Motor Accidents Authority of New South Wales v Mills

[2010] NSWCA 82

Reported Decision: 78 NSWLR 125

New South Wales

Court of Appeal

CITATION:	Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82
HEARING DATE(S):	18 March 2010
JUDGMENT DATE:	23 April 2010
JUDGMENT OF:	Giles JA at 1; Tobias JA at 88; Handley AJA at 89
DECISION:	(1) Quash the decision made by Coorey DCJ on 1 May 2009 so far as his Honour’s order included the words “save that in respect of the back injury I refer only the question of the extent of the plaintiff’s whole impairment and not the question of whether or not that impairment (or the injury giving rise to it) was caused by the accident the subject of these proceedings”; (2) Quash the decision made by Coorey DCJ on 21 September 2009 ordering that the application to vary the orders of 1 May 2009 be dismissed; (3) Order the first respondent to pay the applicant’s costs, and that he have a certificate under the Suitor’s Fund Act; (4) Liberty to the second respondent to apply within 7 days for an order that another party pay its costs by lodging written submissions in support of that application in the submissions box on Level 11 and by serving the party or parties affected, such parties to lodge their submissions in answer in the submissions box within a further 7 days
CATCHWORDS:	DAMAGES - threshold for damages for non-economic loss under the Motor Accidents Compensation Act 1999 - referral to medical assessor for assessment of degree of permanent injury - whether referral again under s 62(1) can be confined to assessment of the degree of permanent impairment, excluding question of causation - interpretation of s 62(1) and scheme for medical assessment - on facts, Act prior to 2007 amendments applied - court not entitled to make causation finding binding on the parties in the assessment - limited referral not permitted.
CATEGORY:	Principal judgment
CASES CITED:	Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587; Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199; re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609; Murdoch v Davis [2005] NSWCA 466; (2005) MVR 415; Pham v Shui [2006] NSWCA 373; (2006) 47 MVR 231; Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591.
PARTIES:	Motor Accidents Authority of New South Wales - Appellant David Mills - First Respondent Nominal Defendant - Second Respondent
FILE NUMBER(S):	CA 2009/298470
COUNSEL:	C Spruce - Appellant A J Stone - First Respondent W Fitzsimmons - Second Respondent
SOLICITORS:	I V Knight, Crown Solicitor - Appellant Stacks/Goudkamp - First Respondent Curwoods - Second Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 700/03
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	1 May 2009 and 21 September 2009

CA 2009/298470
DC 700/03

GILES JA
TOBIAS JA
HANDLEY AJA

Friday 23 April 2010

MOTOR ACCIDENTS AUTHORITY OF NSW v MILLS

Judgment

1 GILES JA: The Motor Accidents Authority of New South Wales (“the Authority”) claims an order or orders, under s 69 of the Supreme Court Act 1970, quashing or setting aside decisions made by Coorey DCJ in proceedings between Mr David Mills and the Nominal Defendant. The decisions were made on 1 May 2009 and 21 September 2009. At issue is whether the power in s 62(1) of the Motor Accidents Compensation Act 1999 (“the Act”) to refer again for medical assessment under Pt 3.4 of Ch 3 of the Act could be exercised to require assessment only of the degree of permanent impairment, excluding whether the permanent impairment was as a result of injury caused by the relevant motor accident.

2 For the reasons which follow, in my opinion the referral again pursuant to s 62(1) ordered by his Honour could not be confined in that way. Relief under s 69 should be granted.

The proceedings

3 On 10 April 2000 a motor vehicle driven by Mr Mills ran off the Wiseman’s Ferry Road and came to rest in bushland.

4 On 21 February 2003 Mr Mills brought proceedings in the District Court against the Nominal Defendant, claiming damages for injuries said to have been suffered in the accident. He alleged that he had run off the road when forced to take action to avoid a motor vehicle travelling in the opposite direction on the incorrect side of the road, and that after due inquiry and search the other motor vehicle could not be identified. The injuries particularised were a closed head injury and traumatic brain injury, scalp laceration, a rib fracture, and a soft tissue injury to the left hip.

5 The Nominal Defendant denied or did not admit all allegations, including the suffering of injury, and alleged contributory negligence.

Assessments under the Act were made

6 During 2003 there was referral for assessment under Pt 3.4 of whether Mr Mills’ injuries had stabilised and whether the degree of his permanent impairment as a result of the injury caused by the motor accident was greater than 10 per cent. Pursuant to s 133(3) of the Act, psychiatric or psychological injury was excluded from this assessment.

7 The injuries to be assessed were described in the resulting assessment as –

“ · Ribs fractures
· · Scalp laceration
· Left Hip – soft tissue injury
· Lumbar Spine injury”.

It will be noted that a lumbar spine injury had not been one of the particularised injuries. Presumably the parties were proceeding on the basis that it would be brought into the proceedings.

