AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales)

1. [1]

   McCOLL JA: The applicant, AAI Limited trading as AAMI (AAMI), seeks leave to appeal and to appeal from a decision of Button J dismissing its summons seeking judicial review of a determination made by the second respondent, the Proper Officer of the first respondent, the State Insurance Regulatory Authority of New South Wales (Authority). [1]

2. [2]

   The third respondent, Ms Vanessa Sproule, lodged an insurance claim with AAMI seeking to recover damages in respect of injuries she said she suffered during a motor vehicle accident on 5 July 2009 involving the driving of a vehicle by her ex-partner, Mr Judd Ball. AAMI was Mr Ball’s motor vehicle insurer. A dispute arose as to the extent to which Ms Sproule’s permanent impairment was caused by the incident.

3. [3]

   A medical assessor appointed by the Authority determined that Ms Sproule had a whole person impairment of 14%. AAMI sought a review of this assessment pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The review application was rejected by the Proper Officer of the Authority’s Medical Assessment Service. On AAMI’s subsequent application for judicial review of the Proper Officer’s decision, the primary judge found that the Proper Officer’s determination did not demonstrate jurisdictional or non-jurisdictional error and dismissed the application. [2]

4. [4]

   The critical issue which arises for determination is whether a medical assessor conducing an assessment of the degree of a claimant’s permanent impairment pursuant to Part 3.4 of the MAC Act is required to determine the legal issue whether the injuries the claimant suffered were caused by a “motor accident” within the meaning of the latter expression in s 3 of the MAC Act.

5. [5]

   AAMI contended that leave to appeal is required on the basis that the judgment did not involve a matter in issue to, or of the value of, $100,000 or more. [3] Ms Sproule did not concede the amount in issue was less than $100,000, but nevertheless opposed a grant of leave to appeal. There being no evidence to establish leave is not required, [4] the Court should proceed on the basis AAMI propounds.

6. [6]

   Accordingly, this is the concurrent hearing of AAMI’s application for leave to appeal and, if leave be granted, the hearing of the appeal. Leave to appeal should be granted as the case raises important questions of law concerning the proper construction of the MAC Act.

7. [7]

   However, for the reasons that follow, I am of the view that the appeal should be dismissed. I would reject AAMI’s submission that the MAC Act required a medical assessor to make a determination as to, or characterise, what elements of an incident involving a motor vehicle during which a person was injured constituted a “motor accident” within the meaning of s 3 of the MAC Act.

Legislative framework

1. [8]

   At the time of Ms Sproule’s alleged motor vehicle accident, the MAC Act relevantly provided as set out below. For convenience, I refer to the relevant provisions in present tense.

2. [9]

   Chapter 1 deals with preliminary matters. Section 3 contains the following definitions:

3. [10]

   Section 3A(1) provides:

4. [11]

   The application of Chapters 3 – 6 in respect of death or injury that results from the use or operation of a motor vehicle is relevantly limited to death or injury that is caused by a motor accident for which the vehicle has motor accident insurance cover. [7]

5. [12]

   The objects of the MAC Act include providing “compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims”. [8] Section 5(2) relevantly provides:

6. [13]

   Chapter 3 of the MAC Act deals with “Motor accident injuries”. It applies “to and in respect of an injury caused by a motor accident occurring after the commencement of this Act” and “whether or not there is a third-party policy in respect of liability for the injury.” [9]

7. [14]

   Part 3.1 deals with preliminary matters. The Authority may issue MAA Medical Guidelines (Medical Guidelines) with respect to, among other matters, the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. [10] The Medical Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Royal Australian College of General Practitioners, the Australian Orthopaedic Association, the para-medical professional associations and other relevant colleges and associations. [11]

8. [15]

   The Authority has issued the following Medical Guidelines pursuant to s 44:

   1. (1)

      the Permanent Impairment Guidelines, issued with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident; [12] and

   2. (2)

      the Medical Assessment Guidelines, issued with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4 of the MAC Act. [13]

9. [16]

   Part 3.4 deals with “Medical assessment” and relevantly provides:

10. [17]

    The Authority is required to establish a unit known as the Motor Accidents Medical Assessment Service, to consist of medical assessors and such officers of the Authority as the Authority determines. [14] The Authority is required to appoint medical practitioners and other suitably qualified persons as medical assessors for the purposes of Pt 3.4. [15]

11. [18]

    Section 58 provides:

12. [19]

    A medical dispute can be referred to the Authority for assessment under Pt 3.4 by either party to the dispute or by a court or claims assessor. The Authority is to arrange for the dispute to be referred to one or more medical assessors. [16]

13. [20]

    Section 61 deals with the status of medical assessments as follows:

14. [21]

    Pursuant to s 62, a matter can be referred for further medical assessment in the following circumstances:

15. [22]

    Section 63 deals with the review of a medical assessment by a review panel and relevantly provides:

16. [23]

    Medical assessments under Pt 3.4 of the MAC Act are subject to relevant provisions of the Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment. [17]

17. [24]

    Chapter 4 of the MAC Act deals with “Motor accident claims”. It applies to and in respect of a “claim relating to a motor accident” which occurred after the MAC Act commenced. [18]

18. [25]

    Part 4.2 deals with “Claims and other preliminary matters.”

19. [26]

    Pursuant to s 70(1), “[u]nless a police officer attended the motor accident, a motor accident that gives rise to a claim must be reported to a police officer by or on behalf of the claimant within 28 days after the motor accident”. A claim must be made within 6 months after the relevant date for the claim. [19]

20. [27]

    Part 4.3 deals with duties with respect to claims. It is the duty of an insurer to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible. [20] In particular, it is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under s 72. [21]

21. [28]

    If the insurer admits liability, it is obliged to make a reasonable offer of settlement to the claimant within the time limits set out in s 82(1). Further, once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of expenses set out in s 83(1), to the extent to which those payments are reasonable and necessary in the circumstances, and are properly verified, and relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates. [22]

22. [29]

    Part 4.4 deals with claims assessment and resolution. It applies to any claim, whether or not the insurer admits or denies liability. [23]

23. [30]

    The Authority is required to establish the Motor Accidents Claims Assessment and Resolution Service (Service), to consist of claims assessors and such other officers of the Authority as the Authority determines. [24] For the purposes of Pt 4.4, claims assessors are persons designated as such by the Authority, who, in its opinion, are suitably qualified to be claims assessors under Pt 4.4. [25] The Minister is to appoint an Australian lawyer as Principal Claims Assessor. [26]

24. [31]

    Division 1A deals with “Document exchange and settlement conference before claims assessment”. It does not, however apply where, relevantly, the claim is exempt from assessment under Pt 4.4 pursuant to s 92(1)(a), or the insurer wholly denies liability in respect of the claim. [27]

25. [32]

    Division 2 deals with the assessment of claims. A claim can be referred to the Authority by the claimant or the insurer, or both, for assessment under Pt 4.4. [28]

26. [33]

