Singh v Motor Accidents Authority of NSW (No 2)

[2010] NSWSC 1443

CITATION:

Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

25 June 2010

 
JUDGMENT DATE : 

16 December 2010

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

(1) The material relied upon by the Third Defendant to refer for medical assessment again, under s 62 of the Motor Accidents Compensation Act 1999, CARS matter 2008/04/3659 (“the matter”), was not grounds of or for “additional relevant information about the injury”;

(2) No valid referral for further medical assessment of the matter has occurred;

(3) An order in the nature of prohibition under which the First Defendant is prohibited from taking any further step in the matter as a consequence of the purported referral by the Third Defendant dated 29 October 2008;

(4) The Third Defendant shall pay the Plaintiff’s costs of and incidental to these proceedings, as agreed or assessed;

(5) Liberty is granted to the parties to approach within seven days for any further orders or for any different order, including any different or special order as to costs.

CATCHWORDS:	ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – referral for medical reassessment – construction of s 62 of Motor Accidents Compensation Act 1999 – jurisdictional fact – to whom material must be "additional" – further information of a different kind
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workplace Injury Management and Workers Compensation Act 1998
CATEGORY:	Principal judgment
CASES CITED:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 Mills v Selby [1971] VR 836 Mobitel (International) Pty Ltd v Dun & Bradstreet (Aust) Pty Ltd (1977) 17 SASR 140 Price v Pica [1977] VR 272 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Dunn [1973] 2 NZLR 481 Singler v Ferguson [2010] NSWCA 325 Sydney Ferries v Morton [2010] NSWCA 156 Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC 1086 Wills v Bowley [1983] 1 AC 57
PARTIES:	Savita Singh (Plaintiff) Motor Accidents Authority of NSW (First Defendant) The Proper Officer of the Motor Accidents Authority of NSW (Second Defendant) Allianz Australia Insurance Limited (Third Defendant)
FILE NUMBER(S):	SC 298048/2009
COUNSEL:	B K Nolan (Plaintiff) Submitting appearance (First Defendant) Submitting appearance (Second Defendant) K P Rewell SC (Third Defendant)
SOLICITORS:	McCabe Partners Lawyers (Plaintiff) Crown Solicitor's Office (First Defendant) Crown Solicitor's Office (Second Defendant) Curwoods Lawyers (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

16 DECEMBER 2010

2009/298048 Savita Singh v Motor Accidents Authority of NSW & Ors (No 2)

JUDGMENT

1 HIS HONOUR: The Court must deal with an application for prerogative relief seeking to restrain the Motor Accidents Authority from dealing with a purported reference for a further medical assessment. On 28 May 2010, the Court, as presently constituted, issued reasons for judgment (“the earlier judgment”) and orders (“the earlier orders”), the effect of which were relevantly that prohibition would issue to restrain the conduct of a further medical assessment on reference from a party, if the jurisdictional preconditions in s 62(1)(a) and s 62(1A) of the Motor Accidents Compensation Act 1999 (“the Act”) were not satisfied.

2 As a consequence of the foregoing, there was the subsequent agitation of the remaining issues in the proceedings, being whether there was “additional relevant information about the injury” (s 62(1)(a) of the Act), and whether, if so, such information was “capable of having a material effect on the outcome of the previous assessment”.

3 As recounted in the earlier judgment, the plaintiff claims, inter alia, psychological injury (major depression with psychotic features) arising from a motor vehicle injury that occurred on 7 January 2002. The third defendant (Allianz Australia Insurance Limited) (hereinafter “Allianz”) disputes that injury and/or that the Whole Person Impairment (“WPI”) arising from all injuries is greater than 10%.

4 It is necessary to reiterate some of the procedural history recounted in the earlier judgment. The plaintiff was initially subject to medical assessment on 20 February 2008. Dr McClure was the medical assessor. Dr McClure determined that the plaintiff suffered no psychiatric injury caused by the motor vehicle accident, and assessed the WPI at 0% for psychological injuries.

5 The plaintiff sought, and was granted, a review of Dr McClure’s assessment under s 63 of the Act. The Review Panel conducted a Review on 4 July 2008. The Review was conducted on the papers, i.e. submissions of the parties and the material that had been before Dr McClure for the original assessment together with any additional material, lodged by either party. Both the plaintiff and Allianz had the opportunity to adduce further material and tender further documents or reports for consideration in the Review. Each party filed the material upon which she or it intended to rely.