8 The assessment was undertaken by Dr Sam Perla. He issued a certificate dated 22 December 2003 stating that all the injuries had stabilised, and a certificate of the same date stating that the degree of permanent impairment in relation to scalp laceration could not be determined at that time; that there was no permanent impairment in relation to ribs fractures and lumbar spine injury; and that the permanent impairment in relation to the left hip soft tissue injury was less than 10 per cent.

9 Only the opinion in relation to lumbar spine injury is presently relevant. In the reasons accompanying the certificate Dr Perla expressed the opinion “that any symptoms in relation to his lumbar spine are unrelated to the motor vehicle accident and hence give rise to no permanent impairment”. This was in part because of Dr Perla’s examination of Mr Mills, but also because Mr Mills had said in consultation that there was no back injury at the time of the accident and because there was “no contemporaneous history on the medical certificate of any low back injury” and no mention of low back pain in the hospital report.

10 At some time there was also a referral for assessment under Pt 3.4 in relation to psychiatric or psychological injury. The referral had a tortuous progress, coming ultimately to a certificate by Dr Maxine Walden dated 10 April 2006 of less than 10 per cent permanent impairment because “Nil injuries related to the motor vehicle accident”. In her reasons Dr Walden explained that she found no diagnosable psychiatric disorder.

The trial before Coorey DCJ

11 When the proceedings were heard by the judge, amended particulars were filed in court. They included in the injuries lumbar disc protrusions, back and left leg pain and numbness in the left leg, and paraesthesia in both hands and feet. We did not have a transcript, and the detail of the course of the trial is not known. It was agreed that the certificates and accompanying reasons of Dr Perla and Dr Walden were tendered and were in evidence. His Honour gave judgment on 14 December 2007.

12 His Honour held that the accident had occurred as claimed by Mr Mills and that negligence of the driver of the other vehicle had caused it, and that there had been due inquiry and search. He held that Mr Mills had not been contributorily negligent. He concluded “that the Nominal Defendant is liable for the injury suffered by the plaintiff”.

13 His Honour then turned immediately to what he described as an application by Mr Mills that there be “referred for re-assessment his whole person impairment in respect of his back and his psychological/brain injury”. The application invoked s 62 of the Act, which relevantly provided -

“ 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) …

(b) by a court or claims assessor.


(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.”

14 His Honour held that there should be referral for re-assessment in respect of Mr Mills’ back injury and his psychological/brain injury.

15 As to the back injury, the statement of his Honour’s findings began -

“i. The plaintiff’s back injury is causally related to the motor vehicle accident. I do not accept the defendant’s submission that the weight of evidence shows that the back is unrelated to the motor vehicle accident.”

16 In the findings his Honour accepted Mr Mills’ submission that Dr Perla’s assessment had been based on “a number of false assumptions”. He considered that the fact that Mr Mills told doctors that his back pain was not due to the accident did not mean that it was unrelated to the accident, because what Mr Mills said “is contradicted by the evidence of the ambulance report, the Gosford hospital records, the Hawkesbury hospital notes and the evidence of Dr Stubbs and Professor Lance”. He regarded Mr Mills as an inaccurate historian, and thought that the lack of back complaint was not surprising because after the accident “the back problem was only one of a large number of problems” and “at various times his back complaint was outweighed by his other complaints”.

17 As to the psychological/brain injury, his Honour was of the view that Dr Walden’s assessment “was based on a number of misconceptions of the facts” as described in Mr Mills’ submissions. It is not necessary to detail them. There was not, however, the same direct finding as to causation.

18 The judge did not otherwise consider the injuries suffered by Mr Mills, or any effect on earning capacity of any incapacity to which they gave rise. The reasons immediately concluded, under the heading “Order” -

“The back injury, the brain injury and/or the psychological injury are referred for assessment pursuant to S 62(1)(b) of the Motor Accidents Compensation Act 1999.
I invite the plaintiff to prepare minutes of proposed orders being sought and to submit them to the defendant”.

19 Presumably in accordance with short minutes, on 29 January 2008 orders were sealed in the terms -

“1 Pursuant to Section 62(1)(B) [sic] of the Motor Accidents Compensation Act 1999 this matter is referred for re-assessment by the Medical Assessment Service of the plaintiff’s back injury, brain injury and psychological injury.

2. The re-assessment process to be expedited.

3. Liberty to apply for the purposes of the re-listing [sic] the matter for a trial of the issue of damages.

4. No orders made as to costs at this stage.”

Dispute over the re-assessment

20 For the purposes of the re-assessment both Mr Mills and the Nominal Defendant provided written submissions to the Authority, it seems including a deal of documentary material to be put before the medical assessor. The submissions were not before us, and their detail does not matter. It is evident from the letter next mentioned that the Nominal Defendant’s submissions addressed whether any back injury was caused in the motor accident.

21 On 17 November 2008 Mr Mills’ solicitors wrote to the Authority to the effect that causation of the back injury and the brain/psychological injury by the motor accident had been determined by the judge, and that all that remained to be assessed was (as to the back injury) the degree of permanent impairment and (as to the brain/psychological injury) the nature of the injury and its extent. The solicitors said that “[t]he issue of causation having been determined by his Honour, the matter is no longer available to be ventilated before the Medical Assessment Service.” They asked that the Nominal Defendant’s submissions in relation to causation not be put before the medical assessor.

