Mullin v CIC Allianz Australia Ltd and Anor

1. [1]

   On 11 August 2010 the plaintiff, Mr Mullin, was a passenger in a bus. The bus stopped suddenly because two other buses were parked in the bus lane in which it was travelling. Mr Mullin’s arm and shoulder were hurt when they became trapped between another passenger and a railing.

2. [2]

   On 23 August 2010 Mr Mullin lodged a motor accident personal injury claim form with the second defendant, the Motor Accidents Authority (“MAA”). The relevant insurer in respect of his claim is the first defendant to these proceedings, CIC/Allianz Australia Limited (“CIC”).

3. [3]

   In March 2013 Mr Mullin filed an application for an assessment of a medical dispute by the Medical Assessment Service (“MAS”) under Part 3.4 of the Motor Accidents Compensation Act 1999 (the “MAC Act”). In July 2013 he obtained such an assessment. However in 2014 CIC successfully applied to a “Proper Officer” of the MAA (the “proper officer”) under s 62 of the MAC Act for the medical dispute to be referred again for another assessment.

4. [4]

   Mr Mullin now seeks judicial review of the proper officer’s determination to refer the medical dispute for another assessment. He invokes this Court’s supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970. His sole complaint is that the proper officer wrongly construed so much of s 62 as required that CIC’s application for a further referral be on the basis that “additional relevant information” was provided. He contends the proper officer erred in only considering that information in possession of CIC at the time of the assessment was not “additional” and in refusing to consider whether information that was not in CIC’s possession, but was reasonably available to it at the time of the assessment, was “additional”.

5. [5]

   For the reasons that follow I do not consider that Mr Mullin has established any error on the part of the proper officer in this regard. His summons must be dismissed.

Further background

1. [6]

   In his motor accident personal injury claim form lodged on 23 August 2010 Mr Mullin described his injuries as whiplash to the shoulder and neck. He was later diagnosed with a “pinched C7 nerve root”. On 29 November 2011 he underwent a “discectomy operation”. In the meantime, CIC issued a notice admitting liability. However, there was still dispute about the extent of the injuries he suffered as a result of the accident, particularly his level of permanent impairment. On 6 March 2013 he filed an application for an assessment of that dispute.

2. [7]

   On 4 July 2013 an MAS assessor appointed under s 59 of the MAC Act, Dr Meares, determined that Mr Mullin’s scarring from his operation gave rise to a permanent whole person impairment of 2%.

3. [8]

   On 2 August 2013 another MAS assessor, Dr Knoll, determined that the soft tissue injuries to Mr Mullin’s cervical spine and shoulder gave rise to a whole person impairment of 20%.

4. [9]

   On or about 5 August 2013 Dr Knoll issued a combined certificate for both sets of injuries which recorded that the “impairment sustained by [Mr Mullin] in the motor accident is considered to give rise to a permanent impairment which in total is greater than 10%”, namely 22%. The effect of such a certificate is that, subject to s 61(4) of the MAC Act, it is “conclusive evidence as to the matter certified in any court proceedings or any assessment by a claims assessor in respect of the claim concerned” (MAC Act; s 61(2)). The degree of an injured person’s level of personal impairment determines the level of damages for non-economic loss that they may recover (see Part 5.3 of the MAC Act).

5. [10]

   On 12 August 2014 CIC applied to the proper officer for the medical dispute to again be referred for a further medical assessment. The basis of the application was said to be that there was “additional relevant information” about Mr Mullin’s injuries (MAC Act s 62(1)(a)). Attached to the application was a large number of documents as well as a DVD said to constitute the additional information. That material included clinical notes from Mr Mullin’s treating general practitioner, Dr Savic-Urosevic, and his treating specialist, Dr Quain. In the submissions that accompanied the application CIC contended that the material demonstrated, inter alia, that Mr Mullin had a pre-existing shoulder condition and that impacted on Dr Knoll’s assessment which had “made no reduction for pre-existing injuries due to the absence of evidence”.

6. [11]

   On 15 September 2014 Mr Mullin’s solicitors filed a response. In the submissions that accompanied the response they contended that the bulk of the material provided by CIC was previously available to it “pursuant to the Claim Handling Guidelines” because Mr Mullin had provided CIC with authorisations to obtain that material from the relevant doctors. The reference to the Claim Handing Guidelines is to guidelines issued under s 68(1) of the MAC Act. Sub-clause 10.1 of those guidelines provides that, in the course of considering a claim, an insurer “will, if necessary, request hospital discharge summaries and clinical notes”.