6 The Review Panel found that Ms Singh was suffering psychological injury; that there was a causal link between the psychological injury and the accident; and determined that the WPI was 44%. As a consequence of the foregoing determination, the Review Panel issued certificates under s 63(4) of the Act. The Reasons for the determination were published on 9 July 2008.

7 It is appropriate for completeness to reiterate s 62 of the Act, which is in the following terms:

“ 62 Referral of matter for further medical assessment
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:
(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
(b) by a court or claims assessor.
(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.
(1B) Referral of a matter under this section is to be by referral to the member of staff designated by the Authority for the purpose (in this Part referred to as the ‘proper officer of the Authority’).
(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.”

The material at initial assessment

8 Dr McClure’s initial assessment accepted that Ms Singh suffered a psychological condition. The Statement of Reasons of 20 February 2008, in part, states:

“ Psychologically , despite continuing treatment, Ms Singh also remains symptomatic. She is depressed and thinks of death regularly. ‘Voices’ still occur. Particularly when she leaves the house, she feels that she is being ‘followed’ by individuals who comment on her actions. She hears their ‘voices’ and their comments are usually derogatory. They include the voice of her husband ‘Prem’. Comments are made such as ‘she’s no good … mentally sick’.

…

Current and Proposed Treatment
Current medications are:

• ‘Digesic’ tablets (for back pain/headache) ? [sic] two at night;
• Paracetamol tablets up to 2 x 500mg, three times a day;
• Fluoxetine 20mg, one daily (antidepressant); and
• Risperidone 1mg at night (antipsychotic).

… She is not … attending a psychiatrist or psychologist.”

9 The Reasons also described Ms Singh during her interview as “perplexed and pre-occupied”; “variably distressed”; with poor attention span; appearing frightened; with eye movements “as if she were attending to auditory hallucinations”; with depressed mood and “little fluctuation of affect”. Dr McClure concluded that “Ms Singh currently has a significant psychiatric disorder”. Dr McClure’s Reasons also recite:

“ Concentration, Persistence and Pace is moderately to severely affected. Ms Singh does not read. She presents at interview as anxious, distracted, preoccupied and having a short attention span.”

10 And in dealing with prior medical opinions Dr McClure recounted, in part:

“Psychiatrist Dr Lana Kossoff (MAS Assessor) assessed Ms Singh on 3 July 2006. … According to Dr Kossoff ‘some of the current impairment is related to the breakdown of her marriage, which is unlikely to have been completely contributed to by the motor vehicle accident and subsequent physical injuries alone [my emphasis].’ Her condition was not felt to have stabilised.

… Dr Crane found ‘significant overreaction’.

…

Consultant Psychiatrist Dr Bruce Westmore interviewed Ms Singh … on behalf of the Claimant’s solicitors… [and] ‘her affect was agitated, anxious and at times very tearful. Her mood state was persistently and pervasively depressed. Her thought content demonstrated paranoid themes.’ He diagnosed a Major Depression with Psychotic Features. He attributed this largely to the breakdown of Ms Singh’s marriage. However, it may be that ‘she was significantly distracted before her husband left.’ She had not received definitive psychiatric treatment and obviously needed such.”

11 Finally, Dr McClure concluded that “the history of physical symptoms and the significance (or otherwise) of the subject accident does appear to have changed over time. From a psychiatric perspective, however, it seems fairly clear that Ms Singh has had a significant Major Depression with Psychotic Features since about late 2005/early 2006. Prior to that it seems that her symptoms could best be described as a ‘reactive’ type of depression.”

12 Lastly, in relation to Dr McClure’s Reasons, the following, which was one of the bases of appeal, was said:

“This Claimant has a Major Depressive Episode with psychotic features which has not been adequately treated. The relevant research literature suggests that depressive episodes with these kinds of stereotypic vegetative/biological features are largely genetic in aetiology. Ms Singh, in short, has a constitutional disorder, albeit this may initially have been triggered by the breakdown of her marriage. The marital breakdown, in turn, occurred almost four years after the subject accident and cannot be directly linked to it, in my view. This is also suggested by the Claimant’s own self-described improvement in her psychological condition during latter 2004, as expressed in her earlier Statutory Declaration dated ‘22 December 2004.’ The initial precipitant of Ms Singh’s psychotic depression occurred at least two years ago. It is likely that this depressive episode is now following an autonomous constitutionally-determined course. It is biological in nature.”

