Spratt v Perilya Broken Hill Ltd; Spratt v Rowe

[2016] NSWCA 192

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192

Hearing dates:

27 July 2016

Decision date:

04 August 2016

Before:

McColl JA at [1];
Gleeson JA at [2];
Leeming JA at [3]

Decision:

In 2016/17278:

 

1. Amend the parties so that the first defendant is Perilya Broken Hill Ltd.

 

2. Dismiss the summons filed 18 January 2016 with costs.

 

In 2016/101717:

 1. Dismiss the summons seeking leave to appeal with costs.

Catchwords:

TORTS – employee injured in motor vehicle accident at work – employee claimed under workers compensation and motor accident legislation – Workers Compensation Commission determined injury to cervical spine caused by accident – Medical Assessor subsequently determined that injury to cervical spine not caused by accident – plaintiff claimed issue estoppel bound the Medical Assessor – whether issue estoppel could exist given motor accident claim was against fellow employee for which employer was vicariously liable – whether motor accidents legislation excluded operation of issue estoppel in relation to causation – whether issue estoppel was a “common law principle” to which the Medical Assessor was subject by reason of the Permanent Impairment Guidelines

  PRACTICE – requirement to prepare paginated affidavits and appeal books – requirement to formulate grounds of judicial review with precision – requirement to file signed submissions

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
Constitution, s 77(iii)
Motor Accidents Compensation Act 1999 (NSW), ss 44, 58, 62, 63, 65, 109, 131
Suitors’ Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 51.12, 51.36, 59.3
Workers Compensation Act 1987 (NSW), ss 66, 67
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 294, 350

Cases Cited:

Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
CSR Timber Products Pty Ltd v Weathertex Pty Ltd [2013] NSWCA 49; 83 NSWLR 433
Egri v DRG Australia Ltd (1990) 19 NSWLR 600
Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719
Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363
Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101
Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647
McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609
Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125
Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78
Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594
Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514
Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285
Somodaj v Australian Iron and Steel Ltd [1961] SR NSW 305
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Warth v Lafsky [2014] NSWCA 94; 66 MVR 445

Category:

Principal judgment

Parties:

2016/17278:
Mr Nathan Spratt (Applicant)
Perilya Broken Hill Ltd (First Defendant)
His Honour Judge M I Bozic SC in his capacity as Judge of the District Court of New South Wales (Second Defendant)
Motor Accidents Authority of New South Wales (Third Defendant)
Ms Sarah Kallipolitis in her capacity as Proper Officer, Medical Assessment Service of the Motor Accidents Authority of New South Wales (Fourth Defendant)
Mr Tony Rowe (Fifth Defendant)
District Court of New South Wales (Sixth Defendant)

  2016/101717:
Mr Nathan Spratt (Applicant)
Mr Tony Rowe (First Respondent)
Perilya Broken Hill Ltd (Second Respondent)

Representation:

Counsel:
R Goodridge (Mr Nathan Spratt)
D Stanton (Mr Tony Rowe & Perilya Broken Hill Ltd)
Submitting appearance (His Honour Judge M I Bozic SC)
Submitting appearance (Motor Accidents Authority of New South Wales)
Submitting appearance (Ms Sarah Kallipolitis)
Submitting appearance (District Court of New South Wales)

  Solicitors:
Firths The Compensation Lawyers (Mr Nathan Spratt)
Hall & Wilcox Lawyers (Mr Tony Rowe & Perilya Broken Hill Ltd)
Crown Solicitor’s Office (Second, Third, Fourth and Sixth Defendants)

File Number(s):

2016/17278; 2016/101717

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

State Insurance Regulatory Authority; District Court of New South Wales

Jurisdiction:

Medical Assessment Service;Civil

Date of Decision:

22 October 2015; 4 December 2015

Before:

Ms Sarah Kallipolitis (Proper Officer); Bozic DCJ

File Number(s):

2015/02/0681; 2014/262146

Judgment

1. McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. GLEESON JA: I agree with Leeming JA.

3. LEEMING JA: Stripped of their factual and procedural complexity, these two proceedings reduce to a dispute whose essence may be stated concisely. Mr Nathan Spratt was injured at work by a motor vehicle driven by a fellow employee on 11 October 2011. He has made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW), one aspect of which has been determined, favourably to him, by the Workers Compensation Commission: it determined that Mr Spratt injured his cervical spine in the course of his employment on 11 October. Mr Spratt also made a claim under the Motor Accidents Compensation Act 1999 (NSW), and a Medical Assessor determined that “[t]here was no likelihood of the cervical spine injury in the accident as described”. Mr Spratt has applied to the Proper Officer for review of that assessment, but his application has been refused. He has also applied to the District Court for a further assessment, but that application has been refused. In this Court, he challenges both decisions refusing those applications, on the basis that the determination by the Workers Compensation Commission resulted in an issue estoppel which bound the Assessor.