7. [12]

   CIC responded to this submission on 29 September 2014. It contended that the material was only not “additional if it was not in its possession at the time of the medical assessment”. Its submission continued:

8. [13]

   The last sentence is curious because nowhere in CIC’s submissions to that time had there been any material to suggest that it had sought to obtain Dr Quain and Dr Savic-Urosevic’s notes prior to the completion of Dr Knoll’s assessment.

9. [14]

   On 8 October 2014, a case officer from the MAS wrote on behalf of the proper officer to the parties inviting submissions on whether the material that had been provided by CIC was capable of having a material effect on Dr Knoll’s assessment (MAC; s 62(1A)). The letter recounted that there was “no question that the documents were not available at the original MAS assessment and they do constitute relevant information”, implicitly suggesting that that was sufficient to render them “additional”.

10. [15]

    The parties lodged further submissions as requested. The submissions lodged on behalf of Mr Mullin took issue with the contention that the clinical notes were “additional”. They contended that information which was not in possession of CIC but which could have been obtained by reasonable steps was not “additional” information for the purposes of s 62.

Proper officer’s decision

1. [16]

   On or about 6 November 2014 the proper officer determined to refer the medical dispute relating to Mr Mullin’s permanent impairment for further assessment. In making that decision the proper officer was obliged to comply with guidelines made under s 44 of the MAC Act (see s 44(1)(d)). The guidelines included a requirement that a proper officer provide “brief written reasons” for their decision (clause 14.8; see Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594 at [15] per Beazley JA; “Rodger v De Gelder”). Reasons were provided.

2. [17]

   In her reasons the proper officer identified nine items of information relied on by CIC in its application for further referral. The proper officer determined whether each of them was relevantly “additional”. It was common ground between the parties that in doing so the proper officer considered that issue by asking whether or not each of the documents and the DVD were in the possession of CIC at the time of the MAS assessment (and otherwise not before the MAS Assessor). Thus, in relation to the clinical notes of Dr Quain and Dr Savic-Urosevic the proper officer stated:

3. [18]

   In the end result the proper officer identified six items of evidence that were said to contain additional information for the purposes of applying s 62, namely the clinical notes of Dr Quain and Dr Savic-Urosevic, a private investigator’s report dated 3 June 2014, a private investigator’s report dated 24 December 2013, the clinical notes of a surgeon and the clinical notes of a medical centre.

4. [19]

   The proper officer also addressed the issue raised by s 62(1A) of the MAC Act, namely the effect that this information were capable of having on the previous assessment, stating:

5. [20]

   No issue was taken on behalf of Mr Mullin with so much of the proper officer’s reasons as found that the information that was identified as additional was capable of having a material effect on Dr Knoll’s assessment.

Submission on determination

1. [21]

   Senior Counsel for Mr Mullin, Mr M.A. Robinson SC, contended that, on its proper construction, information was not “additional information” for the purposes of s 62 if it was reasonably available to a party to the MAS assessment, even if it was not in their possession at the time of the assessment. He contended that, in this case, the proper officer simply applied a test based on whether the material was in the possession of the parties at the time of MAS assessment and, in so doing, erred in law. Subject to the matter raised in [39], I agree that if the construction proposed on behalf of Mr Mullin by Mr Robinson SC is correct, then the proper officer’s decision is relevantly affected by an error of law. The material before the proper officer raised a real question as to whether Dr Quain and Dr Savic-Urosevic’s notes were or were not reasonably available to CIC at the time of the MAS assessment. However, the proper officer made no findings on that issue because she (implicitly) considered it to be irrelevant. The question that arises in these proceedings is whether the proper officer was correct to do so.

2. [22]

   The scheme of the MAC Act, including the resolution of “medical disputes” by assessments under Part 3.4 and the relevant provisions, was outlined by Beazley JA in Rodger v De Gelder & Anor at [7] to [15]. I have already referred above to s 68 of the MAC Act which makes provision for the specification of claim handling guidelines and the contents of those guidelines, including the obligation imposed on CIC to obtain or at least request, inter alia, the clinical notes of Dr Quain and Dr Savic-Urosevic.

3. [23]

   Section 62 of the MAC Act provides:

4. [24]

   Three matters should be noted about s 62. First, s 62(1B) refers to a “referral to the proper officer of the Authority”. It has been accepted that s 62 impliedly confers power on the proper officer to refer a matter for further medical assessment on the ground specified in s 62(1)(a) if s 62(1A) is satisfied (QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [4] and [16] per Basten JA, Ward JA and Young AJA agreeing; “Miller”; Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [78] per Meagher JA with whom Tobias JA agreed; “Henderson”).