13 The reference to the assessment of Dr Kossoff is to the Reasons of Dr Kossoff of 3 July 2006. In that assessment, Dr Kossoff determined psychological injury was caused by the motor accident. Dr Kossoff said:

“Following the motor vehicle accident and before her husband left her, Ms Singh developed a clinically significant depressed mood, passive suicidal ideation, loss of interest in activities and preoccupation with her pain. This was likely due to the onset of a Major Depression which continues to be the current diagnosis. After her husband left, which Ms Singh said devastated her, the Major Depression considerably deteriorated and she is now suffering from a severe Major Depression with melancholia and mood-congruent psychotic features. She has previously made a suicide attempt and requires assertive treatment for the condition. I have sought consent from the Motor Accident Authority to send a letter to Dr Hoogerbrug, Ms Singh’s general practitioner, recommending that urgent treatment be commenced when she returns to New Zealand in two days’ time.”

Because the psychological condition had not stabilised, Dr Kossoff did not (and, in her opinion, could not) assess the Degree of Permanent Impairment and/or WPI.

14 As is clear from the foregoing, there was a significant amount of psychiatric opinion and assessment before Dr McClure, on the basis of which he assessed Ms Singh.

The Review

15 Allianz lodged a reply, dated 16 May 2008, to the application for Review and further material, not before Dr McClure, namely, a report of Dr Hoogerbrug of 3 March 2005. Further reliance was placed by Allianz on material that was before Dr McClure. Dr McClure had, before him, reports of Dr Hoogerbrug, later in time than the further report lodged by Allianz at the Review. Dr Hoogerbrug was Ms Singh’s general practitioner.

16 The Review Panel comprised Dr Anthony Samuels (Chair), Dr Robert Lewin and Professor Lorraine Dennerstein, each of whom, like Dr McClure, is a psychiatrist. The Review Panel revoked the assessment of Dr McClure and issued a new certificate of assessment under s 63(4) of the Act, namely, to the effect that the WPI was greater than 10%, being the effect of an injury caused by the motor vehicle accident. The certified injury was “Major Depression with Psychotic Features”.

17 The Review Panel issued a Statement of Reasons dated 9 July 2008. The Reasons of the Review Panel detail the disputes identified by the parties as:

“The panel considered the matters cited in the Application for Review and noted that the following aspects of the assessment were disputed:
• The degree of whole person impairment
• Whether the injuries are stabilised

The panel considered the matters cited in the Reply to the Application for Review and noted that:
• The respondent agreed with the application but felt the only issue of significance was that of causation.”

18 In describing its deliberations, the Review Panel said:

“ C. Panel Deliberations


Injuries:
There was a consensus amongst the panellists that the claimant was indeed suffering from a depressive illness with psychotic features and that the accident was a significant contributing factor to the development of this condition. Of particular utility was the report of the general practitioner, Dr Hoogerbrug, dated 11/5/2006 which indicated that he had known the above patient for more than 15 years and that prior to the accident she had suffered no psychological or psychiatric problems and that following the accident she had developed a chronic anxiety state and Iowgrade depression as well as a chronic pain problem.

The panel felt that the above’s injuries had stabilised because she had been treated for a significant period with appropriate therapy and that there was a consistency in all the reports reviewed in regard to the symptoms she was experiencing. Given the appropriateness of the treatment to date it certainly was not foreseeable that any further pharmacotherapeutic or psychological interventions would significantly impact upon her condition. The degree of permanent impairment arising from the injury was determined from the contemporaneous psychiatric reports provided with the panel taking into account all the information provided and considering this material within the terms of reference provided by the terms of the Psychiatric Impairment Rating Scale.

It is clear from the general practitioner’s report that there was no pre-existing impairment to be deducted.

It was the view of the panel that the above did become depressed and anxious and developed chronic pain symptoms in the aftermath of the accident of January 2002. The panel felt that it was likely that her psychiatric and psychological symptoms contributed to the break up of her marriage and that following this event her psychiatric and psychological symptoms materially worsened. It was therefore the view of the panel that there was a causal link and that this link was more than negligible to the development of her current psychiatric and psychological injury.”

19 It was on the foregoing basis that the Review Panel determined, as it did, that there was 44% WPI, revoked the original certificate and issued a further certificate reflecting its findings that the WPI was greater than 10%.