4. There are two reasons why I have concluded that Mr Spratt’s challenges must fail. The first is a matter which only became clear following questions from the Court and the belated production of Mr Spratt’s District Court pleading. There was no issue estoppel. Mr Spratt’s motor accident claim is against the driver of the vehicle. His District Court action joins both the driver and employer, but the liability of the latter is purely vicarious. When this was raised by the Court, Mr Spratt conceded, properly, that the driver could not be regarded as a privy of his employer. As such, he could not be bound by any issue estoppel.

5. The second reason is that even if an issue estoppel arose as to causation, it does not bind an assessor determining a medical dispute in accordance with Pt 3.4 of the Motor Accidents Compensation Act.

Factual background

6. Mr Spratt’s injury was suffered on 11 October 2011 at Broken Hill in far western New South Wales. According to a history given to one of the orthopaedic surgeons who examined him, the injury occurred as follows:

“In an attempt to straighten the bull bar on a vehicle, the vehicle was being driven against a vertical post and Mr Spratt was holding a block of wood between the two. He was momentarily distracted and his right hand was crushed between the vehicle and the block. The contact area was across the ulnar four digits. He said that he pulled his hand out forcibly to extract his fingers and in the process, the skin of the ring finger was peeled back. He fell to the ground.”

7. The injury to Mr Spratt’s hand and arm was serious, and he was flown to Adelaide for treatment.

Mr Spratt’s workers compensation claim and proceedings

8. Mr Spratt, by his solicitor, made a claim upon his employer’s workers compensation insurer for $65,750, comprising $35,750 with respect to 22% whole person impairment and $30,000 with respect to pain and suffering, pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (NSW). The insurer disputed the claim. It maintained that Mr Spratt’s whole person impairment was only 5%, and it disputed that any injury had been suffered to Mr Spratt’s cervical spine or that his claim for whole person impairment had arisen from an accepted workplace injury.

9. Mr Spratt thereupon made an application to the Workers Compensation Commission, which identified the matter in dispute as “Lump sum compensation where liability in dispute”. The employer filed a reply confirming the position stated by its workers compensation insurer. It seems that there was an arbitration hearing held on 4 May 2015 before Arbitrator Perrignon constituting the Workers Compensation Commission. A document titled “Statement of Reasons – Extempore Orders” [sic] states that the Arbitrator used his best endeavours to bring the parties to an agreed resolution of the dispute, but that the parties were unable to come to an agreement. The document states that “the reasons for the orders set out below were given orally on 4 May 2015”, and that a sound recording of the reasons was available to the parties. However, the reasons given by the Arbitrator were not put into evidence. The “order” which is said to found this issue estoppel was the first order made on that occasion:

“The Applicant injured his cervical spine in the course of his employment on 11 October 2011, by aggravating, exacerbating, accelerating and making worse a pre-existing condition of cervical spondylosis.”

10. A “Certificate of Determination” was issued by the Registrar, purportedly pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The certificate is irregular. Paragraph 1 repeats the “order” reproduced above. Paragraphs 2 and 3 repeat the procedural directions made by Arbitrator Perrignon. Paragraphs 4, 5 and 6 repeat, verbatim, paragraphs 1, 2 and 3. Contrary to the requirement in s 294(2), the certificate does not attach a “brief statement ... setting out the Commission’s reasons for the determination”.

11. Nothing turns on the absence of reasons or other irregularities referred to above. The parties proceeded on the basis that the “order” made by Arbitrator Perrignon amounted to a determination that the accident on 11 October 2011 caused injury to Mr Spratt’s cervical spine. I shall adopt the same approach.

Mr Spratt’s motor accident claim and proceedings

12. Mr Spratt’s lawyers wrote to Perilya’s solicitors on 4 February 2015 stating that unless they heard to the contrary within 14 days, they would proceed on the basis that it was not accepted that Mr Spratt exceeded the 10% whole person impairment requirement. That was a reference to the prohibition upon the award of damages for non-economic loss imposed by s 131 of the Motor Accidents Compensation Act. On 24 February 2015, an application for assessment of a permanent impairment dispute was made by Mr Spratt to the Medical Assessment Service, attaching the letter to Perilya’s solicitors and a medical report concluding that Mr Spratt’s whole person impairment was 22%.

13. That in turn led to an assessment by Assessor Schutz on 9 July 2015, who determined that no injury to the cervical spine had been caused by the motor accident. The Assessor certified that there was no injury caused by the motor accident that gave rise to a permanent impairment of greater than 10%. In the course of the reasons accompanying the certificate, Assessor Schutz said the following:

“Assessor Ryan assessed the cervical spine to be not related to the accident. However, according to Mr Spratt he had a court case and this decision was reversed and consequently there is requirement for assessment of the cervical spine as part of the claimed injuries.”