22 The Authority replied by a letter dated 8 December 2008, with a copy to the Nominal Defendant’s solicitors, relevantly saying -

“Your comments in relation to the issue of injury causation have been noted, however the Assessor is bound by the MAA Permanent Impairment Guidelines to make a decision regarding causation of injuries. Further, in accordance with Section 65(3) of the Motor Accidents Compensation Act 1999, I am unable to direct the Assessors with regard to any of their decisions that affect the interests of the parties to a medical assessment.”

The order of 1 May 2009

23 Apparently as a result of this reply, Mr Mills applied to the judge for what was called in his solicitors’ later letter “clarification” of the orders made on 14 December 2007. The application was heard on 1 May 2009. Again, a transcript of the hearing was not available. It was common ground that submissions were made by Mr Mills and by the Nominal Defendant. His Honour gave ex tempore reasons.

24 His Honour recorded the recollection that at the trial “one of the big issues was whether or not the plaintiff’s back injury was caused by the motor vehicle accident”. He said that he “made a number of findings”, and summarised them; one was that “the plaintiff’s back injury was causally related to the motor vehicle accident”.

25 His Honour continued -

“The submission as has been put by both counsel, but in particular by Mr Toomey [counsel for Mr Mills], that the issue for determination was whether or not the back injury was caused by the accident. Mr Toomey says that that was a matter which was fought, that is, whether or not the back injury was caused by the accident, that was the matter for determination. I made a determination and Mr Toomey says that the defendant should not be allowed to re-visit or to re-litigate that issue. He submits that in effect what the defendant is trying to do is to re-litigate the question of causation of the back injury. Mr Fitzsimmons [counsel for the Nominal Defendant] says not so, that impairment is a different issue. Mr Fitzsimmons says that the impairment would encompass a search which goes beyond the mere car accident and the back injury.
My mind has fluctuated in this matter I must say. Both arguments are appealing. But upon reflection it seems to me that consistent with my finding initially in this matter, that is, consistent with my determination of the issue between the two parties, I was satisfied that the back injury was caused by the motor vehicle accident. And it seems to me that any question of causation in relation to an impairment that comes from the back injury ought not to be re-litigated, therefore I make an order in the following terms:
‘Pursuant to s 62(1)(b) of the Motor Accident’s Compensation Act (1999) [sic] I refer the matter for re-assessment by the Medical Assessment Service of the plaintiff’s back injury, brain injury and psychological injury, save that in respect of the back injury I refer only the question of the extent of the plaintiff’s whole impairment and not the question of whether or not that impairment (or the injury giving rise to it) was caused by the accident the subject of these proceedings’.”

26 It appears that the application was made, or at least pressed, only with respect to referral again in relation to the back injury. A formal order in the terms above was subsequently taken out. It was not expressed as a variation of the earlier order, but as if it were the only order made concerning referral again.

27 On 5 May 2009 Mr Mills’ solicitors wrote to the Authority informing it of the order, and asking that appointments for assessment be made and that the order be “forwarded to the assessors undertaking the assessments”.

The decision of 21 September 2009

28 The Nominal Defendant filed a notice of intention to appeal from the decision of 1 May 2009, but on 13 July 2009 informed the Authority that an appeal would not be pursued.

29 On 7 August 2009 the Authority filed a notice of motion in the District Court in which it sought that the order made on 1 May 2009 be varied. As amended on 24 August 2009, the application came to be that the Authority “be granted leave to appear and be heard in relation to the order made by the Court in its absence on 1 May 2009”, and -

“2. That, pursuant to UCPR 36.16(3), the Court vary its order dated 21 May 2009 by deleting from the order the words ‘save that, in respect of the back injury, the Court refers only the question of the extent of the Plaintiff’s whole person impairment and not the question of whether or not that impairment (or injury giving rise to it) was caused by the accident the subject of these proceedings’.”

30 The application was heard by the judge on 21 September 2009. Submissions were received from the Authority, from Mr Mills and from the Nominal Defendant. His Honour again gave ex tempore reasons.

31 His Honour accepted that the Authority had a legitimate interest whereby it should have been served with the notice of motion pursuant to which his order of 1 May 2009 had been made, and that the order was interlocutory and could be set aside or varied. He said that “in that situation it would be proper for the Authority to have a right of appearance”.

32 However, his Honour declined to vary the order. He said that although his mind had fluctuated he accepted the submissions made on behalf of Mr Mills, which he described. The submissions were, in summary, that Pt 3.4 applied to disagreement over the degree of permanent impairment as a result of the injury caused by the motor accident; that there was no disagreement as to causation of the back injury because that had been determined by the court; and so that the only outstanding issue was putting a percentage value on the permanent impairment and “the back injury/causation situation is not an issue between these parties”. His Honour noted that there can be limited referrals, for example as to specified injuries only.