The purported referral for further assessment

20 The “Application for Further Assessment of a Permanent Impairment Dispute by the Medical Assessment Service”, lodged by Allianz, is undated, but attaches the insurer’s submissions, dated 29 October 2008 and three reports of Dr Selwyn Smith dated 30 September 2008, the Review Panel Assessment Certificate of 4 July 2008 and a DVD of surveillance of Ms Singh and a report relating to same dated 28 February 2008.

21 The basis of the Further Assessment Referral was said to be “new and additional information about the Claimant’s psychological state that is capable of having a material effect on the outcome of the existing MAS … certificate”. The “new and additional information” is the investigation report of 28 February 2008 with annexures and the three reports of Dr Selwyn Smith of 30 September 2008. In order to satisfy the statutory preconditions, it is unnecessary for the information to be “new” and I hereinafter ignore the extra burden seemingly undertaken by Allianz.

22 The Further Assessment referral did not seek to rely on any “deterioration of the injury” (see s 62(1)(a) of the Act) and the grounds were:

“(a) The Claimant is feigning and/or embellishing her symptoms and does not suffer from any psychological disorder or illness.

(b) The Claimant has no whole person impairment arising from psychological injury.

(c) If the Claimant does suffer from any psychological injury it is not causally related to the motor vehicle accident on 7 January 2002 as the claimant’s marriage breakdown is a significant intervening event causing the claimant’s symptoms.

(d) In the alternative, if it is found that there is a causal connection between the claimant’s symptoms and the subject accident, which is denied, then such symptoms do not give rise to a greater than 10% whole person impairment.”

23 The submissions of Allianz supporting the Further Assessment Referral (hereinafter “the Submission”) refer to the members of the Review Panel not re-examining Ms Singh and relying on the reports of the psychiatrists (and Dr McClure) that were before them. Further, the Submission, relevantly for present purposes, states:

“8. The surveillance film provides additional relevant information capable of altering the Review Panel’s findings on the existence of a psychological illness and the resulting level of whole person impairment of the claimant. It is important to note that the surveillance film is the only available information on the claimant’s true behaviour and presentation when not under clinical examination, which, if one is to accept the concerns of Dr Selwyn Smith, is imperative in the assessment of this claim.

9. Dr Selwyn Smith is the only expert to have viewed the surveillance film. The surveillance was conducted when the claimant was in Australia to be assessed at the request of MAS by Dr McClure on 20 February 2008.

10. Further, it is noted that Dr McClure, Dr Kossoff and Dr Westmore were all provided with different histories and had different opinions as to the onset of the claimant’s psychological symptoms and their ability and their connection with the motor vehicle accident, if any. Thus, further assessment is necessary to clarify the true extent of any symptoms and their relationship to the subject accident.

11. The most recent examination of Dr Selwyn Smith found the claimant presented in a bizarre and dramatic fashion, failing to display overt anxiety, agitation, hyperactivity or combativeness. Overall, Dr Selwyn Smith found the plaintiff presented in a manner that was consistent with a person attempting to feign psychiatric illness. In arriving at this opinion Dr Selwyn Smith noted the claimant distorted significant issues pertaining to her background, particularly in relation to her education and relationship with her children. In conclusion Dr Selwyn Smith opined that should the claimant be found to have developed a major depressive episode with melancholia or psychosis, that this condition is not the result of the subject accident which was relatively minor.”

24 As recited above, the surveillance was undertaken partly on the day that Ms Singh was examined by Dr McClure. Ironically, one of Ms Singh’s complaints was that she thought she was being followed; and she was being followed, but not necessarily at the time she felt it.

25 The surveillance DVD (Exhibit B in this Court) is unexceptional. It records Ms Singh walking from Macquarie Street (a medical appointment) through the city to Coles and a delicatessen before returning to her hotel accommodation, and then briefly to a travel agent. The next day the DVD records Ms Singh walked from her hotel to another medical appointment after which she met another woman, proceeded to the QVB, where she sat and consumed a cup of coffee. After that she walked to her next medical appointment and then to a bank.

26 On the third day of surveillance, Ms Singh, in the company of another woman, travelled by train and bus to a home in Green Valley. Notwithstanding continued surveillance at Green Valley, Ms Singh apparently did not venture outside the house that day or the next.

27 On the fifth day, Ms Singh was driven from Green Valley, in the morning, directly to the airport to return home. She attended an airport duty free shop and also bought a doughnut. The surveillance report described her activities as “walking, sitting, carrying handbag over her right and left shoulder, wheeling her luggage, lifting her luggage onto the train, and turning her head and neck”.