    A claimant is not entitled to commence court proceedings against another person in respect of a claim unless the Principal Claims Assessor has issued a certificate in respect of the claim under s 92 (Claims exempt from assessment). [29] A claim is exempt from assessment under Pt 4.4 if it is of a “kind that is exempt under MAA Claims Assessment Guidelines” [30] (Claims Assessment Guidelines) or if a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under Pt 4.4. [31]

27. [34]

    The Claims Assessment Guidelines are made pursuant to s 69(1) which appears in Pt 4.1. Section 69(1) authorises the Authority to issue guidelines for or with respect to procedures for the assessment of claims under Pt 4.4 and associated matters. The Authority is to consult the Insurance Council of Australia Limited, the Council of the Bar Association and the Council of the Law Society about any proposed Claims Assessment Guidelines. [32]

28. [35]

    Clause 8.11 of the Claims Assessment Guidelines provides: [33]

29. [36]

    Section 94 which appears in Pt 4.4, Div 2 relevantly provides

30. [37]

    Section 94A confers comprehensive powers in relation to costs on costs assessors. In making an assessment and specifying damages under s 94 in respect of a claim, a claims assessor may include in the assessment an assessment of the claimant’s costs (including costs for legal services and fees for medico-legal services) in the matter. [35] Matters to which the claims assessor is to have regard in assessing costs include the amount of any written offer of settlement made by either party to the matter and the matters set out in s 363 of the Legal Profession Act 2004 (NSW). [36]

31. [38]

    An assessment under Pt 4.4 of the issue of liability for a claim is not binding on any party to the assessment. [37] However, an assessment under Pt 4.4 of the amount of damages for liability under a claim is binding on the insurer, which is obliged to pay to the claimant the amount of damages specified in the certificate as to the assessment if the insurer accepts liability under the claim, and the claimant accepts the amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. [38]

32. [39]

    Pursuant to s 96, certain disputes in connection with claims, which might broadly be described as of the nature of that which might be the subject of a separate decision pursuant to UCPR Pt 28, may be the subject of assessment. By way of illustration, such an assessment may be made of the question whether, for the purposes of s 34 (Claim against Nominal Defendant where vehicle not identified), there has been due inquiry and search to establish the identity of a motor vehicle. [39]

33. [40]

    Claims assessors have power to give a direction in writing to a party to an assessment under Pt 4.4 requiring the party to produce information [40] and to provide documents and information produced or furnished by a party to an assessment to any other party to the assessment. [41] The Principal Claims Assessor may, in the circumstances referred to in s 102, issue a summons requiring the attendance of a party to an assessment at an assessment conference.

34. [41]

    At the proceedings before a claims assessor (assessment conference), a party to an assessment is entitled to be represented by an Australian legal practitioner or an agent and is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at the assessment conference. The claims assessor must take into account any written submission prepared by an Australian legal practitioner acting for a party to the assessment. If the claims assessor is satisfied that sufficient information has been supplied to him or her in connection with an assessment, the assessor may exercise functions under the MAC Act without holding any assessment conference or other formal hearing. [42]

35. [42]

    Part 4.5 deals with “Court proceedings on claims”. Proceedings in respect of a claim may be taken in any court of competent jurisdiction. [43] Pursuant to s 108, court proceedings against another person in respect of a claim may not be commenced unless either the Principal Claims Assessor has issued a certificate in respect of the claim under s 92, or a claims assessor has issued a certificate in respect of the claim under s 94. Section 109 deals with time limitations on the commencement of court proceedings and is additional to s 108. The insurer of a person against whom a claim is made may give the claimant notice requiring the claimant to commence court proceedings in respect of the claim if the claimant has been entitled to commence the proceedings for a period of at least 6 months, and at least 18 months have elapsed since the date of the motor accident to which the claim relates. [44]

36. [43]

    If significant evidence is adduced in the court proceedings in respect of a claim for which a claims assessor has issued a certificate under s 94, the court is required to adjourn the proceedings until the party who has adduced the evidence has referred the matter for further assessment under Pt 4.4, and a claims assessor has issued a further certificate under s 94 in respect of the claim. [45]

37. [44]

    Chapter 5 of the MAC Act deals with awards of damages. It applies “to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.” [46] It applies to and in respect of the assessment of damages by a claims assessor under Pt 4.4 in the same way as it applies to and in respect of an award of damages by a court. [47]

38. [45]

    A court cannot award damages to a person in respect of a motor accident contrary to Chapter 5. [48]

39. [46]

    Part 5.2 deals with damages for economic loss. Section 125 caps awards for past or future economic loss to the extent that the injured or deceased person’s net weekly earnings would (but for the injury or death) have exceeded $2,500. [49] A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury. [50] Section 127 requires a prescribed discount rate to be used when assessing damages for future economic loss. Section 128 deals with the maximum amount for the provision of certain attendant care services. Section 129 deals with respite care.

40. [47]

    Part 5.3 deals with damages for non-economic loss. No damages may be awarded for non-economic loss unless “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.” [51]

41. [48]

    Section 132 provides:

42. [49]

    Section 133 deals with how the degree of permanent impairment is assessed and provides:

43. [50]

    The MAC Act was intended to provide a new scheme of compulsory third-party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents. [52]

44. [51]

    The Explanatory Memorandum referred to the principal changes effected by the MAC Act which included:

45. [52]

    In the Second Reading Speech to the Bill which became the MAC Act, [53] the Special Minister of State, the Hon John Della Bosca, said:

Permanent Impairment Guidelines

1. [53]

   The Permanent Impairment Guidelines were published on 1 October 2007.

2. [54]

   Clauses 1.7 – 1.9 of the Permanent Impairment Guidelines deal with the causation of injury as follows:

3. [55]

   Clauses 1.33 – 1.35 deal with “Pre-existing impairment” as follows:

4. [56]

   Clause 1.36 provides:

Medical Assessment Guidelines

1. [57]

   Chapter 11 of the Medical Assessment Guidelines deals with assessment procedure. In conducting an assessment a medical assessor, including a member of any review panel, may determine the assessor's own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit. [57]

2. [58]

   The effect of cl 11.1 is that in the event a court referred a matter for further medical assessment pursuant to s 62(1), a medical assessor in inquiring into any issue “in such manner as they think fit”, “could and would take note of the court’s reasons”. [58]

Factual background

1. [59]

   On 7 May 2006 Ms Sproule was involved in a motor vehicle accident. Her insurance claim in respect of that accident was settled on 17 September 2009.

2. [60]

   On 5 July 2009 Ms Sproule sustained injuries in an altercation with her ex-boyfriend, Mr Judd Ball, in an incident which AAMI contends comprised five phases, only some of which involved a motor vehicle. The primary judgment usefully set out a brief summary of the incident which I have annotated to identify four of AAMI’s phases:

3. [61]

   The fifth phase, according to AAMI, occurred entirely outside the vehicle, which was stationary. It involved Mr Ball screaming at Ms Sproule outside a block of units, smashing her mobile phone, grabbing her and attempting to take her into the block of units.

4. [62]

   Ms Sproule lodged a claim in respect of the incident on 1 July 2011.

5. [63]

   On 5 April 2012 Ms Sproule lodged an application for assessment of a permanent impairment dispute by the Authority’s Medical Assessment Service (MAS). She used a form approved by the Authority for use if “[t]here is a dispute between the claimant and the insurer about whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.

