Mafra v Egan (No 1)

[2006] NSWDC 22

CITATION:	Mafra v Egan (No 1) [2006] NSWDC 22
HEARING DATE(S):	5, 6, 7, 8, 9 and 14 June 2006
JUDGMENT DATE:	6 June 2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. Section 61 of the MAC Act is a procedural provision only; 2. A certificate under s 61 is determinative only as to the degree of permanent impairment, not causation for all purposes; 3. The assessor's certificate should not be rejected under s 61(4)
CATCHWORDS:	Evidence - Effect on causation of s 61(2) of the MAC Act - Conclusiveness of certificates under s 61(4) - No breach of procedural fairness by assessor
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (MAC Act)
CASES CITED:	Advanced Gaining Technologies Pty Limited v Ahearn [1999] NSWSC 45 American Dairy Queen (Queensland) Pty Limited v Blue Rio Pty Limited (1981) 147 CLR 677 Barrett v Howard (2000) 96 FCR 428 Bropho v The State of Western Australia (1990) 93 ALR 907 Brown v Lewis [2006] NSWCA 87 Campbelltown City Council v Vegan [2004] NSWSC 1129 Issot v North Sydney Leagues Club [2005] NSW WCC PD 38 Madden v NSW Ministerial Corporation [1999] NSWSC 196 Marine Hull and Liability Insurance Co Limited v Hurford (1985) 10 FCR 243 Minister for Immigration and Ethnic Affairs ex parte Lam (2003) 195 ALR 502 Potter v Minahan (1908) 7 CLR 277 R v Milkboard 1944 VCR 187 Skalkos v Assif [2002] NSWSC 1221 Spurling v Development Underwriting (1973) VR 1 Thompson v The Australian Capital Television Pty Limited (1994) 120 ALR 317
PARTIES:	Michelle Mafra (Plaintiff) Alison Egan (Defendant)
FILE NUMBER(S):	1856/03
COUNSEL:	Mr D Wheelahan QC and Mr D K Barran (Plaintiff) Mr R R Stitt QC and Mr Wilson (Defendant)
SOLICITORS:	Keddies (Plaintiff) Sparke Helmore (Defendant)

JUDGMENT

HIS HONOUR:
The procedural bacground to the motion
1. In the interests of keeping this trial moving I propose to deliver an ex tempore judgment which of necessity is not as detailed as it might have been had this application come before the Court by way of a separate preliminary application in advance of the trial.

2. In the course of opening this case, counsel for the plaintiff indicated that at the conclusion of the evidence the plaintiff intended to argue that I should reject certain certificates issued under s 61(1) of the Motor Accident's Compensation Act 1999 ("the Act") under s 61(4) on the grounds of denial of procedural fairness in connection with the issue of the certificates. The certificates in question were issued by Professor McCloud on 21 April 2003 and Dr Lovell on 16 December 2003.

3. The defendant submitted that any substantive attack on these certificates should be done formally on a motion supported by evidence, as a threshold question, because determination of this question affected the whole of the plaintiff's case on causation and consequently impacted on the conduct of the trial in its entirety and the evidence to be led.

4. I was referred to relevant authorities and taken through the various arguments relevant to the question.

5. It emerged that there were two main preliminary issues. The first related to whether the certificates in question should be rejected on the grounds of a denial of procedural fairness.

6. If that issue is decided in favour of the plaintiff, any preliminary impediments to the plaintiff's case fall away and the plaintiff can proceed to prosecute her claim on all the matters in issue and can include in her case a claim for non-economic loss.

7. In addition the defendant will be on notice at the outset whether she needs to meet a case on non- economic loss.

8. To leave this issue for determination at the conclusion of the trial, as urged by the plaintiff, would be to cause too many procedural complications in the running of the trial.

9. The second main preliminary issue is whether the plaintiff is precluded by reason of the certificates from leading any evidence as to causation on all issues, or more correctly, on all heads of damage claimed.

10. The defendant submitted that the conclusive nature of the certificates precluded the plaintiff from agitating at the trial any issue of causation already determined by the certificates.

11. This was a position which would affect the admissibility of any medical evidence on causation which the plaintiff proposed to call in this hearing, and in that sense there is also a threshold issue best determined at the outset of the hearing rather than in the course of it or at its conclusion.

12. I therefore ordered that these threshold issues be determined by way of formal motion supported by evidence.

13. It was a further consideration that the Motor Accident Authority (MAA) had indicated a desire to intervene and be heard on these issues. In the event that did not occur.

14. It is unfortunate that such issues fall to be determined on the first day of the trial rather than at some preliminary stage long before. Be that as it may, I believe they are issues which needed to be determined before any evidence is led.