28 The three reports of Dr Selwyn Smith consist of a report arising from an examination on 25 September 2008, a report reviewing the surveillance DVD and accompanying report and a single page, the substantive and operative paragraph of which states:

“In the absence of a formal psychiatric disorder there is no requirement under the Motor Accident Authority guidelines to undertake a whole person impairment assessment. It is also my opinion that any such assessment that would be undertaken even in the presence of a psychiatric disorder would be significantly distorted by the inaccuracy of the information provided in order to ascertain the extent of her impairments.”

29 The other reports opine that Ms Singh suffers no psychiatric disorder and no psychiatric disorder occasioned by the motor vehicle accident. The report on examination states, in part:

“From the history that I have obtained, documentation reviewed and my own clinical examination it is my opinion that Ms Singh has not developed a formal psychiatric disorder arising from the motor vehicle accident in question. There was significant inconsistency in the history provided to me when compared with the documentation reviewed. Ms Singh also displayed a most unusual psychiatric presentation. Her presentation was in my opinion an attempt to feign psychiatric illness. She displayed symptoms noted in individuals that demonstrate Ganser like symptoms. The history that she provided to me was also inconsistent with that provided to other examiners. She distorted significant issues pertaining to her background in regard to her education and relationship with her children. She reported overt disorientation, amnesia and loss of personal information. Her presentation was an attempt to display significant psychosis with impairment of reality testing. She emphasised auditory hallucinations. Her clinical presentation was not consistent with an overt psychotic condition. It is also questionable whether she was utilising the medications prescribed.”

30 The review of the DVD and surveillance report in large part comments on the Review Panel Assessment by comparison with what is said to be evident from the DVD. However, in most circumstances, Dr Selwyn Smith only comes to the “conclusion” that the assessment, or the basis of the assessment, needs to be more closely examined or needs closer questioning, and concludes that the “panel may have achieved a more reliable evaluation had they had the chance to examine Ms Singh rather than rely on the documentation.”

31 Of course, like Dr Selwyn Smith, the members of the Review Panel could have examined and reviewed the DVD and surveillance report if Allianz were to have made it available to them. Dr Selwyn Smith opines that Ms Singh is feigning her symptoms and was feigning them at the time of her prior assessment.

The construction of the Act

32 The Act has been the subject of much authority. It seems it will continue to be the source of much litigation. The foregoing is not a complaint. The Act was promulgated for the purpose of resolving disputes as to compensation for personal injury and death as a consequence of motor accidents. Its objects (s 5 of the Act) include encouraging early and appropriate treatment for injuries and encouraging early resolution of compensation claims. The Act acknowledges that the legislative intention is to restrict the level of non-economic loss compensation “in cases of minor injuries” (s 5(2)(b) of the Act) and it achieves that purpose by limiting non-economic loss compensation to those persons who suffer a WPI of greater than 10%. Another object of the Act is to deter fraud (s 5(1)(g) of the Act).

33 In fulfilment of the foregoing, the Act creates a scheme that leaves to specialist (and expert) assessors the determination of the legislative precondition to the capacity of an injured person to obtain compensation for non-economic loss. In so doing, the assessors are resolving a dispute as to the rights under a statute of an individual as against another individual and/or her or his insurer.

34 While this is required to be performed in a less formal manner than a court would undertake the process, it is nevertheless the resolution of a justiciable controversy, or part of it. It is not an executive fiat, exercisable on a discretionary basis, but the determination of a right under statute on objective criteria.

35 The Court, in the earlier judgment, has dealt at least in part with the construction of s 62 of the Act. But that was approached from the standpoint of determining the status of a decision of the Proper Officer and whether there were jurisdictional “facts” that preconditioned the referral for reassessment.

36 Plainly a purpose of the Act is to encourage an expeditious, inexpensive means of conducting a medical assessment. It is also to effect a speedy finalisation of any dispute between the parties. The final resolution of controversies between parties is an essential aspect of the exercise of judicial power and of a jurisdiction of this kind, even if it not be judicial power: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 223 [15]; Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [114].

37 The Court ought to draw attention to two other aspects of the provisions of the Act. First, s 62(1)(a) allows reassessment for a deterioration of the injury, but not for partial or total recovery from the injury or for amelioration of the symptoms, unless it can be said that it occasions additional information about the injury. There must be an expectation that, with proper treatment, in some cases patients will improve. Certainly that is so with some psychiatric injury. Yet the Act seems to make no express allowance for it, except as otherwise noted. This may be due to the need for finalisation and the fact that the possibility of recovery will be a factor in the calculation of damages.