6. [64]

   In response to section 6, asking the claimant to list the injuries caused by the accident which were considered to give rise to “an assessable degree of permanent impairment in accordance with the MAA’s Permanent Impairment Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition”, Ms Sproule inserted under the headings “Bodily location of injury”, “Injury type” and “What aspects of this injury are in dispute?”, “Head”, “PTSD” and “Degree of impairment” respectively.

7. [65]

   Ms Sproule attached a number of documents to her application. One required “Personal details”. In response to a question asking whether police action was going to be taken, Ms Sproule inserted “yes”, adding:

8. [66]

   Under the heading “Description of the accident”, Ms Sproule wrote:

9. [67]

   A psychiatrist’s report from a Dr Clark attached to the application described the incident in dramatic terms as involving Ms Sproule as having been “captive” in the car driven by “an aggressive stalker, who had harassed her in the past, and she had an AVO on him.” It diagnosed her as suffering from “Post-traumatic Stress Disorder with ensuing Severe or Major Depression” and assessed her whole person impairment at 24%.

10. [68]

    In a medical certificate attached to Ms Sproule’s Personal Injury Claim Form, completed by a Dr Boddy, who appears to have been in the Emergency Department of Westmead Hospital on the night of the incident, in response to the question “Are the injuries or conditions consistent with the circumstances of the motor accident described to you?” the doctor marked “No” and wrote in brackets “Assault”. The doctor diagnosed and described Ms Sproule’s injury as “Blunt trauma [secondary] to alleged assault”.

11. [69]

    In its reply, AAMI disputed the information Ms Sproule had given in response to section 6 of her application for assessment of a permanent impairment dispute. It identified, relevantly, a dispute relating to the degree of impairment in respect of Ms Sproule’s assertion she suffered PTSD. In addition in the column asking what aspects of the injury were in dispute, AAMI inserted the word “causation”. Finally, AAMI inserted an entry across three columns of what appeared to be a pro forma document stating:

12. [70]

    AAMI attached submissions to its reply which noted Ms Sproule only sought to have her “psychological injuries assessed” and sought also to have her “alleged physical injuries” assessed. The submissions set out included the following:

13. [71]

    In paragraphs 5 – 7, the submissions described various parts of the 5 July incident, including Mr Ball pushing Ms Sproule out of the car, hitting her on her head and reversing the vehicle towards her. The gravamen of its submission that there had not been a “motor accident” appeared to be because there were no contemporaneous reports that she had been “hit by a motor vehicle” or “involved in an accident”.

14. [72]

    AAMI’s submissions then referred to a number of different accounts it asserted Ms Sproule had given in relation to the events of 5 July 2009. At the conclusion of that recitation, it stated:

15. [73]

    AAMI attached to its reply two statements Ms Sproule made to the police concerning the incident and the Police Report about it.

Medical assessment certificate

1. [74]

   On 15 August 2012 a medical assessor, Dr Sharon Reutens, issued a certificate under Part 3.4 of the MAC Act, which stated:

2. [75]

   It is apparent from Dr Reutens’ reasons that she had been provided with Ms Sproule’s claim and supporting documents and AAMI’s reply and supporting documents. Dr Reutens also recorded that Ms Sproule attended her for the purposes of the assessment and resolution of the following “medical disputes in accordance with Part 3.4” of the MAC Act:

3. [76]

   Dr Reutens’ reasons set out Ms Sproule’s pre-accident medical history, pre-accident psychiatric history (referring in this respect to the 2006 motor vehicle accident), Ms Sproule’s psychosocial history, her personal history and pre-accident functioning. They then addressed the “history of the motor accident” and recounted Ms Sproule’s version of the circumstances in which she was injured. This version included the five phases AAMI identifies, albeit that Dr Reutens did not so describe them. The reasons also set out the history of Ms Sproule’s symptoms and treatment following the incident, and the details of injuries or conditions sustained after the “motor accident”.

4. [77]

   Under the heading “Review of Documentation”, Dr Reutens noted AAMI’s submissions concerning the various documents which made “no mention of [Ms Sproule] being hit by a motor vehicle or being involved in an accident” and, too, a police report dated 5 July 2009 which “noted that a witness heard the claimant screaming ‘help me’ and observed a grey sports utility vehicle reverse towards the female, mount the [kerb] and continue to reverse towards [Ms Sproule, who] jumped over the witness’ fence to avoid being hit by the reversing vehicle.”

5. [78]

   Under the heading “Conclusions” and the sub-heading “Diagnosis and Causation”, Dr Reutens summarised the matters to which she had referred earlier in her reasons, including Ms Sproule’s history and stated:

6. [79]

   Under that part of section 7 of her reasons headed “Determinations”, and that part dealing with “Apportionment”, Dr Reutens noted that “[t]here was a pre-existing impairment in the form of a major depressive episode.” It was common ground that that was related to the 2006 motor vehicle accident. Dr Reutens noted that treatment had made “a moderate difference to [Ms Sproule’s] impairment”, a conclusion which required an upward adjustment to allow for the percentage improvement in order to assess Ms Sproule’s permanent impairment relative to the position she would have been in if the tort had not been committed. [60]

7. [80]

   Dr Reutens set out the following in a table at the conclusion of her reasons:

8. [81]

   As the primary judge observed: [62]

Review application

1. [82]

   On 18 September 2012 AAMI sought a review of Dr Reutens’ assessment pursuant to the MAC Act, s 63. It identified the relevant error in her certificate as being found in “Paragraph 4, page 17”. AAMI contended, and Ms Sproule did not dispute, that that was an incorrect reference to the paragraph of the medical assessor’s reasons set out above. [63]

2. [83]

   AAMI identified Dr Reutens’ error as her failure “to distinguish and apportion between the various assaults alleged by the claimant against Mr Ball and the effect of what she describes as ‘The motor vehicle accident (the car reversing into her) …’”.

3. [84]

   In the section of the application requiring identification of how the error was “material to the outcome of the assessment”, the application contended that Dr Reutens:

4. [85]

   The application then detailed various matters set out in Dr Reutens’ reasons in which Ms Sproule described the incident in which she was injured, including those involving Mr Ball assaulting her, and continued:

5. [86]

   On 22 November 2012 the Proper Officer dismissed AAMI’s application for review of the medical assessment. He referred (at [4]) to s 63 of the MAC Act as requiring the review application to be accepted if he was satisfied “there is reasonable cause to suspect that the medical assessment is incorrect in a material respect”. He identified one of the matters of which AAMI complained as being Dr Reutens’ failure to disentangle the consequences of the non-motor accident assaults and wrote:

6. [87]

   Accordingly, the Proper Officer concluded he was not satisfied that there was “reasonable cause to suspect that the medical assessment [was] incorrect in a material respect.” He dismissed the review application.