5. [25]

   Second, the power of referral arises on the proper officer being satisfied that s 62(1A) has been met. Section 62(1A) does not stipulate a jurisdictional fact which a Court exercising a power of judicial review can determine for itself (Miller at [35] per Basten JA; Henderson at [49] per Beazley P and at [109] per Tobias AJA). Nevertheless the formation of an opinion or a state of satisfaction is not immune from judicial review. One basis for reviewing it is if it was formed by “misconstruing the terms of the relevant legislation” (R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432 per Latham CJ). Mr Mullin seeks a review on that basis.

6. [26]

   Third, it follows from the second point that a party cannot invite this Court to make a finding of fact not made by the proper officer in an endeavour to support their decision. At the hearing of these proceedings, Senior Counsel for CIC, Mr Rewel SC, attempted to tender material that was not before the proper officer in an endeavour to demonstrate that his client did make reasonable endeavours to obtain Dr Savic-Urovesic’s clinical notes prior to or around the time of the MAS Assessment. I rejected the tender of that material on the basis, inter alia, that it was a matter for the proper officer to determine and not this Court.

7. [27]

   It is not obligatory for a proper officer to segment their assessment of whether information is “additional” for the purposes of applying s 62(1)(a) and ss 62(1A) (Miller at [8] per Basten JA). Equally there is nothing precluding such separate treatment. It was the approach adopted by the proper officer in this matter. Hence the parties’ submissions were directed to the meaning of “additional … information”.

8. [28]

   There are various observations in the authorities concerning the characteristics that the further material must display compared to other material placed before the MAS Assessor before it can be found to be “additional” information (see for example Miller at [7] per Basten JA; Henderson at [104] to [106] per Meagher JA; McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434 at [41] per Button J; “McCosker”; Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [35] per Davies J; Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [38] to [41] per Rothman J).

9. [29]

   It is not necessary to outline much less attempt to reconcile these observations. They must all accommodate the circumstance that the determination is ultimately one for the proper officer. Instead the issue in this case concerns the source of the additional information. On that issue, both parties’ submissions proceeded by reference to the following passage from the judgment of Rothman J in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (“Singh (No 2)”):

10. [30]

    Thus in Singh (No 2) at [53] Rothman J construed s 62 as referring to information “additional to the party relying on it as a ground for further assessment” being material that was not “available” to, that is not in the possession of, the parties up to the time of the assessment (Singh (No 2) at [59]). His Honour did not consider it necessary to decide whether material that “was not in the possession of the party, but could have been on reasonable efforts” could constitute “additional … information” (Singh (No 2) at [59]).

11. [31]

    Singh (No 2) was followed and applied in McCosker. One of the parties contended that I had followed it in Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505. However in Mackey I entered consent orders because the parties agreed that an error of the kind referred to in Singh (No 2) had been committed. I merely concluded that it was “proper” to enter those orders (at [4]).

12. [32]

    In Miles v Motor Accident Authority (NSW) [2013] NSWSC 927 (“Miles”) Hoeben CJ at CL rejected the contention that “additional relevant information” did not include information already submitted to a proper officer in earlier application for a further medical assessment (at [28]). His Honour stated:

13. [33]

    Although the emphasised statements in the above passages from Miles were made in a different context to the circumstance of a party basing their application on material that was either in their possession or reasonably available to them at the time of the medical assessment, they nevertheless sit uneasily with Singh (No 2) at [53]. That said, the result of Singh (No 2) and Miles is that s 62(1)(a) is to be read as specifying a ground for applying for a further assessment by a party because of “deterioration of the injury or [that the party has since obtained] additional relevant information [to that which was before the assessor] about the injury”, with the reference to “additional relevant information” in s 62(1A) to be read accordingly.

14. [34]

    The rationale of Singh (No 2)’s interpretation of “additional” was the concern that parties could withhold material prior to their assessment and then use it as a basis for an application for a further assessment (Singh (No 2) at [52]). This possibility was seen as undermining those objectives of the MAC Act that seek, inter alia, “the early resolution of compensation claims” (Singh (No 2) at [52]). However, this overlooks the discretionary nature of the power conferred by s 62(1) on the proper officer (“may be referred again”). The objects of the MAC Act govern the exercise of that discretion (MAC Act; s 6(2)). If a party deliberately refrained from providing information in their possession to the medical assessor with a view to later using it as a basis for a further referral to the assessor then it would be open to a proper officer to exercise their discretion to decline to make a referral, even if s 62(1A) was satisfied. There is no reason why the proper officer cannot inquire of a party why material put forward in support of an application for a further referral was not put forward earlier, especially if the party had obligations under the claims handling procedures to obtain it.