38 Second, the Act expressly deals with misleading and false claims or conduct and provides for such conduct to be a criminal offence (s 117 of the Act) and, if the purpose of the conduct were to obtain a financial benefit, for an insurer to be relieved of any liability occasioned by such conduct (s 118 of the Act) to the extent of the financial benefit thereby obtained.

39 The Court has decided in the earlier judgment that the existence of statutory preconditions to a Referral for Re-Assessment is an issue of jurisdictional fact. There must relevantly be a referral on the grounds of additional relevant information (s 62(1)(a) of the Act), which additional information is capable of having a material effect on the outcome (s 62(1A) of the Act).

40 In the earlier judgment, the Court took the view that the jurisdictional fact was, relevantly, the objective existence of the deterioration or the additional information and whether that was capable of having a material effect on the outcome.

41 Alternatively, it is the grounds that must objectively exist and the grounds that, if accepted, are capable of having a material effect on the outcome. This latter formulation does not include the mere subjective reliance on a ground, but would require the existence of objectively ascertainable grounds for taking the view that there had been a deterioration or that there existed additional relevant information.

42 The formulation in [41] above is not the same as the formulation discussed in [50] and [51] of the earlier judgment, because the latter formulation is not “subjective”, i.e. it is not satisfied merely by reliance on a deterioration, but requires objective material giving rise to such a ground. It is generally only when the Court deals with the whole of the issue that the full effect of the determination can be appreciated. The jurisdictional precondition imposed by s 62(1)(a) of the Act is not the objective existence of the “deterioration” or the objective existence of “additional relevant information”, but the objective existence of the grounds therefor.

43 To that extent the comments in [50], [51], [52], [53] and [54] of the earlier judgment must be qualified. The objective existence of a ground of one of the relevant kinds, capable of having a material effect on the outcome, comprises the “jurisdictional fact”. As such, the Court, in proceedings for prerogative relief, does not, for example, need to determine objectively that the injury has deteriorated. Such a determination is still ultimately within the jurisdiction of the Medical Assessment Service.

44 It is then necessary to examine the meaning of “additional relevant information”. In construing this phrase, it is appropriate to do so in a manner that best gives effect to the purpose and language of the provisions in the Act and the statute as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70]. It is, in part, for that reason, that the foregoing refinement of the nature of the jurisdictional fact is necessary.

45 Plainly, as already stated, the legislature intends an informal resolution of medical disputes, which is as expeditious and inexpensive as possible, and for that resolution to be performed by the specialist (and expert) panels. There is an appeal process to experts. Such a purpose would be defeated, if the objective existence of deterioration (for example) were required to be decided by this Court. More importantly, for present purposes, such a purpose would be defeated if “additional relevant information” included every different medical opinion commissioned by a party: see Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [43] per Davies J. I respectfully agree with his Honour. There would never be an end to the controversy.

46 In this case, there are two relevant aspects to the medical opinion: first, whether Ms Singh suffered a psychiatric injury; second, the cause of that injury. By the time that the Review Panel issued its certificate, there had been six psychiatrists (Drs Kossof, Westmore, McClure, Samuels, Lewin and Professor Dennerstein) each of which assessed whether there was a psychiatric injury and amongst which there was a difference as to whether the injury was caused by the relevant motor vehicle accident.

47 It cannot be said that either issue addressed by Dr Selwyn Smith was not before the Review Panel. However, Dr Selwyn Smith’s opinion was based on the DVD and surveillance report. An opinion on an issue already canvassed is not, of itself, additional relevant information. If it were otherwise, and there was a resulting re-assessment, Ms Singh could obtain a further report and insist on another assessment. In some instances, a further medical report may be additional relevant information, e.g. for a back injury, an opinion based on an MRI not previously available: see, by way of example, the facts in Singler v Ferguson [2010] NSWCA 325. But in such circumstances, it is the MRI that is the additional relevant information. The opinion of Dr Selwyn Smith is not information additional to that upon which the extant certificate was based.

48 One must then examine whether the surveillance is additional relevant information. The DVD and associated report is material that none of the six psychiatrists had seen, including the Review Panel and the original Assessor (Dr McClure).