33 His Honour also referred, with apparent acceptance, to the submission that the Nominal Defendant had argued on 1 May 2009 that there should not be any fetter placed on the order for referral and that “these particular matters that were argued today have already been argued and determined”. If that was part of his Honour’s reasoning, it should not have been. The Authority, to which he had given leave to appear and be heard because it should have been given notice of the earlier application, had not been party to the argument and determination on 1 May 2009.

34 The order stated by his Honour at the conclusion of his reasons was that “the application by the Authority today is dismissed”. This was not correct, as the application had succeeded to the extent of leave to appear and be heard. The order was later varied by consent to the orders that the Authority’s “application for leave to appear is granted” and its “application to vary orders of 1 May 2009 is dismissed”.

The application in this Court

35 On or about 20 November 2009 the Authority filed in this Court a summons claiming the orders under s 69 earlier mentioned; specifically -

“1. an order under s 69 of the Supreme Court Act 1970 quashing or setting aside the decision of the third respondent made on 1 May 2009.

2. In the alternative to order 1:

a. an order under s 69 of the Supreme Court Act 1970 quashing or setting aside the decision of the third respondent made on 21 September 2009, dismissing the applicant’s application to vary the order made by the third respondent on 1 May 2009 (‘the applicant’s application’); and

b. an order under s 65 of the Supreme Court Act 1970 directing the third respondent to redetermine the applicant’s application according to law.”

36 The respondents to the summons were Mr Mills, the Nominal Defendant, and as the third respondent the District Court of New South Wales. The District Court filed a submitting appearance. The Nominal Defendant supported the Authority’s application. Mr Mills opposed it.

37 The relief in the nature of certiorari was claimed by the Authority on the basis of jurisdictional error. It contended that the judge had no power to order that the referral again in relation to the back injury exclude the issue of causation.

Regard to amendments to the Act?

38 The power to refer again came from s 62(1) of the Act. The extent of the power is determined by construction of s 62, understood in its context in the Act.

39 The Act was amended by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (“the 2007 Act”). There were amendments to a number of sections within Pt 3.4. The 2007 Act commenced on 1 October 2008. By the transitional provisions, the amendments did not apply in respect of a motor accident occurring prior to its commencement, save (relevantly) that an amendment to Ch 3 “extends to a matter referred for assessment under Pt 3.4 after the commencement of the amendment even if the motor accident concerned occurred before that commencement”.

40 In my opinion, there was a referral for assessment on 1 May 2009, distinct from and replacing the referral on 14 December 2007. There is no indication that the order of 1 May 2009 was pursuant to the slip rule. It was made after hearing submissions, and brought a substantive change to the earlier order. It was framed as an order in its own right, effectively replacing the earlier order, and became the operative order for the assessment. A referral again brings a fresh assessment, and is itself a referral for assessment.

41 However, the amendments applied to “a matter referred for assessment” after 1 October 2008: that is, to what was referred for assessment, not to the process of referral for assessment. The amended Act would apply to the assessment to be carried out pursuant to the order of 1 May 2009, but in my opinion the amendments are not to be taken into account when considering the process of referral again by the judge’s order on 1 May 2009. Pursuant to s 62(1), his Honour referred a matter for assessment. Until he did so, there was not a matter referred for assessment to which the amendments extended.

42 For present purposes, regard should not be had to the amendments by the 2007 Act. The unamended Act applied.

Relevant provisions of the Act

43 The starting-point for present purposes is ss 131 and 132 -

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

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

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

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

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


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

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

(4) Nothing in this section prevents:


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

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

44 Section 133 provided -

“ 133 Method of assessing degree of impairment

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

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


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

(b) if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) … “

45 I go then to Pt 3.4. The definitions in s 57 included a definition of “medical dispute” to mean “a disagreement or issue to which this Part applies”. Section 58 described the disagreement or issue to which the Part applied -

“58 Application

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters:

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

(b) whether any such treatment relates to the injury caused by the motor accident,

(c) whether an injury has stabilised,

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

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

(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

46 Referral for medical assessment was pursuant to s 60(1) -

“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.”

47 Section 61 provided -

“61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to:


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

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

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

(c) whether an injury has stabilised,
is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.


(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

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

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

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

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

(8) This section:


(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and

(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b), (b1) or (c).

(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.”

48 For convenience, I repeat the relevant part of s 62 -

“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) …
(b) by a court or claims assessor.

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.”

49 Section 63 provided for review by a review panel of an assessment by a single medical assessor. The review panel could confirm the certificate of assessment of the single medical assessor, or revoke that certificate and “issue a new certificate as to the matters concerned” (s 63(4)). Section 61 applied to any such new certificate (s 63(5)).

Some features of the scheme

50 Medical assessment under Pt 3.4 went beyond degree of permanent impairment, see the various “matters” in s 58. The scheme in relation to an injured person’s degree of permanent impairment had the following features.

51 First, a degree of permanent impairment as a result of the motor accident greater than 10 per cent was necessary before damages for non-economic loss could be awarded (s 131). In the event of dispute, there had to be a medical assessment of the degree of permanent impairment under Pt 3.4 (s 132).