7. [88]

   In December 2012, AAMI’s legal representatives applied pursuant to the MAC Act, s 92 to have Ms Sproule’s claim exempted from the claims assessment process on two grounds. First, that “[t]he fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is denied by the insurer in its written notice issued in accordance with section 81” and, secondly, that “[t]he insurer has declined to indemnify the owner or driver of the motor vehicle against which the claim is made under the third-party policy provided for in section 10 of the Act.” Each of those bases for the exemption application reflected respectively clause 8.11.1 and clause 8.11.5 of the Claims Assessment Guidelines set out earlier in these reasons. [64] Ms Sproule accepted that the claim should be exempt from assessment for the reasons given by AAMI. On 31 January 2013 the Authority issued a certificate pursuant to s 92(1)(a) of the MAC Act exempting Ms Sproule’s claim from assessment.

8. [89]

   Ms Sproule filed a statement of claim seeking to recover damages in relation to the incident in the District Court of New South Wales on 2 April 2013.

9. [90]

   On 13 June 2013 AAMI filed a motion in the District Court proceedings seeking to be joined as a party in order to argue that it had no obligation to indemnify the defendant and an order that the proceedings be dismissed pursuant to the MAC Act, s 73(5).

10. [91]

    On 13 March 2014 AAMI filed a summons in the Supreme Court seeking an order in the nature of certiorari on the basis of jurisdictional error or error of law on the face of the record. AAMI sought to challenge the Proper Officer’s refusal to refer Ms Sproule’s permanent impairment assessment for review.

Primary judgment

1. [92]

   The primary judge identified the fundamental question requiring determination on the judicial review application as follows:

2. [93]

   AAMI contended that had the medical assessor undertaken her assessment properly, and excluded injuries that arose from acts that were not motor accidents, Ms Sproule’s degree of permanent impairment would in all likelihood not have exceeded 10%, thereby (almost conclusively) foreclosing damages for non-economic loss, by way of the operation of the MAC Act. [66]

3. [94]

   The primary judge accepted a number of matters. [67] First, that the Proper Officer played the role of gatekeeper, not ultimate decision maker, and that, in that sense, the test for review of a medical assessment should not be construed as being a strict one. Secondly, that the test for the Proper Officer was not whether he was affirmatively satisfied that the medical assessment was incorrect in a material respect, having regard to the particulars set out in AAMI’s application. Rather, the question was whether the Proper Officer had reasonable cause to suspect that state of affairs. [68] Thirdly, that “the clear words of s 58(1)(d) confer upon a medical assessor an obligation to make an assessment of causation”. [69]

4. [95]

   However, his Honour held that the Proper Officer’s determination did not demonstrate an error of law, whether jurisdictional or non-jurisdictional, for seven reasons:

5. [96]

   Accordingly, the primary judge concluded that neither an analysis of the MAC Act, nor a broad analysis of the decision of the Proper Officer, nor a detailed analysis of the reasons given by the Proper Officer, established an error of law. [71]

6. [97]

   Alternatively, his Honour held that even if jurisdictional error or error of law on the face of the record were established, as a matter of discretion, relief would be declined because AAMI had “a far more convenient and appropriate way” of challenging Dr Reutens’ assessment: AAMI could persuade a trial judge to refer the matter for further medical assessment pursuant to s 62(1)(b) of the MAC Act. [72]

Issues on appeal

1. [98]

   AAMI’s draft notice of appeal, omitting the lengthy particulars, submits that the primary judge erred in the following respects:

   1. (1)

      Failing to hold that the Proper Officer fell into jurisdictional error in determining that he was not satisfied that there was reasonable cause to suspect that Dr Reutens’ assessment was incorrect in a material respect pursuant to s 63(3) of the MAC Act.

   2. (2)

      Failing to hold that the Proper Officer fell into jurisdictional error in making his decision by failing to be satisfied that there was reasonable cause to suspect that Dr Reutens’ assessment was incorrect in the material respect of non-compliance with the requirement under clauses 1.7 – 1.9 and 1.33 – 1.36 of the Permanent Impairment Guidelines to determine whether Ms Sproule’s injury was solely caused, or materially contributed to, by a “motor accident”.

   3. (3)

      In the alternative, failing to hold that there was a non-jurisdictional error of law on the face of the record of the Proper Officer’s decision.

   4. (4)

      Holding that even if jurisdictional error or error of law on the face of the record were established, the Court in its discretion declined to grant relief on account of the availability to AAMI of a more convenient and appropriate relief.

AAMI’s submissions

1. [99]

   AAMI’s fundamental contention is that Assessor Reutens failed to exercise her function of assessing whether the degree of Ms Sproule’s permanent impairment “as a result of the injury caused by the motor accident” was greater than 10% within s 58(1)(d) of the MAC Act because she failed to determine which, if any, of the five phases of the 5 July 2009 incident constituted a “motor accident” as defined in s 3 of the MAC Act.

2. [100]

   AAMI submits that s 58(1)(d) raises two inquiries into causation: the medical assessor must identify the “permanent impairment” that is a result of the “injury” that is “caused by” the “motor accident”. Accordingly, Assessor Reutens had to determine the question whether Ms Sproule’s current psychological condition had, as its very substantial cause, the particular phases that were the motor accident, as she understood it.

3. [101]

   AAMI submits that s 63(3) of the MAC Act posed a low threshold to satisfy the Proper Officer that there should be a referral to a review panel. It was sufficient that the Proper Officer “identify possible error”, rather than make a substantive assessment or calculation.

4. [102]

   AAMI contends the legislative intention is that review by a panel should be available where there is a possibility that a medical assessment is incorrect in a material respect. AAMI argues a proper assessment has not been made if an important fact has been ignored, or the assessment has not been properly undertaken and the statutory right of a party subverted. In such circumstances the Proper Officer should reasonably be satisfied that there is cause to suspect that the assessment is incorrect in a material respect.

5. [103]

   AAMI submits, further, that the primary judge erred in not recognising the Proper Officer’s error. In particular, AAMI submits that the primary judge erred in holding that, as a matter of law, a medical assessor is not required to determine whether an overarching incident (or particular sub-incidents within it) constitutes a “motor accident” as defined in s 3 of the MAC Act. AAMI submits that his Honour’s conclusion was inconsistent with s 58(1)(d), which requires a medical assessor to determine causation.

6. [104]

   Accordingly, AAMI submits that the primary judge erred in failing to hold that the Proper Officer “proceeded upon a legally erroneous assumption as to the functions of the assessor”, thereby falling into jurisdictional error in asking himself the wrong question as to whether Dr Reutens’ assessment was incorrect in a material respect. Unless the assessor identified whether there was (or what was) the “motor accident”, she could not determine whether the injury was “caused by a motor accident” in accordance with s 58(1)(d). AAMI submits that exercise reposed in the medical assessor, even though determining that issue may require resolution of complex factual issues of a non-medical nature.

7. [105]

   AAMI’s remaining submissions in respect of Ground 1 examine closely, and seek to rebut, each of the primary judge’s seven reasons for dismissing the judicial review application.

8. [106]

   As to Ground 2, AAMI submits that the Proper Officer erred in not suspecting incorrectness in a material respect in Dr Reutens’ assessment in circumstances where that assessment failed to apply clauses 1.7 – 1.9 of the Permanent Impairment Guidelines. AAMI argues that to the extent its complaint was about failure to apportion internally, that was a complaint about causation and, accordingly, a failure to apply clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.