49 The Court is not an expert panel and, on application for prerogative writ, will not determine, as a binding question of fact, whether an injury exists: Sydney Ferries v Morton [2010] NSWCA 156 at [3], [54] and [86]. Nor will it determine whether the DVD discloses conduct inconsistent with the extant assessment of the injury. It will determine whether the additional material objectively raises such a ground.

50 Accepting, without deciding, that the activities of Ms Singh on the DVD raises a ground of inconsistency with the extant assessment, a fundamental question arises as to whether the DVD and report is “additional” information. The Act does not specify to whom the information must be “additional”. Obviously, it must not have been considered in the extant assessment. But is that sufficient?

51 If the assessor (or Review Panel) has material, then each of the parties would also have that material. If one of the parties has material that is not lodged, or relied upon, then, in ordinary circumstances, the other party and the MAS will not have that material. That is the circumstance here. Allianz had commissioned the surveillance; it occurred between 19 and 23 February 2008 (inclusive); and was received by Allianz on or shortly after 28 February 2008. Dr McClure’s assessment occurred on 20 February 2008 and the Review Panel assessment on 4 July 2008. As already stated, Allianz filed its material for that Review on 16 May 2008. Allianz chose not to use the DVD or surveillance report. Thus the DVD and report would be arguably “additional” to Ms Singh and the Medical Assessment Service.

52 In other words, does a party to a medical dispute under the Act have the ability to keep to itself information, not rely upon it, and later decide to use it as a ground for a further assessment? Such a capacity would clearly be inconsistent with the most expeditious determination of all the issues. It would also be inconsistent with the finalisation of matters: see Burrell, supra, and Trazivuk, supra. But if the wording of the provision permitted it, then such goals must give way.

53 Ultimately, the issue depends on the determination of the issue: to whom must the material be additional? It seems that the preferable construction, consistent with the purposes of the Act, is that the information must be additional to the party relying on it as a ground for further assessment, being the party referring the matter for further assessment under s 62(1)(a) of the Act. In that way, the cooperative approach required of the parties by the Act is facilitated and the purposes of the Act achieved. Any other construction, as already stated, would be inconsistent with those purposes and with that approach.

54 During the course of submissions, the Court raised with the parties the judgment of Malpass AsJ in Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC 1086. His Honour discusses this issue at [43]-[45], but it does not form part of his reasoning. Further, his Honour was concerned with whether “additional” information included material that could have reasonably been obtained. Such an issue does not arise in these proceedings.

55 Nevertheless, the approach is informative. His Honour compared the wording of s 62 of the Act with s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (“WIMWC Act”) which relevantly, in relation to an appeal, allows for grounds to include “deterioration of the … condition” (s 327(3)(a) of the WIMWC Act) and the “availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment … or that could not reasonably have been obtained by the appellant before that medical assessment)”: s 327(3)(b) of the WIMWC Act.

56 It is not absolutely clear how his Honour used the terms of the WIMWC Act; whether he took the view that the words in the two statutes, being in pari materia, should have the same meaning and effect, or, whether the legislature, having chosen in the WIMWC Act to prescribe its intention as to the meaning of “additional”, therefore intended a different meaning in the Act here being considered.

57 In my view the purpose of the parenthetical words in the WIMWC Act is to clarify the application of the rule that material that could have been obtained by reasonable conduct will not be “additional”.

58 The practice, if it be the practice, of using a definition in one statute as an indication of the meaning of words in another can be fraught with difficulty. Words must be given their ordinary meaning in the context in which they are used, consistent with the purpose of the statute and a single expression may well be used differently in different statutes: see Wills v Bowley [1983] 1 AC 57 at 91; Mills v Selby [1971] VR 836 at 841-842; Price v Pica [1977] VR 272 at 276; R v Dunn [1973] 2 NZLR 481 at 483; but see Mobitel (International) Pty Ltd v Dun & Bradstreet (Aust) Pty Ltd (1977) 17 SASR 140 at 147.

59 If, without deciding, these two statutes are in pari materia, then “additional” may be given the same meaning in the Act as it has been in the WIMWC Act. If not, the “definition” in the WIMWC Act is irrelevant (or, at least, less relevant) and the ordinary meaning must apply. For present purposes, there is no inconsistency between the effect of each approach, and it is unnecessary to discuss the situation of material that was not in the possession of the party, but could have been on reasonable efforts.

60 The DVD and report were plainly available to Allianz at the time of the Review and extant assessment, and therefore, the DVD and report cannot be a “ground … of additional relevant information” available to Allianz. The information is not additional to Allianz.