52 Secondly, that assessment was given the status of conclusive evidence (s 61(2)(a), but see below as to the extent of conclusiveness). However, the court could at any time refer a matter again for assessment (s 61(8)), and to that extent the conclusive evidence status could be overridden.

53 Thirdly, save in one circumstance the court could not itself assess degree of permanent impairment: only if the medical assessor’s conclusive certificate was rejected on the grounds of denial of procedural fairness, as an alternative to referral again if it was considered appropriate (s 61(6), (7)).

54 Fourthly, an assessment was made under Pt 3.4 where there was disagreement about the matter of the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident (s 58(1)(d)). In such a case, it was the disagreement about that matter which was referred for assessment (s 60(1)), and that matter was what was certified (s 61(1)), including on review (s 63(4)).

55 Fifthly, it was that matter which was referred again (s 62(1)), with a fresh certificate as to the matter (s 62(2)).

56 The importance of the concept of a matter in Pt 3.4 was noted in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 at [24] (Giles JA, Allsop P relevantly agreeing). Section 62(1) used that concept, not the concept in the defined phrase “medical dispute”. This was consistent with a scheme by which, save where a certificate had been rejected on grounds of procedural fairness, the court could not itself assess degree of permanent impairment, but could order referral again of the matter originally certified.

The extent of conclusiveness

57 What follows is not essential to my conclusion. Whether under the unamended Act the medical assessor’s certificate was conclusive as to degree of permanent impairment (s 61(2)(a)), and only evidence as to causation of that permanent impairment by the motor accident (s 61(3)), was not clearly debated at the hearing. At least initially, the applicant’s position was that the certificate was not conclusive as to causation, although that became rather obscure. The Court was referred to Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881, in which Johnson J held to the contrary (see later in these reasons). The non-conclusivity of the certificate as to causation was questioned with reference to ss 131 and 132. Recognising the incomplete debate, my view of the unamended Act in this respect should be expressed as part of the statutory context.

58 Where there was medical assessment of the degree of permanent impairment under the Act, the statutory function of the certificate was to establish whether or not the 10 per cent threshold in s 131 was reached. The assessment did not thereafter confine the award of damages for non-economic loss: for example, if the assessed degree of impairment was 15 per cent, to 15 per cent of maximum damages for non economic loss stipulated in or under s 134 of the Act (Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199). The only function was to open, or keep closed, the gateway to an award of damages for non-economic loss. (Perhaps for that reason, the 2007 Act amended s 58(1)(d) specifically to refer to the 10 per cent threshold, rather than degree of permanent impairment in general.)

59 The statement of the threshold in s 131 contained the composite phrase, “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident”, with the two elements of degree of permanent impairment and of causation of the degree of permanent impairment. The same phrase with its two elements was found in ss 131, 133(1) and 58(1)(d).

60 Other provisions in Pt 3.4 used the shorter phrase, “the degree of permanent impairment” (s 61(2)(a), (b); s 132(1), (2), (3); s 133(2)). Sometimes the phrase was related to the requisite percentage (s 61(2)(a); s 61(6)), without express reference to the element of causation.

61 That element must, however, be read into the use of the shorter phrase. Assessment of degree of permanent impairment without regard to causation from the motor accident was not relevant to determining whether the threshold in s 131 was reached, and would depart from the description of the matter in s 58(1)(d). A medical assessment of degree of permanent impairment without regard to causation from the motor accident had no statutory basis or function. That the shorter phrase included the element of causation is clear from its use in s 132, because the point of the degree of permanent impairment was sufficiency for an award of damages for non-economic loss. It is also clear from s 133(2), because the shorter phrase related back to the composite phrase in s 133(1).

62 It was the same, in my opinion, where s 61(2)(a) and s 61(6) referred to a certificate “as to whether the degree of permanent impairment of the injured person is greater than 10%”. This meant permanent impairment as a result of the injury caused by the motor accident. The conclusive effect of such a certificate extended to the element of causation, and the determination by the court of the degree of permanent impairment of the injured person, permitted under s 61(6), had to be assessed in accordance with s 133 which implicitly referred back to the composite phrase in s 133(1). The non-conclusive effect as to other matters (see s 61(3)) still had work to do in relation to the impairment of earning capacity (and possibly for other purposes, see Pham v Shui [2006] NSWCA 373; (2006) 47 MVR 231, below, but that is another matter).

63 Section 62(2) now refers to a certificate “as to a medical assessment matter”, and this conclusion is clear on the terms of the amended Act. Prior to the amendment by the 2007 Act, in my opinion the shorter phrase picked up the whole of the matter in s 58(1)(d). The conclusiveness of the medical assessment, as certified, included the medical assessor’s finding that the permanent impairment was or was not as a result of the injury caused by the motor accident.

64 In Ackling v QBE Insurance (Australia) Ltd at [80] Johnson J correctly so held. In this Court it was rather indirectly suggested that Pham v Shui stands for the contrary position. I do not think it does.