14. Assessor Schutz stated that Mr Spratt had attended upon him for the purpose of medical assessment, and that he conducted a clinical examination, including of Mr Schutz’s cervical spine. The Assessor stated his findings in that respect as follows:

“Cervical spine

He indicated vague discomfort over the cervicothoracic region posteriorly. There was no focal point of discomfort and no spinal level of particular discomfort.

Movements of the cervical spine were considered normal:

Flexion: 45 degrees.

Extension: 45 degrees.

Lateral flexion: 35 degrees right, 35 degrees left.

Rotation: 75 degrees right, 70 degrees left.

There was no asymmetry, and there was no observation of muscle guarding or spasm.

Although he reported right arm symptoms those symptoms were due to local conditions (see below). Cervical spine radiology had shown no more than minimal disc pathology which would be unlikely to cause any radiculopathy or symptoms extending into the hand or in the distribution of those symptoms. There is no evidence of cervical radiculopathy or a non-verifiable radicular complaint.”

15. The Assessor’s conclusions on the cervical spine were as follows:

“Pathology determined on the 11.05.2012 MRI scan was relatively minor C3-C4 and C4-C5 disc abnormality.

Note that degeneration at these spinal levels is common even in the population of persons of Mr Spratt’s age. There was no likelihood of a cervical spine injury in the accident as described. There may have been a strain to the right upper limb and a strain in the soft tissues in the vicinity of, but not including the cervical spine.”

16. Mr Spratt subsequently made an application to the Proper Officer of the Motor Accidents Authority to refer his medical assessment to a review panel, pursuant to s 63 of the Motor Accidents Compensation Act. The Proper Officer’s power to refer an assessment to a panel is available “only if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application”: s 63(3). By decision made on 22 October 2015, the Proper Officer refused Mr Spratt’s application. The decision records the submission made by Mr Spratt that the assessment was incorrect in a material respect, “in that the Assessor made a finding in respect of the neck when he was not entitled to do so because there was an issue estoppel between the parties from a decision handed down in the Workers Compensation Commission on 4 May 2015”. The reasons of the Proper Officer were as follows:

“The dispute that was referred by the now applicant to MAS under section 58 of the Act was ‘the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident’ (my emphasis). A consideration of the causation of the claimant’s symptoms and impairments is implicit in any such assessment. While I note the applicant submits that the issue of causation of the cervical spine was already determined, they have not referred to any Guidelines, legislation or case law which supports their submission that a MAS Assessor does not have to determine causation when assessing permanent impairment. To the contrary, the implication in the legislation and the guidance from the MAA Guidelines (see clause 1.7) is that whether a claimant’s impairment is related to the motor accident is implied in all assessments. Therefore, as the cervical spine injury was an injury listed by the applicant as an injury for assessment, Assessor Schutz was correct in questioning whether it was caused by the subject accident. The fact that another body came to another conclusion does not prevent him from making such a decision.”

17. Speaking generally, Mr Spratt had, by reason of s 109 of the Act, three years to commence proceedings (there are significant qualifications to that proposition which I pass over). During the hearing in this Court it emerged that, by statement of claim filed on 5 September 2014 (shortly before the earliest possible expiry of that three year period), Mr Spratt had commenced proceedings against Mr Rowe and Perilya Broken Hill Ltd in the District Court seeking damages for negligence.

18. Although less than perfectly drafted, on a fair reading of the statement of claim it emerges that Perilya is only said to be liable by reason of it having employed Mr Rowe and being vicariously liable for his negligent acts and omissions. I say that because although it is alleged that Mr Spratt’s injuries “were caused by the negligence of the Defendants”, there is no allegation of duty owed by Perilya, or breach of duty by Perilya, or particulars of negligence attributable to Perilya, while there is a positive allegation that Perilya employed Mr Rowe and “as such is vicariously liable for [his] negligent acts or omissions”. Ultimately, I understood Mr Goodridge, who appeared for the applicant, to accept that characterisation of the pleading.

19. By notice of motion filed in the District Court action, Mr Spratt sought an order that he be referred under s 62(1)(b) of the Motor Accidents Compensation Act for further assessment. The primary judge (Bozic DCJ) gave a reserved decision on 4 December 2015 refusing that application. His Honour gave four reasons for doing so. The first was that he was of the view that there was no prospect of any different outcome, because the question whether there was any issue estoppel was not an issue for a medical assessor to determine. His Honour said:

“As a matter of law issue estoppel either does or does not apply and in my view there is no point in seeking the view of a medical assessor on a legal issue”.

20. Secondly, his Honour was of the view that if the Supreme Court determined that there was an issue estoppel, then the Proper Officer had made an error of law. Mr Stanton, who appeared for the respondents before the primary judge and on appeal, candidly conceded as much before this Court.

21. Thirdly, his Honour was of the view that the Proper Officer was amenable to certiorari, in accordance with what was said in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [70].