61 Lastly, I should deal briefly with the “grounds” for the Reassessment recited at [21] supra. Paragraphs (b), (c) and (d) were plainly before Dr McClure and the Review Panel. Paragraph (a), to the extent that it alleges that Ms Singh does not suffer psychological injury, is no more than a general statement of which (b) is a particular. The allegation of “feigning and/or embellishing” does not raise additional information.

62 Further, if Ms Singh were feigning or embellishing, then Allianz is not without remedy. Such matters are covered by s 117 and s 118 of the Act.

63 Moreover, the combined effect of the DVD, surveillance report and the opinions of Dr Selwyn Smith is to provide material of the same kind as had already been considered. A further medical opinion is only additional information if it is of a different kind (i.e. deals with different issues) than opinions already expressed and considered: Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [38]; (2009) 54 MVR 102. That this material is of the same kind is best illustrated by comparing the DVD and opinion of Dr Selwyn Smith, on the one hand, with the Reasons of the Review Panel on the other. Those reasons were recited in the form of a table in the Plaintiff’s Written Submissions in this Court.

Category	Class	Reason for Decision
Self-care and personal hygiene	3	Dr McClure noted that she took her medication irregularly, that she required the supervision of an adult and that she had constant suicidal ideas. Dr Westmore found that she spent the day in bed and did not shower. Although Dr Kossoff stated the claimant was independent, she also noted the presence of formal thought disorder, distractibility and auditory hallucinations and that was the view of the Panel that these symptoms would significantly undermine her ability to care for herself.
Social and recreational Activities	3	Dr McClure noted that she rarely went out, never went out unaccompanied and had almost no home based leisure activities. Dr Westmore found her to be paranoid and uncomfortable in social situations.
Travel	2	Dr McClure noted the above would drive locally and manage to fly to Australia with a friend for an assessment Dr Westmore noted that she did not travel alone and rated her as a 3, but it was the panel’s view, given the fact that she could drive and fly to Australia, that a 2 was a more realistic rating.
Social functioning	4	Dissolution of her marriage.
Concentration, persistence and pace	4	On mental state, Dr McClure noted that she was perplexed and preoccupied and distracted and tending to auditory hallucinations. He felt she had short attention span. Dr Westmore noted that the questions had to be frequently repeated and she did not watch television or like reading newspapers because she felt these media made personal references to her.
Adaption	5	Unemployable because of the severity of her psychiatric illness.

64 The emphasis in the foregoing table is that of Ms Singh, but the emphasised portions clarify that the activities evidenced in the DVD were within the range of activities contemplated by the Review Panel as within Ms Singh’s capabilities, and routine.

65 While it is, given the other findings, now unnecessary to deal with the precondition in s 62(1A) of the Act (i.e. whether the ground is capable of having a material effect), the foregoing table and comparison would lead the Court to conclude that this jurisdictional precondition was, in this case, also not satisfied.

Conclusion

66 For the foregoing reasons, and the reasons in the earlier judgment,

(i) certiorari will not issue against the Proper Officer;

(ii) the objective existence of the grounds stated in s 62(1)(a) is a jurisdictional precondition to the referral for further medical assessment;

(iii) the material upon which Allianz relies does not objectively give rise to a ground of additional relevant information about the injury, in that



(a) the further medical opinions are, or deal with, matters already considered in the extant medical assessment; and

(b) the DVD and surveillance report are not “additional”;


(iv) consequently, no valid referral has occurred and there is no jurisdiction or power to conduct a further medical examination; and

(v) appropriate orders will issue.

67 The Court makes the following declarations and orders:

(1) The material relied upon by the Third Defendant to refer for medical assessment again, under s 62 of the Motor Accidents Compensation Act 1999, CARS matter 2008/04/3659 (“the matter”), was not grounds of or for “additional relevant information about the injury”;

(2) No valid referral for further medical assessment of the matter has occurred;

(3) An order in the nature of prohibition under which the First Defendant is prohibited from taking any further step in the matter as a consequence of the purported referral by the Third Defendant dated 29 October 2008;

(4) The Third Defendant shall pay the Plaintiff’s costs of and incidental to these proceedings, as agreed or assessed;

(5) Liberty is granted to the parties to approach within seven days for any further orders or for any different order, including any different or special order as to costs.

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16/03/2011 - Typographical error - Paragraph(s) [21], [61]