15. [35]

    The purpose of the conferral of a power to refer a medical dispute for further assessment is to facilitate an ultimate determination that represents the correct and preferable decision. Such decisions will avoid the inconvenience of the adjournment of court proceedings or claims assessments (s 62(1)(b)). Against that, referrals especially in circumstances where parties have not been diligent in obtaining material and placing it before the assessor are undesirable. These competing considerations are best balanced and resolved by the proper officer exercising a discretion rather than construing the word “additional” as though it incorporates the common law’s understanding of “fresh evidence” in civil appeals which has been developed as a limited exception to the principles of finality in litigation (Council of the City of Wollongong v Cowan (1955) 93 CLR 435). There is no counterpart principle applying to assessments of medical disputes under the MAC Act.

16. [36]

    However, neither party mounted any challenge to Singh (No 2). Instead, Mr Robinson SC’s submissions in this case seek to extend Singh (No 2) so that material which the proper officer determines was available or reasonably available to a party prior to the medical assessment, even if not in their possession, is not “additional”. Mr Rewell SC’s submissions seek to draw a line at the holding in Singh (No 2) and not allow the word “additional” any further latitude. Both Counsel referred to the discussion of s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (“WIMWC Act”) in Singh (No 2) at [53] to [58]. Mr Rewell SC contended that the absence of the words in parenthesis in s 327 of the WIMWC Act (see Singh (No 2) at [55]) in s 62 strongly suggested that “additional” did not have the same meaning as it does in s 327. Neither party referred to any provision in the MAC Act bearing on this issue beyond what was discussed in Singh (No 2). The ordinary meaning of “additional” is “added” or “supplementary” (Macquarie Dictionary, sixth edition). Leaving aside to whom or what it is extra or supplementary, it is apt to describe material that was not in the possession of either the assessor or a party, even though one party exercising reasonable diligence could have obtained it.

17. [37]

    I have misgivings about Singh (No 2) but in the absence of any party challenging its correctness I should not and will not embark on any further consideration of whether it should be departed from. However, it is one thing to not depart from Singh (No 2) and another to extend its reasoning so as to treat “additional … evidence” as synonymous with fresh evidence. In light of my misgivings, I decline to do so. Neither the statutory language nor the objectives of the MAC Act warrant the imposition of an obligation on the proper officer to inquire into whether the party could have reasonably obtained certain information but failed to do so before concluding the information is “additional”. If a proper officer has any concerns that a party unreasonably or deliberately failed to obtain relevant material at the time of the MAS Assessment they can, if the proper officer choses, be addressed at the point of the exercise of the discretion to refer the matter for further assessment.

18. [38]

    It follows that no relevant form of error has been established on the part of the proper officer. The proceedings must be dismissed.

Discretion

1. [39]

   For the sake of completeness I note that Mr Rewell SC also submitted that, even if I accepted Mr Mullin’s proposed construction of s 62, I should nevertheless dismiss the proceedings. He contended that the proper officer’s decision was supportable by reference to material relied on by CIC which on any view was “additional” as it only came into existence after Dr Knoll’s assessment, such as the private investigator’s notes referred to in [18] (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [27] to [29]).

2. [40]

   I reject this contention. The extract from the proper officer’s reasons set out at [19] emphasises the importance of the clinical notes “specifically requested by Assessor Knoll” which is a reference to the clinical notes of Dr Quain and Dr Savic-Urovesic. As I have stated there was an unresolved factual issue before the proper officer as to whether they could have been obtained by CIC with reasonable diligence. On the construction adopted by the proper officer it was not necessary to determine that. If I had concluded that construction was wrong then the proper officer would have been required to address that issue before validly determining CIC’s application under s 62.

Orders

1. [41]

   In relation to costs I will order that the plaintiff pay the first defendant’s costs. If either party seeks to vary that order they can apply to vary it within the time provided for in Uniform Civil Procedure Rule (“UCPR”) 36.16(3A).

2. [42]

   Accordingly the Court orders that:

   1. (1)

      The Plaintiff's summons be dismissed.

   2. (2)

      The Plaintiff pay the First Defendant's costs.