22. Fourthly, his Honour observed that, as a matter of discretion, if the matter were to be sent back:

“[O]ne party or the other would be dissatisfied and would no doubt seek to have the alleged error of law be it that issue estoppel applies or that issue estoppel does not apply, tested in an application for appropriate relief under s 69 of the Supreme Court Act. To send the matter back to a medical assessor would in my view simply prolong the matter unnecessarily and would not produce a resolution of the real issue in dispute between the parties, but would simply return them after a period of time to the point at which they are currently at.”

23. In this Court, Mr Spratt seeks judicial review of the decision of the Proper Officer, and seeks leave to appeal from the interlocutory decision of Bozic DCJ. There are many infelicities in both originating processes, but in oral submissions it was made clear that, save for a matter to which I return at the conclusion of these reasons, the nature of Mr Spratt’s challenges was as summarised above. Mr Spratt also accepted the appropriateness of amending his summons so that Perilya Broken Hill Ltd rather than the District Court of New South Wales was the first defendant, so as to comply with Pt 59 r 59.3(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

There was no issue estoppel

24. It was common ground between the parties that an issue estoppel may arise in a motor accident damages claim as a result of workers compensation proceedings between the same parties. That has consistently been held by appellate courts notwithstanding the considerable changes to the constitution of the body authorised to decide workers compensation disputes. However, the basis for the conclusion has varied.

25. Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285, the first High Court decision cited by the parties, turned on a narrower proposition. The employer had, by its third plea to the plaintiff’s declaration, raised estoppel, based on an award of Judge Rainbow QC sitting in the Workers Compensation Commission holding that the alleged injury to Mr Somodaj’s back was not suffered in the course of his employment. Mr Somodaj demurred to the plea. (It is to be recalled that the litigation pre-dated the judicature legislation in this State, and reflected the traditional mode of common law procedure.) Mr Somodaj submitted that the decision of Judge Rainbow could not raise any estoppel, and his first submission was that the Workers Compensation Commission was an administrative body. That submission was rejected by the Full Court (Owen J, Clancy and Walsh JJ concurring), and the joint judgment of the majority of the High Court (Kitto, Taylor and Menzies JJ) “respectfully agreed with the way in which [the Supreme Court] dealt with the contentions then raised”: at 296. Owen J had rejected the submission on a narrow basis, explaining that in hearing and determining the dispute between worker and employer, the Commission exercised judicial functions as a court, was defined as a court of record, its members had the status of a judge of the District Court, they took the judicial oath and they had power to summon witnesses and to punish for contempt. His Honour concluded, “Having regard to these provisions, I am of opinion that in hearing and determining applications for compensation the Commission is a court”: Somodaj v Australian Iron and Steel Ltd [1961] SR NSW 305 at 308. (For clarity, I have omitted some of the procedural history of this litigation.)

24. Likewise, in Egri v DRG Australia Ltd (1990) 19 NSWLR 600, the decision which was held to give rise to an estoppel was that of the Compensation Court.

25. Of course, the fact that a body is styled a “commission” or a “tribunal” does not prevent it being a court. The Dust Diseases Tribunal (which is a court of record) and the Upper Tribunal in the United Kingdom (which is a superior court of record) are examples. Moreover, a body may be a “court” for one purpose (Suitors’ Fund Act 1951 (NSW)) and not a court for another (s 77(iii) of the Constitution): see, for example, Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101 at [68].

26. The decision of Arbitrator Perrignon constituting the Workers Compensation Commission is not, in contrast to what was held in Somodaj and Egri, a decision of a court. However, it became clear no later than the reasons given by Gibbs J in The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 that a non-curial decision could found an issue estoppel. His Honour there said that:

“The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.”

29. That proposition has not thereafter been doubted: see for example Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [22].

30. Finality is necessary in order for a decision to ground an issue estoppel: Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at [40]. Even so, as that decision reveals, it is not sufficient that a statute states that a decision is final. However, the breadth of s 350 of the Workplace Injury Management and Workers Compensation Act is sufficient. Subsection (1) of that section made Arbitrator Perrignon’s decision “final and binding on the parties” save for the procedures for appeal and review under that Act, and subs (2) provided that it was not liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

31. Hence, the parties were correct to proceed on the basis that the decision of the Workers Compensation Commission constituted by Arbitrator Perrignon could give rise to an issue estoppel, no differently from what had occurred in CSR Timber Products Pty Ltd v Weathertex Pty Ltd [2013] NSWCA 49; 83 NSWLR 433 at [14].

32. In Kuligowski v Metrobus at [21], the High Court applied the requirements stated by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 in applying the doctrine of issue estoppel:

“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”

33. I am content to assume, favourably to Mr Spratt, that the same question arose in connection with his claims under the workers compensation and motor accident legislation (no submissions were directed to that point). It is the third requirement which is decisive. An issue estoppel can only bind the parties and their privies.

