a neuropsychological nature;

5. The first of these reports is the report of Dr A Falcon, neuropsychologist, at the Sacred Heart Rehabilitation Unit at St Vincent’s Hospital dated 8 August 2012 who found mild reductions in verbal attention and working memory of the plaintiff arising from the accident compared to pre-morbid estimates of average intellectual function;

6. The second reports are the reports of Dr P Langeluddecke who found that there were very minor and limited impairments to the plaintiff arising from head injuries in the accident. Dr Langeluddecke found a 0% whole person impairment arising from the head injuries in her second report. Dr Langeluddecke also emphasised the plaintiff’s pre-accident injuries arising from the 1990 motor vehicle accident and the plaintiff’s use post that accident of drugs and alcohol as a form of pain relief (Exhibit 1 pages 14, 16, 19 and 22); and

7. The third reports are those of Dr V Oxenham, neuropsychologist, dated 30 September and 6 October 2016 who found substantial and continuing impairments in the plaintiff arising from his head injury which was suffered in the accident.

Additional factual matters

18. In the course of the hearing of the application, the following additional factual matters which are relevant emerged:

1. Counsel for the plaintiff, Ms Fraser, indicated that the maximum amount which can be awarded for non-economic loss in the matter is $521,000 and she will be submitting that the plaintiff should be awarded an amount approaching $500,000 under this head: T9.25;

2. This was the major head of damages sought on behalf of the plaintiff in the matter: T9.32;

3. It would take about three months to obtain a further Medical Assessment Service Certificate in relation to the plaintiff’s whole of person impairment: T10.36-40.

The submissions made on behalf of the defendant

19. In summary, the defendant made the following submissions in support of the application:

1. On its proper construction, the discretion in Section 62(1)(b) of MACA was separate to the reference power under Section 62(1)(a) of MACA. The court has a general discretion to order that the matter be referred for further assessment under Section 62(1)(b). This discretion is a general discretion to be exercised in the interests of justice;

2. It is clear from the assessment made by Dr O’Neill on 19 September 2013 that he did not believe that he had all relevant material before him, particularly a neuropsychological assessment, and, doing the best he could on the limited material before him, he came to an assessment just over the statutory minimum for the award of non-economic loss;

3. The supplementary report of Dr Langeluddecke dated 26 September 2016 arrives at a 0% whole person impairment in relation to the head injury suffered by the plaintiff. This was a very significant additional report in the matter;

4. The other neuropsychological assessments of Dr Falcon and Dr Oxenham were similarly not before Dr O’Neill. The reports of Dr Oxenham and Dr Langeluddecke had not yet been prepared but the hospital notes and the report of Dr Falcon had been prepared and were clearly important to Dr O’Neill’s assessment;

5. The reference on page 6 of Dr O’Neill’s assessment to there being “certainly … a case for review of my Certificate after the provision of additional information” should not be read as a review of his medical assessment by the Review Panel under Section 63 of MACA but a further assessment under Section 62(1)(a) of MACA. If Dr O’Neill had meant a review by the Review Panel he would have stated that expressly;

6. Having regard to the wide range of conclusions in the neuropsychological assessment reports and the fact that the material sought by Dr O’Neill was now in substance available, the matter should be referred for further assessment and the trial vacated. Dr O’Neill had in substance prepared his assessment on incomplete material;

7. It was in the interests of justice that a further assessment occur having regard to the crucial importance of the non-economic loss head of damages in these proceedings, the fact that it was the main head of damages relied on by the plaintiff in monetary terms and the fact that it was agreed that only three months would be required to obtain a further assessment certificate;

1. In response to the argument that the defendant waited to obtain relevant medical reports until 2015-16 which he should have obtained earlier, submitted that the plaintiff only commenced the proceedings in 2015, and the defendant’s reports were obtained following the commencement of proceedings and the service by the plaintiff of his medical reports;

2. The case of Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [38] relied on by the plaintiff should be distinguished. The material here was not “simply a different opinion about the same matter”. Dr O’Neill had no neuropsychological assessments before him when he prepared his assessment and said such an assessment would be “advantageous”. The hospital notes and the neuropsychological assessments reports were clearly relevant additional information. In any case, it is submitted, the court’s discretion under Section 62(1)(b) was wider than under Section 62(1)(a) of MACA: T2.17-28; T14.39-15.13;

3. Overall, it was in the interests of justice to make the order as sought by the defendant.

Submissions made on behalf of the plaintiff

20. Ms Fraser, counsel for the plaintiff, opposed the application for the following reasons in summary:

1. The existing certificate provided by Dr O’Neill was obtained in September 2013 over three years ago;

2. It is clear that the defendant’s insurer had a copy of the hospital records from Port Kembla Hospital as at August 2013 yet these were not provided by them to Dr O’Neill for his review: Exhibit A, annexure E;