9. [107]

   AAMI submits that if the errors of which Grounds 1 and 2 complain were not jurisdictional errors, they were legal errors that appeared on the face of the Proper Officer’s reasons.

10. [108]

    AAMI submits the primary judge erred in finding that referral by a court under s 62(1)(b) for further assessment was a “more convenient and satisfactory remedy” entitling the Court to decline relief as a matter of discretion. [73] It contended that this was not an avenue for review of the Proper Officer’s decision. When the Proper Officer did not allow a review to proceed, the medical assessor’s conclusive certificate would apply in court proceedings, “exposing the insurer to the possibility of an award of damages for non-economic loss.” Referral by a court did not provide an avenue for review of the certificate’s validity. Furthermore, a respondent in court proceedings has no entitlement to elect that such a referral occur, nor does s 62(1)(b) enable a party to contend that a certificate is infected with legal error. A referral by the court is entirely discretionary.

11. [109]

    Under these circumstances, AAMI submits that the possibility that a referral might be made under s 62(1)(b) did not constitute an equally beneficial and convenient avenue of review. Accordingly, his Honour exercised the discretion to refuse relief erroneously in a manner which would attract appellate review.

Ms Sproule’s submissions

1. [110]

   Ms Sproule submitted that the Proper Officer took the view that whether or not an incident constitutes a “motor accident” is not a matter for the medical assessor.

2. [111]

   Ms Sproule also contended that the Proper Officer adverted to the practical difficulty with apportioning between those elements which were a “motor accident” and those which were not arising from the prescriptive terms of the Permanent Impairment Guidelines, which required “objective evidence of a pre-existing symptomatic permanent impairment or a pre-existing psychiatric diagnosis or condition”. [74] Ms Sproule argued that material meeting those descriptions did not and does not exist.

3. [112]

   Accordingly, even if Dr Reutens had made a finding as to which elements of the 5 July incident constituted a “motor accident”, she could not have apportioned Ms Sproule’s psychiatric harm between those elements which were a “motor accident” and those which were not because she could not identify either objective evidence of a pre-existing symptomatic permanent impairment, or a pre-existing psychiatric diagnosis or condition.

4. [113]

   Ms Sproule submits that cll 1.7 – 1.9 of the Permanent Impairment Guidelines relate to what has been caused by “the motor accident”. She argues that use of the definite article precludes conferral by the Guidelines of a wide ranging jurisdiction to inquire into the circumstances of injury so as to identify “a motor accident”. Rather, it is the medical assessor’s role to determine the degree of permanent impairment arising from an event which the scheme presumes constituted the motor accident.

5. [114]

   Secondly, Ms Sproule submits that a dispute between an insurer and a claimant as to whether a series of elements of a single violent incident were or were not a “motor accident” is not a “medical dispute” within the terms of s 58, MAC Act.

6. [115]

   Ms Sproule contends that the matters enumerated in s 58(1)(a), (b) and (d) do not include disputes as to whether an incident is a motor accident, let alone a dispute as to whether some elements within an incident are, or are not, motor accidents. She contends this is hardly surprising since neither would be a “medical assessment” in the ordinary sense of those words. Accordingly, she argues the question AAMI would have had Dr Reutens answer, and the review panel review, did not fall within matters which may be referred for medical assessment.

7. [116]

   In this context, Ms Sproule submits that when s 58(1)(d) speaks of the motor accident it is not doing so in such a way as to admit of controversy as to what constitutes the motor accident. Rather, the section proceeds on the basis that the motor accident has been identified and the disagreement giving rise to a “medical assessment matter” is, relevantly, as to what, if any, degree of permanent impairment arises from that motor accident.

8. [117]

   Thirdly, Ms Sproule submitted that, as a matter of fact, the referral for assessment contained in the “Dispute Details” in Dr Reutens’ reasons did not raise any issue as to what constituted the relevant “motor accident”. Rather, they merely identified the medical dispute as “whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%”. It was not suggested there was any error in framing the “Dispute Details”.

9. [118]

   Fourthly, Ms Sproule submits that it would be unusual if a medical assessor’s role was to answer questions of law including whether a set of facts meets the statutory test for a “motor accident” within the MAC Act and, more particularly, to analyse the legal significance of the elements of a single violent incident so as to determine which, if any, of those elements met the statutory definition of a “motor accident”. She contends that question is one of law and involves no medical expertise at all. Even if, as AAMI contends, it would be relatively easy to discern which of the elements constitutes a motor accident, Ms Sproule submits that AAMI failed to identify the source of power of a medical assessor to undertake such an investigation.

10. [119]

    Fifthly, Ms Sproule submits that it is only once a “motor accident” has been identified, that questions of causation and apportionment arise. She argues that the question whether the relevant incident (or elements of that incident) meets the statutory description of a “motor accident” is not a question of causation. Instead, it requires an inquiry as to whether certain facts meet the statutory criteria imposed by s 3 and s 3A of the MAC Act.

Consideration

1. [120]

   The focus of AAMI’s submissions is on the concept of a “medical assessment matter” in s 58. However that provision cannot be considered in isolation. Resolution of the question raised on appeal involves a close consideration of the text of the MAC Act, the context, including the general purpose and policy of s 58, and, in particular, the mischief it is seeking to remedy. [75]

2. [121]

   The primary object of the task of statutory construction is to construe s 58(1)(d) so that it is consistent with the language and purpose of all the provisions of the statute. [76] As the plurality emphasised in Project Blue Sky “‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’ Thus, the process of construction must always begin by examining the context of the provision that is being construed.” [77]

3. [122]

   The next two paragraphs of the plurality’s reasons in Project Blue Sky should be set out in full:

4. [123]

   In my view it is apparent when s 58(1)(d) is construed by applying the principles of statutory construction to which I have referred, that the MAC Act did not require a medical assessor to make a determination as to what elements of an incident involving a motor vehicle during which a person was injured was a “motor accident” within the meaning of s 3 of the MAC Act.

5. [124]

   The MAC Act does not provide “a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle”. [78] Rather, the MAC Act establishes a system whereby claims for compensation arising from motor accidents are not determined solely in the courts, and the quantum of compensation is not ascertained (whether in court or out of court) solely in accordance with common law principles. [79]

6. [125]

   When the MAC Act is carefully construed it can be seen that, despite the order in which some of its provisions appear (in particular those in Pt 3.4 dealing with medical assessment), its scheme reflects largely the logic of a common law claim for damages arising from a motor accident.

7. [126]

   Generally, issues of liability and damages are dealt with either by claims assessment by claims assessors pursuant to Ch 4, Pt 4.4 or by judges in court proceedings pursuant to Pt 4.5. [80]

8. [127]

   Chapter 5 deals with awards of damages. It sets out provisions that alter the common law concerning damages for personal injury in various specific ways. [81] Nevertheless, awards of damages are dealt with by a court applying Ch 5. While a claims assessor exercising the Pt 4.4 functions can assess the “amount of damages that a court would be likely to award”, [82] it is apparent from both the terms of s 94(1)(b) and s 95(2) that such an assessment is not an award of damages. This conclusion is reinforced by the remonstration in s 123(1) that “[a] court cannot award damages to a person in respect of a motor accident contrary to” Ch 5. No similar warning applies to a claims assessor.