15. Another reason why issues such as these should preferably be determined prior to the trial, or before evidence is led, lies in the exercise of the discretion in s 61(6) of the Act. That section requires the Court to consider whether it is appropriate to substitute its own determination of the degree of permanent impairment in accordance with s 133 of the Act. To do that it would have required me to apply the MAA medical guidelines or the AMA4 guides. To leave that issue to the end of the trial is to pre-empt the ability of the Court to exercise the discretion whether to apply s 61(5) and adjourn the proceedings and refer the matter back to the assessor.

16. The plaintiff filed a notice of motion in court this morning, supported by an affidavit, seeking orders that the certificates of Dr Lovell dated 16 December 2003 and Dr McCloud dated 19 November 2003 be set aside under s 61(4) of the Act, on the grounds of denial of procedural fairness.

17. The application to set aside the certificate of Dr McCloud was abandoned in argument on the basis that the plaintiff was content to seek to set aside only the certificate of Dr Lovell. That would mean, if the application were successful, that the plaintiff could continue to agitate for an award of damages for non- economic loss based on a psychiatric condition.

18. The application also asked for a ruling that the certificates are conclusive only as to the degree of whole person impairment and not in respect of causation as a result of the injury.

The causation argument
19. It is convenient if I deal firstly with the second preliminary issue, namely, whether the certificates are conclusive as to causation for all purposes as opposed to the more limited nature of conclusiveness, namely, the degree of permanent impairment.

20. The defendant argues that by reason of s 58(1)(d) of the Act the certificates constitute conclusive evidence of not just the fact of the degree of permanent impairment but also the issue of causation generally as between permanent impairment and the injury caused by the motor accident: s 61(2).

21. The defendant's position is supported by the judgment of Hungerford AJ, in this court, in Pham v Shuron 7 November 2005. In that decision his Honour concluded that:
"Issues of evidence as to causation dealt with in the certificate are pursuant to s 61(2) conclusive.
If then they are conclusive it seems to me that the findings sought for the defendant on the present
certificates must be successful.
...If, as I have found, causation of the permanent impairment is covered by the matters then it is
covered for all purposes."

22. The plaintiff's position, however, is supported by the judgment of Judge Ainslie-Wallace of this Court in Richards v Websteron 2 August 2005. Her Honour there said: "The Act does not require the assessing doctor to provide some assessment of causation nor would that be feasible in the context of the Act. I do not regard her report as being other than an assessment of the plaintiff in terms of the statutory threshold impairment": at par 43.

23. The plaintiff also relies upon the decision of the Court of Appeal in Brown v Lewis [2006] NSWCA 87. It was there held that a certificate is conclusive evidence only of the fact that the degree of permanent impairment is greater than 10 per cent. It went on to say:

"If the certificate addresses anything else, it is evidence (but not conclusive evidence) as to the matters certified) s 61(3): par 17.

24. Applying that principle to this case the certificate can be conclusive as to nothing more than the fact that the degree of permanent impairment is not greater than 10 per cent.

25. That judgment goes on to say that all a certificate does is unlock the door to an award of damages for non-economic loss. Conversely, for the purposes of this case, all the certificate does is keep the door locked to an award of damages for non-economic loss.

26. On that basis s 61 merely operates as a procedural provision and cannot be relied upon as to the substantive determination on causation for which the defendant contends.

27. In my view that is determinative of that issue, however, I mention two further reasons as to why I do not consider the defendant's position is correct.

28. First, I do not consider it was the intention of the legislature to require the issue of causation to be determined exclusively as a medical adjudication rather than a legal one. In my view the intention of the legislature was to make only the assessment of the degree of permanent impairment a matter of conclusive evidence and nothing more.

29. Secondly, I agree with the plaintiff's submissions that for the legislature to take away common law rights it must do so expressly, in fact it must do so with "irresistible clearness": Potter v Minahan (1908) 7 CLR 277 at 304; see also Bropho v The State of Western Australia (1990) 93 ALR 907 at 215; Thompson v The Australian Capital Television Pty Limited (1994) 120 ALR 317 at 329; see also American Dairy Queen (Queensland) Pty Limited v Blue Rio Pty Limited (1981) 147 CLR 677.

30. There is in this legislation no irresistible clearness as to taking away of the rights of a plaintiff at common law to damages, other than damages for non-economic loss.

31. I was referred to the second reading speech and in particular a passage which indicates that s 61 was included in the legislation to remove 'the adversarial and litigious approach' to medical decisions. There was a reference to the "duelling doctor phenomenon". However, those remarks must, in the absence of irresistible clarity of wording in the actual legislation, be discounted.

32. The defendant submitted that this outcome is 'bizarre,' 'absurd' and undesirable. I agree with all of that. But, such anomalies do occur when parliament seeks to superimpose legislative limitations over some aspects of pre-existing common law rights. It does not, however, persuade me that the legislature intended to deprive plaintiffs injured in motor vehicle accidents of the right to damages under heads of damage other than non economic loss pursuant to the medical assessment process.