3. It was clear from Dr O’Neill’s report that he saw a neuropsychological assessment as being relevant yet the defendant failed to take steps to obtain such a report until 2016. Further, Dr O’Neill felt he was able to assess the plaintiff’s degree of permanent impairment in relation to his head injury without a neuropsychological assessment;

4. The report of Dr Casikar, neurosurgeon, dated 15 December 2015 (Exhibit 1, pages 1-2) was not served by the defendant until April 2016, some five months after it was obtained. Further, this report pointed to the need to have an assessment by a psychologist which was not obtained until Dr Langeluddecke was briefed by the solicitors for the defendant in May 2016;

5. Dr Langeluddecke was said by Ms Fraser not to be a specialist neuropsychologist but a general clinical psychologist: see Exhibit A. However, I note that in paragraph 2.2 of her report (Exhibit 1, page 13), Dr Langeluddecke refers to the fact that she holds a doctorate in clinical psychology and has been a consultant clinical psychologist for over 30 years, “specialising in neuropsychological assessment”. Dr Langeluddecke also refers to the fact that she has publications in neuropsychological journals related to the estimation of premorbid intelligence and long term cognitive sequelae to brain injury. She would therefore appear to hold expertise in the neuropsychological area;

6. The reports of Dr Oxenham show that he has a very different opinion in relation to the plaintiff’s continuing head injury disabilities and has undertaken a critical analysis of Dr Langeluddecke’s report;

7. The defendant’s application is made too late after unexplained delays and an adjournment of the proceedings and a vacation of the trial date would be unfair to the plaintiff in all the circumstances;

8. The discretion under Section 62(1)(b) of MACA is wide but is informed by the purpose of the statute, the importance of the status of medical assessments under the Act and the matters referred to in Section 62(1)(a) .

Applicable legal principles

21. The authorities in this area have mainly considered a refusal by the Motor Accidents Authority to refer a matter for further assessment under Section 62(1)(a) of MACA on the grounds of the deterioration of the injury or additional relevant information about the injury.

22. In Trazivuk v Motor Accidents Authority (NSW) [2009] NSWSC 1074, Patten AJ stated as follows at paragraphs [29]-[33]:

“[29] The scheme of the Act generally is to give considerable force to a medical assessment certificate. s 61(2) makes it conclusive as to the matters certified and although s 61(4) enables a court in court proceedings to set aside a certificate, it may do so only in the limited circumstance that there has been a denial of procedural fairness and that the admission of the certificate would cause substantial injustice.

[30] Section 61 must, however, be read in light of ss 62 and 63. The latter enables a party to a medical dispute to apply to the proper officer of the Authority to refer a medical assessment to a review panel comprising at least 3 medical assessors. However, for this to occur, the proper officer must first be satisfied that the assessment was “incorrect in a material respect”.

[31] Consistently, as it seems to me, with ss 61 and 63, s 62(1)(a) authorises the reference of a matter for medical assessment on one or more further occasions upon the application of a party but subject to stringent conditions, namely that there has been a deterioration of the injury or there is additional relevant information about the injury and the deterioration or additional information, are capable of having a material effect on the outcome of the previous assessment These criteria, as amplified by the guidelines, are to be adjudged by the proper officer of the Authority who is not to direct a further reference unless they are met.

[32] Section 62(1)(b) may appear anomalous, in that it confers upon a court or a claims assessor the unfettered right to refer a matter for further medical assessment. Although s62(1B), which requires the intervention of a proper officer, on its face applies to all referrals under the section, it does not seem to me, as a matter of construction, that it applies to a referral by a court or claims assessor under s62(1)(b). However, the guidelines give the Proper Officer a limited role (irrelevant for present purposes) to such referrals.

[33] Section 62(1)(b) gives nobody the express right to apply to a court or assessor to refer a matter for further medical assessment and it may be (although this was not argued before me) that parliament intended that a reference under s62(1)(b) should be of the court or assessor’s own motion. Otherwise there may be the avenue for a party to obtain a further medical assessment without first establishing deterioration of the injury or additional relevant information. However, Chapter 9 of the guidelines does seem to contemplate that a formal application to a court or assessor may be made, as occurred in this case.”

23. Accordingly, Patten AJ described the discretion conferred on the court under Section 62(1)(b) of MACA as being: “the unfettered right to refer a matter for further medical assessment”. His Honour clearly made a distinction in describing the discretion that way between the power in Section 62(1)(a) compared to the power in Section 62(1)(b) of MACA.