65 In Pham v Shui the trial judge held that the certificate of a review panel conclusively established the degree of permanent impairment and whether the degree of permanent impairment was caused by the motor accident, and that the conclusiveness extended to assessment of both non-economic loss and economic loss. The trial judge gave the certificate conclusive effect by accepting, and accepting only, the injuries found by the assessor to have been sustained in the motor accident. The certified degree of permanent impairment was less than 10 per cent, and this effect was given in arriving at damages for economic loss.

66 On appeal Santow JA, with whom Bryson JA and Brereton J agreed, held at [90] that the certificate “was required for the purpose of determining whether, within s 131 of the MACA, damages could be awarded for non-economic loss”, and that s 61(2)(a) “can have no other meaning than that the certificate’s conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%”.

67 His Honour’s reasons were concerned with conclusiveness for the purpose of assessing economic loss. He went on to say, with reference to the reasons of Mason P in Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587, that he did not exclude the relevance of a non-conclusive certificate to assessing economic loss but “extreme caution” was required as to likely relevance. This issue does not arise in the present case.

68 The reasons of Santow JA included, however, reference to “caused by the motor accident” in s 58(1)(d), and his Honour said -

“[96] Mr Stitt, QC for the opponent placed great emphasis on the words “caused by”. He contended that this language, with other textual indications, meant that the certificate was conclusive as to what he called the medical aetiology, meaning the medical causation of the relevant “injury”. So much can be accepted. But what does not follow is that the certificate, incorporating as it does reasons which may range from surmise to certitude, are thereby rendered conclusive, outside of the strict limits of s 61(2). In particular there is no conclusivity extending to a matter outside s 61(2) such as that in s 58(1)(d) (the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident). Rather, matters falling outside s 61(2) are simply capable of constituting evidence, but not conclusive evidence, as to the non-s 61(2) matters in so far as they are “certified” in terms of s 61(3).”

69 I do not understand his Honour to have said that the conclusiveness in s 61(2)(a) did not include causation by the motor accident. That was not the issue. In saying that the conclusiveness did not extend to something outside s 61(2) “such as that in s 58(1)(d)”, I understand his Honour to have been referring to the particular degree of permanent impairment as a result of the injury caused by the motor accident, for example a degree of 7 per cent or 15 per cent, as distinct from whether the degree of permanent impairment was or was not greater than 10 per cent.

Conclusion: the referral again could not exclude causation of the back injury

70 There was strong emphasis in the Act on leaving for assessment under Pt 3.4 whether there was the degree of permanent impairment necessary for an award of damages for non-economic loss, meaning permanent impairment as a result of the injury caused by the motor accident. Reference to the legislative history, described in Murdoch v Davis [2005] NSWCA 466; (2005) 55 MVR 415, confirms this. Save where a certificate was vitiated by procedural unfairness, the court was excluded from the assessment, and the medical assessor’s certificate was conclusive.

71 There was a safety valve, in the power to refer again for assessment under s 62(1). For the purpose of deciding whether to refer again, the court could enter into the degree of permanent impairment, including its causation by the motor accident. But the court could not itself determine the matter of whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10 per cent. On one view, all the court could do was find sufficient doubt in the medical assessor’s assessment to warrant referral again; if the court could make a positive finding, it could do so only as a basis for deciding that there should be referral again.

72 At best, then, the judge could have found that Mr Mill’s back injury was causally related to the motor vehicle accident as a basis for deciding that there should be referral again in respect of the back injury. That is what he did on 14 December 2007. He did not purport to go further. Whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10 per cent had to be, and was, left to the medical assessor.

73 His Honour went further on 1 May 2009. He regarded his finding as binding the parties in the assessment to be carried out by the medical assessor, giving it effect as a finding made by the court that whatever degree of permanent impairment would be assessed was caused by the motor accident.

74 In my opinion, in doing so his Honour went beyond the power conferred by s 62(1). That comes from the terms of s 62(1) and its place in the scheme as described in the preceding paragraphs. Section 62(1) spoke of referral again of “a matter referred for assessment under this Part”. The original matter referred had both the elements of causation and of degree of permanent impairment. The section should be understood in accordance with its terms, that is, referral of that matter again. In accordance with the scheme both elements were for the medical assessor, and the court could not decide them. The judge’s finding made for the purpose of deciding that there should be referral again under s 62(1) did not bind the parties in the assessment, and he could not make an order binding on the parties to prevent the medical assessor determining the issue of causation.

75 That a certificate was conclusive as to both the degree of permanent impairment and as to whether the degree of permanent impairment was as a result of an injury caused by the motor accident is emphasised by the fact that the legislature has left their assessment to a medical assessor under Pt 3.4, and has excluded the court from the determination of that threshold issue. But even if I am incorrect in what I have said about conclusiveness, my conclusion is the same. If a certificate was evidence, but not conclusive evidence, that the degree of permanent impairment was as a result of the injury caused by the motor accident, the court could find to the contrary of the certificate in that respect. But it could not make a finding as to causation binding on the parties in the assessment to be made by the medical assessor. That was still precluded by the terms of s 62(1) and its place in the scheme.