9. [128]

   Finally, Ch 3 of the MAC Act establishes a special regime for the medical assessment of injuries sustained in motor accidents. [83] Of the heads of damages with which Ch 5 deals, only that dealing with non-economic loss expressly comes within the purview of that regime. That is because, by reason of Pt 5.3, what might be described as a micro-regime is established dealing with that head of damages. Under that regime, even if court proceedings are being heard, any dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss must be assessed by a medical assessor under Pt 3.4. [84]

10. [129]

    The governing provisions of each of Chapters 3, 4 and 5 variously express the ambit of each chapter by reference to a descriptor which encompasses the concepts of injury and a causal relationship to a motor accident. Thus, Ch 3 “applies to and in respect of an injury caused by a motor accident”, Ch 4 “applies to and in respect of a claim relating to a motor accident” and Ch 5 “applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.” [85]

11. [130]

    Expressions such as “in relation to” and “in respect of” are relational terms which may denote relationships which are causal or temporal or relationships of similarity or difference. They may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. [86]

12. [131]

    In the present context, it can hardly be gainsaid that those governing provisions are not intended to enlarge the ambit of the MAC Act beyond that for which s 3A provides. Section 3A is the “governing provision for the application of the [MAC] Act (apart from Part 1.2) to a claim for damages by a person injured in a motor accident”. [87] It was inserted in the MAC Act “to clarify that the Act applies to death or injury caused in an accident occurring during the driving of the vehicle, a collision or the vehicle running out of control and not to an injury that arises gradually from a series of incidents”. [88] That causation inquiry is to be determined in accordance with s 5D and s 5E of the Civil Liability Act 2002 (NSW), Pt 1A, Divs 1 – 4 and 8 of which apply to motor accidents. [89]

13. [132]

    There is, of course, no liability in negligence without damage. [90] Accordingly the s 3A gateway is predicated on there being death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused by a motor accident. The inquiry requires consideration of the s 3 definition of “motor accident”. In order to fall within s 3A, it is necessary to identify a sufficient connection between the injuries and the driving fault. Driving which is merely the occasion for the infliction of injuries will not suffice even if it is contemporaneous with the activity which inflicts the injury. [91]

14. [133]

    The question whether the plaintiff was injured in a “motor accident” is a liability issue. It is a larger issue than that relating to recovery of one head of damages, namely that for non-economic loss. In the ordinary course one would expect a liability issue would be resolved before the question whether the plaintiff qualifies for any damages arises. Such resolution would either be by an insurer’s admission, a claims assessment or a court determination. However, on AAMI’s submission, this is the issue a medical assessor has to determine, and, presumably, include in the s 61 certificate, which is then “conclusive evidence” in either the claims assessment or the court proceedings. [92] To state that proposition is to reveal its inherent implausibility.

15. [134]

    Other contextual matters indicate that it is improbable that the legislature intended medical assessors to determine the issue of what constitutes a “motor accident”.

16. [135]

    First, a claim is exempt from assessment under Pt 4.4 pursuant to s 92(1)(a) if it is of a kind that is exempt under the Claims Assessment Guidelines or the regulations. [93] A claim is exempt if “the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle is denied by the insurer of that vehicle in its written notice issued in accordance with section 81” or if the insurer declines to indemnify the owner or driver. [94] The words in cl 8.11.1 describe the fundamental liability issue, the basis upon which a person is entitled to claim under the MAC Act. [95] The basis upon which an insurer might decline to indemnify the owner or driver pursuant to cl 8.11.5 of the Claims Assessment Guidelines was not explored. However, the application of Chapters 3 – 6 in respect of death or injury that results from the use or operation of a motor vehicle is limited to death or injury that is caused by a motor accident for which the vehicle has motor accident insurance cover. [96] Presumably an insurer will decline indemnity if it asserts that the claim relates to an incident which was not a “motor accident” and therefore not covered by motor accident insurance. Once again, that goes to a question of liability. Thus, either basis of exemption removes the issue of whether an incident in which a person was injured or killed constituted a “motor accident” from the purview of a medical assessor.

17. [136]

    Secondly, medical assessors are only appointed for the purposes of Pt 3.4. Their function is to resolve the medical disputes referred to in s 58 which may be referred to them by either party to the dispute, a court or a claims assessor. [97] They do not play a role in determining issues arising under Ch 4 or Ch 5, save to the extent a certificate such an assessor issues is “conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.” [98]

18. [137]

    As Giles JA observed in McKee v Allianz Australia Insurance Ltd, [99] “[a] key concept in Pt 3.4 is that of a matter. A medical assessment is an assessment of a medical disagreement about any of the ‘matters’ described in s 58. All the matters are medical in nature; there is possible enlargement so far as the degree of impairment of earning capacity requires knowledge of workplace requirements, but medical professionals frequently express opinions on impairment of earning capacity.”

19. [138]

    Medical disputes are determined in the first instance by a medical assessor or, on review, by a “review panel of medical assessors”. [100] The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise. [101] In McKee, [102] Giles JA expressed the view that although expressed in the context of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), this observation in Siddik was apposite to describe the review panel carrying out functions under s 63 of the MAC Act. It is equally apposite to first instance medical assessors.

20. [139]

    It might be accepted that both sub-sections 58(1)(b) and (d) refer to “the motor accident”. In the first context, the issue is whether any treatment referred to in s 58(1)(a) “relates to the injury caused by the motor accident”. In the second context, the question is whether “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”. In each case, the question posed relates to an issue which can only arise if the issue of liability has been determined in the plaintiff’s favour. As Ms Sproule submitted, the use of the definite article supports the conclusion that there is an identified “motor accident” and that the task of the medical assessor is to determine the causation issue each sub-section poses by reference to that “motor accident”.

21. [140]

    The conclusion I have reached is also supported by the extrinsic material to which I have earlier referred, [103] no part of which suggested that the process of medical assessment would concern the determination of liability issues.

Mills: its ancestry and progeny

1. [141]

   AAMI’s submission that it was for the medical assessor to determine whether the 5 July incident was a motor accident within s 3 of the MAC Act is founded on a line of authority, principally Motor Accidents Authority of NSW v Mills. [104] In my view those authorities do not support AAMI’s submission.