34. Mr Rowe, the driver of the vehicle which injured Mr Spratt, was not a party to the decision of Arbitrator Perrignon. Nor was he a privy to Perilya. It is plain that he cannot be bound by Arbitrator Perrignon’s determination as to causation.

35. Against this, Mr Spratt submitted that it could make no difference, because Perilya was a party to both proceedings. As it was put orally:

“[F]or all practical matters it wouldn't make any difference, because as long as the Perilya is a defendant in the proceedings and the issue estoppel can be raised against Perilya, Perilya is insured, Perilya, the damages will be identical, it would have no practical effect.”

36. I cannot accept Mr Spratt’s submission. Although Perilya is a party to both the proceeding in the Workers Compensation Commission and the action in the District Court, its liability in the District Court depends upon Mr Rowe being found to have breached a duty of care which was causative of loss to Mr Spratt. It cannot be that Perilya is vicariously bound to pay some heads of damages which Mr Rowe is not, or may not, be liable to pay.

37. That is so irrespective of whether Perilya’s vicarious liability is based upon the liability of Mr Rowe or the conduct of Mr Rowe. It is unnecessary for present purposes to outline the lines of judicial and academic authority for these competing concepts (something which was not even touched on in this Court, but which has been succinctly summarised in Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78 at [48]-[57]). It suffices to say that if, as Allsop P said in Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 at [52]-[54], the preferred view is that the employer is vicariously liable by reason of Mr Rowe's liability, then it is plain that the issue estoppel asserted by Mr Spratt cannot apply. However, even if the “conduct” theory be preferred, such that Perilya is liable not because of the liability of Mr Rowe, but because of Mr Rowe’s conduct, the issue estoppel on which Mr Spratt relies is inapplicable. Whether or not Mr Rowe’s negligence caused damage to Mr Spratt’s cervical spine cannot be predetermined by Arbitrator Perrignon's decision.

38. In his subsequent oral submissions, Mr Spratt relied upon the fact (so it was said) that there was a single insurer defending both claims. It was said that the cause of action against Mr Rowe to which the issue estoppel did not apply was:

“of no [practical] difference because there is a cause of action against Perilya and there is [an] issue estoppel there and it’s one [and] the same insurers.”

39. Again, even assuming (favourably to Mr Spratt) that Allianz Australia Workers’ Compensation (NSW) Ltd is the insurer responding to Mr Spratt’s motor accident claim (whether that is so is not clear from the materials), the availability of an issue estoppel does not turn on that happenstance.

40. To the extent that it might be thought that this is a somewhat technical answer to Mr Spratt’s contentions, two things may be said. The first is that Mr Spratt himself is seeking to rely upon a “technical” doctrine of the common law so as to cause the determination by Arbitrator Perrignon as to causation to displace the determination of the same issue by a qualified medical practitioner, who had the benefit of clinically examining Mr Spratt. The second is that, for the reasons given below, I have concluded that even if there were an issue estoppel, the Motor Accidents Compensation Act makes it clear that primacy is to be given to the determination of a medical assessor.

Any issue estoppel as to causation is inconsistent with the Motor Accidents Compensation Act

41. As Gleeson JA said, with the agreement of Macfarlan JA and me, in Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 at [17]:

“It is well established that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) is unequivocally for the medical assessor, or review panel, as the case may be, including the element of causation: Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125 at [79] (Giles JA; Tobias JA and Handley AJA agreeing); Ackling v QBE Insurance (Australia) Ltd [2009] NSWCA 881; 75 NSWLR 482 at [77] – [79].”

That proposition, which should be regarded as settled law, flows directly from the text of s 58(1)(d) and s 131.

42. The submission that the Medical Assessor is bound by an issue estoppel on the question of causation is inconsistent with that proposition. As the Proper Officer herself said, a consideration of causation is implicit (or inherent) in the assessment required by the statute.

43. True it is that Rodger v De Gelder was not itself a case of issue estoppel. However, the first decision cited by Gleeson JA, Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125, was factually similar and was at the forefront of the helpful submissions advanced by Mr Stanton on behalf of Perilya and Mr Rowe. In Mills there had been a trial before a District Court judge on questions of liability. The trial judge accepted the evidence of the plaintiff and found that the injury to Mr Mills’ back was causally related to the motor vehicle accident. His Honour referred the matter for further medical assessment pursuant to s 62. Eventually, his Honour made an order referring only “the question of the extent of [Mr Mills’] 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”.