24. In Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287, the Court of Appeal considered an appeal from the decision of Patten AJ. In the case, Handley AJA gave a judgment with whom Young JA agreed. As to part of the case Giles JA dissented. In the course of his judgment, Handley AJA stated as follows at paragraphs [99]-[100]:

“[99] In his decision of 24 September 2008 the claims assessor, having noted that he was dealing with a second application, set out the relevant history. He then considered the nature of his discretion under s 62(1)(b) of the Act. He said [11] that the discretion was unfettered but [12] “it must only be exercised where there are good reasons so to do.” He then said [14] that any further assessment should only be ordered “where it would be unjust not to do so”, that is “only where … there is a risk that an injustice will [otherwise] be visited on one of the parties”.

[100] Thus far I detect no error in the assessor’s approach. He concluded [15] saying that “the kind of injustice which may warrant an order for further assessment” may include “further relevant information, evidence of deterioration, evidence of material error … or procedural unfairness.” His list was not exhaustive. He concluded [16] by saying that injustice only arises where there is a reasonable prospect that the further assessment would meet the 10% of WPI threshold for an award for non-economic loss. This is where Giles JA identified error.”

25. The majority of the Court of Appeal thus appeared to confirm Patten AJ’s approach that the discretion under Section 62(1)(b) of MACA was unfettered but it must only be exercised where there are good reasons so to do in the interests of justice.

26. The decision of Patten AJ was also followed by Associate Justice Harrison in Chami v Motor Accidents Authority (NSW) (2009) 55 MVR 1 at [11].

27. I also take into account the decision of Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [38] but note that this decision appears to have considered a refusal to refer for further assessment under Section 62(1)(a) of MACA: Alavanja, at [7]. Further, the present case does not appear to have been initiated only by “a different opinion about the same matter” as Dr O’Neill had no neuropsychological assessments before him in 2013.

Consideration

28. I have considered all of the submissions made on behalf of the parties and the extensive material (four folders) which has been tendered on the application.

29. The submissions made by counsel for the parties have been very helpful in elucidating the issues to be considered.

30. It would appear from the proper construction of Section 62(1) of MACA that the discretion referred to in Section 62(1)(b) is separate and different to the discretion referred to in Section 62(1)(a) of MACA. This is established by the word “or” between the two sub-paragraphs and the covering words at the beginning of Section 62(1) which are general in nature. It is also consistent with the decision of Patten AJ in Trazivuk, above, which was confirmed by the majority of the Court of Appeal in that case when it went on appeal.

31. The use of the word “may” in the introductory words of Section 62(1) clearly indicates that the power of the court under Section 62(1)(b) is a discretionary one.

32. There are no factors listed in Section 62(1)(b) which the court must take into account in exercising the discretion. Accordingly, the discretion is general in nature. However, having regard to the important role which medical assessment certificates play under MACA, in my view there must be a good ground for the court exercising its discretion to refer a matter for further assessment under Section 62(1)(b) of MACA. Under Section 61(2) of MACA a certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings. Further, under Section 131 of MACA, 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%.

33. While the discretion of the court should not be unnecessarily confined, the objects of MACA should be taken into account particularly the object referred to in Section 5 (1) (b), being to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims. It must be recalled that liability is not in issue in the present case. Matters which would potentially permit the court to exercise its discretion under Section 62(1)(b) of MACA in my view include:

1. Where a ground referred to in Section 62(1)(a) of MACA is established being that there has been a deterioration of the injury of the plaintiff or additional relevant information about the injury has emerged;

2. Where there has been a substantial improvement in a plaintiff’s condition;

3. Where a medical assessment was flawed by a denial of procedural fairness;

4. Where reliance on an existing assessment certificate would be unjust;

5. Where other good reasons exist for the referral of a matter for further assessment.

34. I take into account in exercising my discretion all of the matters which have been referred to in the submissions by the parties.

35. I also expressly take into account the following:

1. That the degree of impairment certified by Dr O’Neill in relation to the plaintiff’s head injury in his assessment of 19 September 2013 was 11% which is just over the minimum whole person impairment for the award of non-economic loss damages;

2. That in Dr O’Neill’s report he expressly stated that there would be a case for a review of his certificate if there was the provision of additional information which is now substantially available;

3. That Dr O’Neill also stated that this was a case where neuropsychological assessment (taking into account pre-morbid status) would be advantageous, and three neuropsychological assessments are now available with quite different opinions;

4. That non-economic loss is the major head of damages sought by the plaintiff in these proceedings;

5. That the plaintiff will be submitting that he should be awarded an amount approaching $500,000 in non-economic loss damages out of a total maximum potentially to be awarded under this head of $521,000;