2. [142]

   The issue in Mills was whether the power in s 62(1) of the MAC Act to refer again for medical assessment under Pt 3.4 of Ch 3 could be exercised to require assessment only of the degree of permanent impairment, excluding whether the permanent impairment was as a result of an injury caused by the relevant motor accident. [105]

3. [143]

   The issue arose in the following circumstances. Mr Mills was injured when a motor vehicle he was driving ran off the Wiseman’s Ferry Road and came to rest in bushland. He brought proceedings in the District Court against the Nominal Defendant, claiming damages for injuries said to have been suffered in the accident. He alleged that he had run off the road when forced to take action to avoid a motor vehicle travelling in the opposite direction on the incorrect side of the road, and that after due inquiry and search the other motor vehicle could not be identified. [106] The trial judge held that the accident had occurred as Mr Mills claimed, that negligence of the driver of the other vehicle had caused it, and that there had been due inquiry and search. He concluded “that the Nominal Defendant is liable for the injury suffered by the plaintiff”. [107] His Honour also held that Mr Mills’ back injury was causally related to the motor vehicle accident. [108] His Honour made an order referring for further medical assessment pursuant to MAC Act, s 62 “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”. [109]

4. [144]

   In a passage not essential to his conclusion, dealing with “[t]he extent of conclusiveness”, Giles JA (with whom Tobias JA and Handley AJA agreed) observed that “[t]he statement of the threshold in [MAC Act,] s 131 contained the composite phrase, ‘the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident’, with the two elements of degree of permanent impairment and of causation of the degree of permanent impairment. The same phrase with its two elements was [also] found in ss 131 [sic], 133(1) and 58(1)(d).” [110]

5. [145]

   Mills was heard in March 2010. At the time the accident in Mills occurred, s 61 was in a different form to that which applied as at 5 July 2009. Section 61(2) addressed the issue of conclusivity of a medical assessor’s certificate by reference to a list of matters referred to in s 58(1), including “whether the degree of permanent impairment of the injured person is greater than 10%”. Section 61(3), which had been repealed by 5 July 2009, provided “[a]ny such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.” There was no sub-section (10) or (11).

6. [146]

   After a discussion about the fact that provisions in Pt 3.4 such as the then s 61(2)(a) used a shorter phrase, “the degree of permanent impairment”, without express reference to the element of causation, Giles JA observed that “[t]hat element must, however, be read into the use of the shorter phrase.” [111] This was because:

7. [147]

   Giles JA then observed that “[s]ection 62(2) [sic, s 61(2)] now refers to a certificate ‘as to a medical assessment matter’ and this conclusion is clear on the terms of the amended Act … [t]he conclusiveness of the medical assessment, as certified, included the medical assessor’s finding that the permanent impairment was or was not as a result of the injury caused by the motor accident.” [112]

8. [148]

   In reaching his conclusion, Giles JA observed that “[t]here was strong emphasis in the [MAC Act] on leaving for assessment under Pt 3.4 whether there was the degree of permanent impairment necessary for an award of damages for non-economic loss, meaning permanent impairment as a result of the injury caused by the motor accident”, a conclusion his Honour found was reinforced by the legislative history to which I have referred. [113] His Honour held that the trial judge had exceeded the power conferred by s 62 in concluding that his earlier finding that Mr Mills’ back injury was caused by the motor accident, [114] meant that “whatever degree of permanent impairment would be assessed was caused by the motor accident.” [115] Rather, the reference in s 62(1) to referral again of “a matter referred for assessment under this Part” picked up “the elements of causation and of degree of permanent impairment and … [i]n accordance with the scheme both elements were for the medical assessor, and the court could not decide them.” The judge’s finding made for the purpose of deciding that there should be referral again under s 62(1) did not bind the parties in the assessment, and he could not make an order binding on the parties to prevent the medical assessor determining the issue of causation. [116] His Honour concluded that “the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) was unequivocally for the medical assessor, including the element of causation.” [117] His Honour referred, as authority for that proposition, to Pham v Shui [118] and Ackling. [119]

9. [149]

   AAMI relies on the use in Mills, and authorities such as Rodger v De Gelder, [120] of the composite phrase “degree of permanent impairment as a result of the injury caused by the motor accident” to support its submission that it is for a medical assessor to determine whether an incident falls within the statutory definition of “motor accident” in s 3. However, the question whether an incident in which a claimant was injured fell within the statutory definition did not arise in either Mills or in any of the authorities to which AAMI refers.

10. [150]

    In Mills, there was no issue that a “motor accident” had occurred. Rather, as I have said, the issue on liability at trial was whether the motor accident was caused by an unidentified vehicle so that proceedings could be brought against the Nominal Defendant, an issue determined in the plaintiff’s favour before the issue of referral to the medical assessor arose.

11. [151]

    In Rodger, [121] the plaintiff, Mr De Gelder, was injured in a motor vehicle accident when a vehicle driven by Mr Rodger collided with the rear of his stationary vehicle. There was no issue that there had been a “motor accident” within the statutory definition. The issue was as to the degree of permanent impairment suffered by Mr De Gelder in the accident. [122]

12. [152]

    In Pham, the plaintiff, who was standing on the footpath, was injured when he was struck by the defendant’s car as the defendant was driving from a driveway onto the footpath. The driver did not see the plaintiff before his car collided with him. [123] Once again, there was no issue that there had been a “motor accident” within the statutory definition. The issues on appeal concerned contributory negligence and damages. The latter issue turned on the ambit of the conclusionary effect of certificates given under s 61 of the MAC Act and whether medical assessments for the plaintiff were wrongly excluded.

13. [153]

    At the time Pham was decided, s 61(2) was in the same form as it was in Mills and s 61(3), which had been repealed by 5 July 2009, was still in force. [124] The trial judge held that the certificates and accompanying reasons were conclusive evidence as to the degree of permanent impairment as a result of the injury caused in the motor accident and the nature of the injuries “sustained by the plaintiff in the accident”. [125] Having reached that conclusion, the trial judge held that evidence contradicting the matters dealt with in the certificates and accompanying reasons was inadmissible for all purposes, including for the purpose of establishing economic loss and, accordingly, on this basis rejected a body of expert evidence the plaintiff sought to tender on the latter issue. [126]

14. [154]

    On appeal, the plaintiff contended the certificates issued by the medical assessor “were no more than the gateway to damages for non-economic loss under s 131”. [127] While the plaintiff conceded that evidence could not contradict the certificates in relation to non-economic loss, he argued the certificates should not have been treated as conclusionary against any compensation for his economic loss claim for domestic care. [128]

15. [155]

    Santow JA held that s 61(2)(a) meant that the certificate’s conclusivity applied “only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%”. [129] In his Honour’s view, that conclusion was reinforced by the structure of MAC Act, under which the “regime in Pt 5.2 is clearly a separate and distinct regime concerned with economic loss [and] operates as a parallel universe to Pt 5.3 dealing with damages for non-economic loss.” [130] Accordingly, the certificate was conclusive as to the medical causation of the relevant “injury”, but not as to matters outside of the strict limits of s 61(2). [131]

16. [156]

    In Ackling, the plaintiff ruptured his L5/S1 disc in 2003 when he was thrown off the rear of the tray of a truck being driven across a paddock onto the ground. About a year later he exacerbated the injury while doing road repair work. After the exacerbating incident, he was diagnosed with a psychiatric injury which he claimed was caused by the motor accident. There was a dispute as to the degree of permanent impairment the plaintiff suffered as a result of his psychiatric injury which was referred to a medical assessor. The assessor’s certificate stated “NIL diagnose psychiatric disorder related to the motor accident.” [132] A review panel affirmed that conclusion, determining that the first accident was not a cause of, or a significant contributing factor to, the plaintiff’s psychiatric disorder. [133]

17. [157]