44. This Court allowed an appeal and concluded that causation could not be excluded from a referral to medical assessment under Pt 3.4 of the Motor Accidents Compensation Act. The leading judgment was given by Giles JA. His Honour carefully analysed the scheme of the legislation, emphasising that the assessment conducted by a medical assessor was, except in exceptional circumstances, given the status of conclusive evidence of the issue of permanent impairment. His Honour observed (albeit in a passage which was obiter) that the composite phrase “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident” in s 131 of the Motor Accident Compensation Act included two elements: the degree of permanent impairment and causation of the degree of permanent impairment: at [59]. Essentially, because both issues were for the conclusive determination of an assessor, Giles JA held that the limited referral made by the District Court judge went beyond the power conferred by s 62. Tobias JA and Handley AJA agreed with Giles JA.

45. Subsequent (minor) amendments to the legislation do not detract from the force of the reasoning in Mills, and Mr Spratt did not submit to the contrary.

46. A number of matters flow from this Court’s decision in Mills. First, the ratio of Mills is that the Motor Accidents Compensation Act leaves, for the exclusive and conclusive determination by medical assessors, questions of permanent impairment and causation. The legislation has that effect notwithstanding the final determination of the Court following a conventional trial. It necessarily follows that the legislation abrogates common law issue estoppel to the extent that it would otherwise preclude a medical assessor from performing the tasks imposed on him or her by the Motor Accidents Compensation Act.

47. Secondly, the final determination of causation by the District Court in Mills must have given rise to an issue estoppel. Although Mills was not argued on the basis of issue estoppel, acceptance of Mr Spratt’s submissions would mean that Mills was wrongly decided.

48. Thirdly, the submission variously made by Mr Spratt to the Proper Officer, the District Court and in this Court that the Medical Assessor was bound to apply what had been determined by Arbitrator Perrignon was incorrect. The reasons given by the Proper Officer reproduced above correctly stated that a consideration of the causation of the claimant’s symptoms and impairments is a matter required to be undertaken by an assessor.

Clause 1.7 of the Permanent Impairment Guidelines

49. Mr Spratt made a further submission, based on cl 1.7 of the “Permanent Impairment Guidelines” issued by the Motor Accidents Authority. It is convenient to reproduce that clause and the two which follow, with emphasis added to the words on which Mr Spratt placed reliance:

“Causation of injury

1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: ‘Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.

(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

(b) The alleged factor did cause or contribute to worsening of the impairment, which is a nonmedical determination’.

This therefore involves a medical decision and a non-medical informed judgement.

1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

50. Mr Spratt submitted that by reason of s 44, the Guidelines were binding upon the Medical Assessor. That is not so, although it is true that s 65 provides that medical assessments under Pt 3.4 are “subject to” relevant provisions of guidelines including the Permanent Impairment Guidelines. Mr Spratt’s principal submission was that the reference to “the common law principles that would be applied by a court (or claims assessor) in considering such issues” included a reference to the common law principle of issue estoppel. In that way, so it was said, the Motor Accidents Compensation Act indirectly caused the Assessor to be bound by the issue estoppel.

51. There are a number of reasons why I cannot accept that submission, even if there had been an issue estoppel binding Mr Rowe and Perilya. The first is that there is no basis to conclude that either a guideline, or the obligation upon a medical assessor to comply with a guideline, could contradict an obligation imposed by the Act. If on its proper construction it did so, then it would seem likely that it was to that extent ultra vires. If there were a choice between two constructions, one of which led to invalidity, that would be a sound reason for preferring the alternative construction: see for example McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [95].

52. The second is that cl 1.7 of the Guidelines is, on its face, something less than mandatory. Clause 1.3 provides:

“The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.”

53. It is clear that text which is not in bold is something less than a “directive”. Although I have emphasised the portion of cl 1.7 on which Mr Spratt relies, none of cl 1.7 in the Guidelines as published is in bold. I do not see how Mr Spratt’s submission as to the mandatory effect of cl 1.7 can be consistent with its not being a provision in bold which attracts cl 1.3.

54. The third is that the language of cl 1.7 falls short of imposing a requirement that assessors should apply common law principles. In terms, it states merely that assessors “should be aware” of such principles. The non-obligatory language of cl 1.7 is in contrast with what immediately follows, notably, “it is necessary to verify” both of the factors stated in cl 1.8.

55. The fourth is that I would regard the closing sentence of cl 1.7 as introductory to what is said about common law principles of causation which are summarised in the immediately following clauses. I do not consider cl 1.7 is directed to issue estoppel at all.

56. For those reasons, Mr Spratt’s arguments are not assisted by cl 1.7 of the Permanent Impairment Guidelines.

57. That is sufficient to dismiss both of Mr Spratt’s challenges. However, even if that were not so, there is no error whatsoever in any of the reasons given by the District Court refusing to order a further assessment. The appropriate course was to challenge the decision of the Proper Officer, as pointed out by Bozic DCJ, which Mr Spratt has done. For that reason, even putting to one side the serious deficiencies in the draft notice of appeal, I would not grant leave.