Mr Mills’ submissions

76 Mr Mills submitted on appeal, as he had below, that the result of the judge’s finding was that there was no disagreement between him and the Nominal Defendant that his back injury was caused by the motor accident; and that because Pt 3.4 applied only to a disagreement between them (s 58(1), chapeau) what remained for referral again was only the degree of permanent impairment.

77 In fact there was disagreement. The submission was dependent on the finding being binding on the parties in the assessment, so that it was not open to the Nominal Defendant to disagree. For the reasons earlier given, the finding was not binding. The submission cannot be accepted.

78 Mr Mills further submitted to the effect that the Act should be construed on the basis that it was inappropriate for a medical assessor to make findings on questions of causation, which could well involve non-medical issues including the credit of the injured person. He submitted to the effect that the medical assessor did not have meaningful investigative powers and the parties could not use compulsive curial procedures to put materials before the assessor, and that that was reason for the court’s ability to determine a question of causation upon which the assessor then assessed a degree of permanent impairment. Acknowledging that the court could refer again no matter what conclusiveness was given to a certificate, Mr Mills raised the spectre of a stalemate between court and medical assessor, the court taking one view of causation and the assessor another. He referred also to the possible anomaly of a conclusive assessment of less than 10 per cent permanent impairment because of no causation, excluding an award of damages for non-economic loss, but a court finding causation and awarding damages for economic loss.

79 The submissions face the difficulty that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) was unequivocally for the medical assessor, including the element of causation. That was accepted in Pham v Shui at [96], and it was correctly so held in Ackling v QBE Insurance (Australia) Ltd at [77]-[79]. The legislature accepted such constraints as there may have been on investigation or being provided with materials, and dealt with that amongst other possible deficiencies in a medical assessment by what I have called the safety valve of a court’s power to refer again. The legislature having chosen to provide the threshold in s 131 of the Act and brought it within the scheme for medical assessment under Pt 3.4, the possibility of anomoly was met by the safety valve.

80 A stalemate was unlikely; a court would take note of the medical assessor’s reasons, and in inquiring into any issue “in such manner as they think fit” (MAA Medical Guidelines, issued under s 44(1)(d) of the Act, para 11.1) a medical assessor could and would take note of the court’s reasons. It is not to be assumed that the power to refer again under s 62(1) would be exercised unnecessarily.

81 These submissions were essentially directed to how the Act should have operated, and were intended to support the primary submission as to disagreement. I do not think they can be accommodated within the terms of the Act.

Relief in the nature of certiorari

82 It was not disputed that the Authority could obtain relief in the nature of certiorari. High Court authority establishes that strangers can seek certiorari for jurisdictional error (Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at [162], [211]; re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [89], [260]), although the learned authors of Aronson et al, Judicial Review of Administrative Action, 4th ed, suggest at para 11.180 that the Court had “engaged in selective history to propose that certiorari … [was] available to those without any stake in the matter whatsoever”. In any event, the Authority had a stake in the matter. It had an interest in determining whether a medical assessor’s task under the Act could be confined in a court’s repeat referral.

83 Nor was it suggested that the fact that the Nominal Defendant could have appealed from the judge’s decision of 1 May 2009 (or, perhaps more correctly, could have applied for leave to appeal from that decision) should bring refusal of relief on discretionary grounds. In my opinion, relief should be granted.

84 The first decision made without power was the decision of 1 May 2009 so far as there was excluded the question whether or not as to the back injury the impairment or the injury giving rise to it was caused by the motor accident. The subsequent decision of 29 September 2009 was beyond power so far as the previous decision was left intact, although itself an exercise of the power under rule 36.16(3) of the Uniform Civil Procedure Rules.

85 Since on 14 December 2007 the judge had held that there should be referral for reassessment in respect of Mr Mills’ back injury and his psychological/brain injury, and that was not in contest in this Court, I consider that an available and sensible course is to quash the decision of 1 May 2009 so far as there was the exclusion and, perhaps unnecessarily, quash the decision of 29 September 2009 so far as the application to vary the orders of 1 May 2009 was dismissed.

Addendum

86 After the proceedings had been listed for delivery of judgment, Mr Mills applied by letter for leave to make a supplementary submission. The submission was reduced to writing. The other parties did not oppose leave, but the Authority asked that, if leave were granted, it have an opportunity to make submissions in reply.

87 The submission was that the reference in s 58(2) of the Act to “any issue arising about such a matter” extended a medical dispute to something less than the whole of the medical dispute, and thus that a judge had power to refer pursuant to s 62(1)(b) the issue of degree of permanent impairment to the exclusion of the issue of causation. That can not be accepted, consistently with the terms of s 62(1)(b) which requires a “matter” to be referred rather than an “issue”, and the judge’s inability to make a finding binding on the parties in the fresh assessment.