The procedural fairness argument

33. I come then to the application to set aside the certificate of Dr Lovell, or in the words of s 61(4) to reject his certificate.

34. The plaintiff set out the various grounds which it was said constituted procedural unfairness on the part of Dr Lovell in the notice of motion, at 1(a) to (d).

35. Ground 1(d) falls away because of the ruling I have made on the causation argument. It was conceded in argument that grounds 1(a) - (c), on analysis, all boiled down in substance to the failure of Dr Lovell to provide adequate reasons.

36. In this regard it was submitted by the defendant that the grounds relied on were not substantiated by any evidence, and I agree with that submission. I think it is appropriate that at this point I deal with some general principles in relation to procedural fairness and in particular the so called "hearing rule".

37. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the Tribunal is acting, the subject matter being dealt with and so forth. One essential is that the person affected should have a reasonable opportunity of presenting his or her case: Russell v The Duke of Norfolk (1949) 1 AER 109 at 118.

39. The onus of establishing that the standard has not been met lies on the party who seeks to prove a breach of natural justice. It must be shown the procedures were 'unfair in the circumstances': Rose v Bridges (1997) 79 FCR 378 at 386.

40. There is limited potential for general principles. Previous decisions have limited precedent value and can only provide useful guidance. There are no general principles as such, only factors to be considered and given weight as part of a balancing process: see Judicial Review of Administrative Action (3rd Edition) (Law Book Co 2004) at pp 480 and 485.

41. The statutory framework in which the decision maker operates is of crucial importance: Mobil Oil Australia Pty Limited v Federal Commissioner for Taxation (1963).

42. The seriousness of the consequences of the affected individual is a consideration of importance: Eaton v Overland (2001) 67 ALD 671 at 716. In this context there is a principle that the "legitimate expectations" of the person affected can be used as a means of giving particular content to the requirements of procedural fairness: re Minister for Immigration and Ethnic Affairs ex parte Lam (2003) 195 ALR 502.

43. Urgency can be a factor: Marine Hull and Liability Insurance Co Limited v Hurford (1985) 10 FCR 243.

44. Cost and efficiency are also factors in the balancing process: Barrett v Howard (2000) 96 FCR 428. This factor is also to be considered as part of the balancing process particularly if the legislature had expressed a clear intention of providing a more cost effective process by establishing the administrative process in question.

45. The nature of the decision maker and the width of the discretion are also regarded as factors, particularly having regard to the statutory context of the decision. In the present case it is in my view a very relevant consideration that the adjudicators are medical assessors making an assessment based on expert medical knowledge and experience: Spurling v Development Underwriting 1973 VR 1 at 11; R v Milkboard (1944) VCR 187 at 197; see also Issot v North Sydney Leagues Club [2005] NSW WCC PD 38 at par 56. This factor has been described as being part of the 'doctrine of official notice'.

46. The party challenging a decision on the grounds of procedural unfairness must establish that even if the decision were to be revisited and any procedural unfairness addressed that the result would produce a materially different decision.

47. The plaintiff has not satisfied me that a materially different decision would emerge in any event.

48. That brings me to the issue as to reasons which was the essence of the plaintiff's application.

49. The first thing I would say about the reasons is that even if it were Dr Lovell's reasons which are the relevant reasons, they are not in my view inadequate: see Campbelltown City Council v Vegan [2004] NSWSC 1129 at par 89. So long as an explanation states the essential ground upon which the decision rests that is sufficient: see Madden v New South Wales Ministerial Corporation [1999] NSWSC 196 at par 16; Skalkos v Assif [2002] NSWSC 1221 and Advanced Gaining Technologies Pty Limited v Ahearn [1999] NSWSC 45.

50. However, in this case in my view it is not Dr Lovell's reasons that I should look to alone. There was an application made by this plaintiff by way of a review of Dr Lovell's certificate, under the Act, to a Review Panel.

51. The defendant submits that that application contains substantially the same assertions as this notice of motion and that those issues were raised and dealt with by the review panel. In that regard I agree with the defendant's submission that it is the reasons of the Review Panel to which the Court needs to look under section 61(4), and there has been no criticism of those reasons here.

52. The review process involves a hearing de novo: see Vegan. The Review Panel, having given its reasons, affirmed and thereby adopted the certificate of Dr Lovell and for all intents and purposes it is the certificate affirmed by the Review Panel, for the reasons it gave, which are relevant here.

53. For similar reasons, I am not satisfied that if the relevant decision were to be revisited, either by Dr Lovell or by the Review Panel, it would be materially different from the present decision.

54. For those reasons the plaintiff has not made out its application that I should reject the certificate of Dr Lovell.

55. I will not, therefore make order 1 sought in the motion. I note that order 2 is withdrawn and I will make an order in terms of order 3 sought in the notice of motion. I will reserve the costs of the motion, not necessarily beyond the length of this trial.