6. That this application by the defendant has primarily arisen out of the receipt by the defendant of the whole person impairment assessment of the plaintiff in relation to his head injury of Dr Langeluddecke of 0% which was in her report dated 26 September 2016. This assessment has to be considered in the light of the earlier report of Dr Langeluddecke and the reports of Dr Oxenham;

7. That the plaintiff’s corresponding reports of Dr Oxenham are dated very recently being 30 September and 6 October 2016;

8. That Dr O’Neill had not seen the report of Dr Falcon, neuropsychologist, prepared in 2012 when he prepared his medical assessment certificate in 2013;

9. That Dr O’Neill’s medical assessment certificate is dated 19 September 2013 whereas the defendant chose to only obtain expert reports in this area at the end of 2015 and in 2016 and Dr Langluddecke’s impairment assessment in August 2016;

10. That it would take about three months to obtain a further MAS assessment certificate in relation to the plaintiff;

11. That the trial of the plaintiff’s claim will need to be vacated if the application is granted.

36. I do not think it is decisive against the application of the defendant that the medical reports obtained by the defendant were only obtained in late 2015 and in 2016. These proceedings were commenced in May 2015, shortly before the expiry of the three year limitation period in question, so the plaintiff waited, as he was entitled, for his condition to stabilise before proceedings were commenced. The defendant then had to wait for service of the medical material relied upon by the plaintiff and to obtain his own medical reports on the issues in the case. There is no suggestion, in my view, that the defendants were particularly dilatory in relation to the obtaining of the medical reports although there is some delay in obtaining the final report of Dr Langeluddecke and in making the present application. This is a factor to be taken into account in the exercise of the discretion.

37. The important matters in my opinion are:

1. That Dr O’Neill himself said that he thought the provision of additional information would be relevant and would be a case for review of his certificate;

2. That that additional information is in the main now available;

3. That Dr O’Neill thought a neuropsychological assessment would be advantageous which has now occurred;

4. That the head of damages for non-economic loss is by far in monetary terms the most significant head of damages sought in the case;

5. That there is a wide range of views between the neuropsychologists in the material before me; and

6. That there will not be a substantial delay for the plaintiff if the medical assessment certificate is obtained.

38. The importance to both parties of the whole person impairment certificate in the present case in the light of the legislation is clear. In my view it is in the interests of justice that the matter be referred for further assessment. Having taken into account all of the matters referred to above, in my view, I should exercise the discretion which I have under Section 62(1)(b) of MACA to refer the matter for further assessment.

39. On the issue of costs, the defendant submits that while the usual order is that costs follow the event, costs should be reserved in relation to the application to await the outcome of the medical assessment certificate otherwise the defendant could be punished if the certificate is for less than 11%.

40. The plaintiff submits that he should be awarded his costs of the application on an indemnity basis irrespective of whether the order is made or not.

41. In my view, there is some force in the defendant’s submission. Having regard to the crucial nature of the medical assessment certificate in the present case, in my view the costs of the application should be reserved. If a further certificate is obtained showing an impairment of 11% or greater, then the plaintiff would have good grounds for seeking his costs of the application.

42. However, the first report of Dr Langeluddecke shows that she was briefed by the solicitors for the defendant by letter dated 26 May 2016 and that the plaintiff attended Dr Langeluddecke’s rooms for assessment on 15 June 2016. Dr Langeluddecke’s first report is dated 16 June 2016. There is no explanation why the two page second report of Dr Langeluddecke (Exhibit 1, pages 29-30) dated 26 September 2016 took so long to provide in the light of the defendant’s solicitors’ letter dated 1 August 2016 requesting a whole of person impairment assessment. There is also no explanation why the second report was not sought until 1 August 2016. In my view this application should have been made earlier than when it was and any report of Dr Langeluddecke should have been sought earlier. If the application had been made earlier, it would not have required the plaintiff to be ready to run the final hearing with the application made on the morning of the first day. For these reasons in my view, exercising my costs discretion under Part 42.1, I am of the opinion that the defendant should pay the plaintiff’s costs thrown away as agreed or assessed by virtue of the vacation of the hearing. To be clear, in my view this order should be made as a departure from the normal presumption in Part 42.1 of the Uniform Civil Procedure Rules.

43. I therefore make the following orders:

1. Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made;

2. Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s injuries arising from the motor vehicle accident on 26 May 2012 be referred for further medical assessment under Part 3.4 of the Motor Accidents Compensation Act 1999;

3. The costs of the defendant’s application for referral are reserved;

4. The defendant pay the plaintiff’s costs thrown away by the vacation of the hearing date as agreed or assessed;

5. The hearing listed for four days commencing 10 October 2016 is vacated;

6. The exhibits on the application are to be returned to the parties.

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Decision last updated: 12 October 2016