88 The lateness of the application is not wholly excused by the statement that Mr Mills had been “negotiating” with the other parties concerning making a supplementary submission. Nonetheless, leave should be granted. There is no occasion for submissions in reply. The submission does not alter the result.

Costs

89 No submissions were made as to costs. Mr Mills unsuccessfully resisted the Authority’s claim, and should pay its costs. The Nominal Defendant was properly joined, but could have submitted. Whether it seeks costs is not known and whether it should have them may be debateable. The Nominal Defendant should have liberty to apply, if so advised, for an order that another party pay its costs.

Orders

90 I propose the following orders -

1. Quash the decision made by Coorey DCJ on 1 May 2009 so far as his Honour’s order included the words “save that in respect of the back injury I refer only the question of the extent of the plaintiff’s whole impairment and not the question of whether or not that impairment (or the injury giving rise to it) was caused by the accident the subject of these proceedings”.

2. Quash the decision made by Coorey DCJ on 21 September 2009 ordering that the application to vary the orders of 1 May 2009 be dismissed.

3. Order the first respondent to pay the applicant’s costs, and that he have a certificate under the Suitor’s Fund Act.

4. Liberty to the second respondent to apply within 7 days for an order that another party pay its costs by lodging written submissions in support of that application in the submissions box on Level 11 and by serving the party or parties affected, such parties to lodge their submissions in answer in the submissions box within a further 7 days.

91 TOBIAS JA: I agree with Giles JA.

92 HANDLEY AJA: In this matter I have had the benefit of reading the reasons for judgment of Giles JA in draft. I agree with these reasons and with the orders he has proposed and will only add some supplementary reasons on the effect of the Motor Accidents Compensation Act 1999 as it stood before it was amended by Act No. 95 of 2007 with effect from 1 October 2008.

93 I agree with Giles JA (para [41]) that the Act in force prior to 1 October 2008 continued to apply to the process of referring a matter for medical assessment, although the Act as amended would apply to assessments made after that date.

94 It is therefore necessary to consider the effect of the medical assessment certificate that was in force when the Judge referred the matter for further assessment on 1 May 2009.

95 Section 61(2)(a) provided that any medical assessment certificate as to “whether the degree of permanent impairment of the injured person is greater than 10%” was “conclusive evidence as to the matters certified in any court proceedings”. This section did not in terms make such a certificate conclusive evidence of the causation of such impairment. However the words “conclusive evidence as to the matters certified” introduced an element of ambiguity where the certificate dealt with causation.

96 The section must be read with the other provisions dealing with matters referred for assessment, and the effect of certificates of the degree of permanent impairment. Section 58 defines the matters to be referred for assessment. It relevantly provided:

“(1) This Part [ie Pt 3.4] applies to a disagreement between a claimant and an insurer about any of the following matters:
…
(d) The degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, …
(2) This part also applies to any issue arising about such a matter in proceedings before a court …”

97 The disagreement referred to is not about the degree of the injured person’s impairment generally, but about the degree of that impairment “caused by the motor accident”. Section 57 defines “a medical dispute” as one “to which this Part [ie Pt 3.4] applies”. A dispute as to the degree of the permanent impairment caused by the motor accident is a medical dispute so defined. Section 60(1) provides that a medical dispute may be referred for assessment under this Part. Where that dispute relates to the degree of permanent impairment it necessarily involves the question of causation.

98 Thus when s 62(1) provides that the medical assessor “is … to give a certificate as to the matters referred for assessment under this Part” (ie Pt 3.4), that certificate must deal with the degree of permanent impairment caused by the motor accident. The degree of any other permanent impairment is not a matter referred for assessment, although it may have to be identified in order to be excluded from the assessment.

99 Thus, when understood in its immediate context, that part of s 61(2) which made “such [a] certificate” conclusive evidence as to the degree of permanent impairment made such a certificate conclusive on causation.

100 The matter becomes even clearer when ss 131-133 are considered. Section 131 precludes the award of damages for non-economic loss “unless the degree of permanent impairment … as a result of the injury caused by the motor accident is greater than 10%”. Section 132(1) provides that if there is a dispute as to whether the degree of permanent impairment is “sufficient” the Court may not award such damages “unless the degree of permanent impairment has been assessed by a medical assessor under Pt 3.4 …”.

101 Section 132(1) does not refer to the causation of the degree of the permanent impairment which is to be assessed under Pt 3.4, but this is implied. The only permanent impairment which is “sufficient” for the award of non-economic loss is that caused by the motor accident. This is put beyond doubt by s 133(1) which provides:

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

102 In my judgment therefore a certificate under Pt 3.4 of the Act of the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident was conclusive evidence of the degree of that permanent impairment and its causation by the motor accident.

103 Thus under the Act as then in force the Judge had power to refer the degree of permanent impairment of the plaintiff as a result of the injury caused by the motor accident for further assessment, but he did not have power to bind the medical assessor on the issue of causation. His direction to that effect was beyond power and should be quashed. I agree with the orders proposed by Giles JA.

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