Other irregularities and deficiencies in Mr Spratt’s proceedings

58. I turn to some less than satisfactory features of these proceedings. The first is the affidavit in support of Mr Spratt’s summons. The body of the affidavit was short, but it was accompanied by some 250 pages said (inaccurately) to be annexures. The affidavit was not paginated, which was a source of recurring embarrassment to counsel presenting Mr Spratt’s submissions, and a source of delay on the part of the Court in preparing for and conducting the hearing. The entire White Book should have been paginated: UCPR r 51.12(5)(f).

59. Secondly, the summons seeking judicial review invoked this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). It was directed both to the decision of the Proper Officer and to the decision of the District Court. It did not seek any orders setting aside either of those decisions, although plainly enough that was the primary relief sought by Mr Spratt. It contained some 13 grounds on which relief was sought, including ultimately, “such further or other grounds as may appear reasonable once transcripts including the transcript of judgment becomes available”. That ground was only abandoned at the conclusion of the hearing.

60. Only one of the grounds was directed to a failure attributable to the District Court. That ground was expressed as follows:

“The failure by His Honour Judge Bozic SC to allow the Medical Assessment Service and a Medical Assessor the opportunity of applying Clause 1.7 of the Guidelines with the evidence of the issue estoppel properly before a Medical Assessor including depriving the plaintiff the opportunity of making submissions to a Medical Assessor upon re-referral under Section 62 of the Motor Accidents Compensation Act, 1999.”

61. That ground, to the extent I understand it, does not correspond to any available ground of judicial review. Its gravamen is that there was a failure insofar as the medical assessment took place without proper evidence of the issue estoppel. For the reasons already given, there was no issue estoppel, nor if there was such an issue estoppel, could it impact upon the determination by the Medical Assessor of causation. But in any event, the failure to have “proper” evidence of that matter was attributable to those providing legal assistance to Mr Spratt, who had in their possession the determination of Arbitrator Perrignon, but permitted their client to attend the assessment without providing that document to him.

62. Thirdly, after the completion of Mr Spratt’s oral submissions, he was asked whether he pressed grounds (k) and (l) which asserted a denial of natural justice by the Assessor. It is to be appreciated that a denial of procedural fairness, whether directed to a court or a tribunal, is a serious allegation. Eventually, and properly – no such submission having been put orally or in writing – those grounds were abandoned.

63. Fourthly, it is necessary to say something of the remaining nine grounds because, notwithstanding an opportunity having been provided to Mr Goodridge to consider whether they were pressed, he insisted that they were. Those grounds were as follows:

“(a) The Proper Officer's erroneous conclusion that a Medical Assessor may not or ought not have regard to a finding between the parties in respect of injury to the neck in the Workers Compensation Commission as either a fact and/or as an issue estoppel when considering and/or determining a question of causation of injury. Such error constituting an error of law including identifying a wrong issue; making an erroneous finding and reaching a mistaken conclusion including having regard for irrelevant considerations and failing to consider relevant considerations.

(b) The Proper Officer's inflexible application of policy and failure to have regard that an application may be a novel application and giving total or undue weight to the fact that the Applicant was not able to cite ‘legislation or case law which supports their submission’.

(c) The Proper Officer's failure to correctly articulate and apply principles of causation including the common law.

(d) The Proper Officer's failure to allow proper evidence to be place before a medical assessor on review in order that a medical assessor might correctly articulate and apply principles of causation including the common law.

(e) The Proper Officer's erroneous statement of the issue in terms that the Plaintiff's Application was, or could be summarised as being based upon the assertion that ‘a MAS Assessor does not have to determine causation when assessing a permanent impairment’.

(f) The failure of the Proper Officer to appreciate that Assessor Schutz had fallen into error as noted at page 15 in that he failed to take into account or failed to give reasons what if any weight Medical Assessor Schultz gave to the non-binding assessment by Workers Compensation Commission Assessor Ryan or the binding determination contrary to Workers Compensation Assessor Ryan. This lead to the comment at page 15 of the assessment ‘Assessor Ryan assessed the cervical spine as not being related to the accident. However, according to Mr Spratt he had a Court case and this decision was reversed and consequently there is a requirement for assessment of the cervical spine as part of the claimed injuries’ unexplained and unweighted.

(g) The failure to refer the matter for further assessment pursuant to section 62 of Motor Accidents Compensation Act, 1999 and thereby depriving the plaintiff of the opportunity to have causation and impairment determined by the Medical Assessment Service having regard for all facts relevant to the determination of the plaintiff's injuries and impairments.

(h) Failure to regard or have regard for clause 1.7 of the Guideline for Assessment of the Degree of Permanent Impairment in particular, ‘Causation of injury’ ‘Assessors should be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a Court (or Claims Assessor) in considering such issues.’

(i) Failure to re-refer, pursuant to section 62 depriving both the plaintiff and the Medical Assessor of the opportunity to have determined and determine the claim respectively having regard for common law principles of causation.”

64. These grounds are embarrassing, both in their lack of clarity and in their repetition, and in their failure to identify the gravamen of Mr Spratt’s claim, which is that if he is right as to issue estoppel, there was an error of law on the face of the record of the decision of the Proper Officer.

65. Although each of those grounds was pressed, in light of my reasoning above they may and should be disposed of concisely. To the extent that ground (a) goes beyond the points already identified, there is no question of any failure to have regard to relevant considerations or having regard to irrelevant considerations; the Proper Officer squarely addressed the submission advanced to her. In relation to (b), there was no suggestion in the evidence, or submissions, of any inflexible application of policy, while the inability on the part of Mr Spratt’s submissions to point to any authority cannot give rise to a ground based on giving undue weight to some factual matter. In relation to (c) and (d), it was no part of the Proper Officer’s task to articulate and apply principles of causation, or to permit “proper evidence” to be placed before the Medical Assessor; the question for her was that posed by s 63 of the Act, in relation to an assessment in which Mr Spratt’s lawyers had seemingly failed to ensure that he supplied the decision of Arbitrator Perrignon. There is no error as claimed in grounds (e) or (f) for the reasons already given. Grounds (g) and (i) amount to complaints concerning the Proper Officer’s conclusion, but neither grounds explain why it should be set aside. Finally, ground (h) is baseless, for the Proper Officer self-evidently, in the dispositive paragraph of her reasons, had regard to cl 1.7.

66. Fifthly, much the same criticisms may be directed to the six proposed grounds in the draft notice of appeal. For example, grounds 5 and 6 were:

“5. In failing to exercise his power of further referral pursuant to Section 62(1)(b) by reason of error of law, addressed himself to the wrong questions, ignored relevant material, relied on irrelevant material and reached a mistaken conclusion.

6. In failing to find that the Proper Officer also failed to exercise his or her power by reason of error of law, addressed himself or herself to the wrong questions, ignored relevant material, relied on irrelevant material and reached a mistaken conclusion.”

67. Many of the grounds in the summons and the draft notice of appeal seem to have been drafted with a view to extending to any conceivable ground of judicial review, and fail to identify, for the benefit of the opposing side and the Court, the basis upon which the challenges are being advanced with requisite clarity and precision.

68. Had the originating process in this Court been drafted by an unrepresented litigant, I would make no comment. However, this is not the only case where experienced counsel has advanced proceedings in the nature of judicial review with grounds drafted in an ambit fashion. Whatever be the practice of relying on standard form particulars of negligence in motor vehicle actions, it should not be translated to judicial review proceedings. To be quite clear about this:

1. if there is said to be an error of law on the face of the record, the error should be identified;

2. if relevant material (which is to say, material which statute expressly or impliedly requires the decision-maker to have regard to, failing which the decision is invalid) is said to have been ignored, the material should be identified;

3. if irrelevant material (which is to say, material which statute expressly or impliedly provides that a decision which has regard to it is invalid), is said to have been relied on, the material should be identified.

69. Sixthly, the written summary of argument provided by Mr Spratt was unsigned and was – to put the matter neutrally – unilluminating in terms of the real issues sought to be agitated. In implicit acknowledgment of the limitations of the written submissions supplied in advance of the hearing, Mr Goodridge supplied at the commencement of the appeal a further document, to which he spoke, which was substantially different from that which had hitherto been articulated. The respondents made no complaint about the late notice of what emerged as the principal submissions advanced in this Court, but as has repeatedly been said, it is important for the efficient administration of justice, as well as for ensuring a process which is procedurally fair, that early attention be given, at the time written submissions are drafted, to the case which is sought to be advanced. As McColl JA said in Warth v Lafsky [2014] NSWCA 94; 66 MVR 445 at [80]:

“The Court should not have to entertain an entirely new case advanced for the first time in the course of oral argument.”

70. There is in my view much to be said for submissions which are unsigned and which self-evidently will not reflect the case sought to be advanced by counsel briefed in the matter to be returned to the lawyers who sought to rely upon them. The requirement that the written submissions be signed by the barrister or solicitor who prepares them (where the party is represented) in UCPR Pt 51 r 51.12(3)(b) and r 51.36(1)(d) is directed to ensuring a measure of discipline upon the legal representatives of the parties, fairness to the other side and efficient administration by the Court, and compliance by the practitioners with their obligations under s 56(4) of the Civil Procedure Act 2005 (NSW). In the present case, those rules were flouted. If the non-compliance had made it necessary for the matter to be adjourned, there may have been cause for a special costs order.

Orders

71. For those reasons, I propose the following orders:

In 2016/17278:

1. Amend the parties so that the first defendant is Perilya Broken Hill Ltd.

2. Dismiss the summons filed 18 January 2016 with costs.

In 2016/101717:

1. Dismiss the summons seeking leave to appeal with costs.

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Decision last updated: 04 August 2016