    The plaintiff commenced judicial review proceedings pursuant to s 69 of the Supreme Court Act 1970 (NSW), seeking orders setting aside the certificates and statements of reasons of the medical assessor and the review panel. It was common ground that each decision-maker had erred in law in the test of causation. [134] The principal issue was whether it was within the jurisdiction of the review panel to determine whether the relevant impairment of the plaintiff was as a result of an injury “caused by the [2003] motor accident”. [135] However, as in other cases, the use of the composite phrase conceals rather than reveals the true issue. There was no issue that the 2003 accident constituted a “motor accident” within the statutory definition. The issue was whether s 58(1)(d) empowered a medical assessor to determine causation. [136]

18. [158]

    In Spratt v Perilya Broken Hill Ltd; Spratt v Rowe, [137] Leeming JA said, referring to Rodger, that the proposition “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” should be “regarded as settled law, [and] flows directly from the text of s 58(1)(d) and s 131”. That statement may initially be thought to give AAMI some support. However as is apparent from the foregoing analysis and his Honour’s consideration of Mills, that is a false hope. Rather, as his Honour explained in Spratt, [138] “the ratio of Mills is that the [MAC Act] leaves, for the exclusive and conclusive determination by medical assessors, questions of permanent impairment and causation”. As is plain, his Honour did not consider that Mills held that s 58(1)(d) left the issue of what constitutes, or what can be or characterised as, a “motor accident” for the medical assessor.

Reprise: the medical assessment

1. [159]

   It was not, accordingly, incumbent upon Assessor Reutens to determine whether the series of incidents AAMI contended occurred on 5 July 2009 and led to Ms Sproule’s injuries constituted a “motor accident” within s 3 of the MAC Act. That was a question which had to be determined by a court, as AAMI seemed to accept at the time it had Ms Sproule’s matter exempted from the assessment process pursuant to s 92(1)(a).

2. [160]

   A matter should not be referred to a medical assessor where there is any doubt about the issue of whether the events which occurred fell within the statutory definition. That liability issue should be determined before a medical assessor is asked to determine the s 58(1)(d), or, it might be observed, the s 58(1)(b), issue. The medical assessor can then “take note of the court’s reasons”. [139]

3. [161]

   If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a “motor accident”. [140]

4. [162]

   AAMI’s submissions on the s 58(1)(d) referral which formed part of the material before Assessor Reutens raised the issue “whether the claimant was injured as a result of a motor accident or as a result of the assaults perpetrated by Judd Ball”. [141] To the extent the submissions sought to break the 5 July incident down, they referred expressly to that part in which Mr Ball reversed the vehicle towards Ms Sproule. AAMI accepted in this Court that that part of the incident constitutes a “motor accident”.

5. [163]

   AAMI did not ask Assessor Reutens merely to make findings in the manner I have indicated. Notwithstanding that omission, in my view Assessor Reutens undertook her task with a view squarely to determine whether either the assaults or the “motor accident” which she described as “the car reversing into [Ms Sproule]” caused her PTSD, major depression and panic attacks. She expressly made her causation finding by reference to “the accident” which she found to be a “substantial cause” of Ms Sproule’s mental state. In reaching that conclusion, it is apparent Assessor Reutens applied the instructions on causation in the Permanent Impairment Guidelines which instructed that “[t]he motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible”.

Permanent Impairment Guidelines and causation

1. [164]

   AAMI relied on the fact that the cll 1.7 – 1.9 of the Permanent Impairment Guidelines informed the manner in which medical assessors determined issues of causation, including by directing their attention to common law principles of causation, to support its submission that as a medical assessor was required to apply legal principles, it could be taken that determining whether an incident constituted a “motor accident” was within the purview of a medical assessment matter in s 58(1)(d).

2. [165]

   This submission faces several difficulties, of which the most obvious one is that cll 1.7 – 1.9 of the Permanent Impairment Guidelines are directed to informing the medical assessor how to determine the cause of injury in a damages context, not a liability one.

3. [166]

   Secondly, the causation “test” set out in the Permanent Impairment Guidelines cannot inform the question of causation in the liability context. That question, as I have said, is governed by the s 5D test for causation in the Civil Liability Act.

4. [167]

   Thirdly, the Permanent Impairment Guidelines cannot determine the proper construction of the MAC Act. Indeed, a guideline, or an obligation imposed upon a medical assessor to comply with a guideline, which purported to contradict an obligation imposed by the MAC Act would likely be ultra vires to the extent it purported to do so. [142] Caution should be exercised, in my view, in considering whether those guidelines can inform the exercise the medical assessor was required to undertake.

Discretionary disposition

1. [168]

   In the circumstances, it is unnecessary to deal other than briefly with AAMI’s complaint about the primary judge’s alternative discretionary disposition of the matter. AAMI accepted that such a discretion was available “if a more convenient and satisfactory remedy exists”, [143] but submitted it should not be exercised lightly. [144]

2. [169]

   The bases upon which the matter could have been referred again for assessment are limited as set out in s 61(4) and (5) to which the primary judge did not refer. It is sufficient to note those provisions without finally deciding this issue, in the light of my conclusion on the substantive issues.

Conclusion

1. [170]

   The Proper Officer’s role in determining the review application pursuant to s 63 of the MAC Act is that of a gatekeeper, not a decision-maker. [145] The power is engaged when the Proper Officer is satisfied that “there is reasonable cause to suspect” that the medical assessment was incorrect in a material respect. [146] It might be accepted, as AAMI submits, that this is a low threshold. I am not persuaded however, that the primary judge erred in rejecting AAMI’s submission that the Proper Officer should have found it had been crossed. His Honour correctly held that it was not the function of a medical assessor to determine what constituted a “motor accident”.

2. [171]

   On AAMI’s submissions, the tail of one head of damages for non-economic loss would wag the dog of the critical, and primary, issue of liability which arises in a motor accident claim before the question of any award of damages. To accept that submission would give the MAC Act a construction which, in my view, would be manifestly absurd or unreasonable.

Orders

1. [172]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      AAMI to file the notice of appeal a draft of which appears in the White Book within seven days.

   3. (3)

      Appeal dismissed with costs.

2. [173]

   MACFARLAN JA: I agree with the judgments of McColl and Simpson JJA.

3. [174]

   SIMPSON JA: The central issue sought to be raised in these proceedings involves a relatively short point: what is encompassed in the obligation of a medical assessor, appointed under Pt 3.4 of Ch 3 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) to assess whether the degree of permanent impairment of an injured person caused by a motor vehicle accident is greater than 10 per cent?

4. [175]

   The relevant legislation is set out in the judgment of McColl JA, which I have had the advantage of reading in draft. I do not propose to repeat the legislative provisions.

5. [176]

   The point arises in the following way (stated as shortly as possible). On 5 July 2009 Ms Vanessa Sproule was involved in an event (or series of events) that, she claimed, caused her permanent psychiatric injury. The clearest factual account of the events is contained in a statement subsequently made by Ms Sproule to police. She asserted that, prior to 5 July 2009, she and a Mr Judd Ball had been in a relationship that terminated in 2006. In circumstances it is unnecessary to recount in detail, in the early hours of 5 July Ms Sproule was driving her motor vehicle with Mr Ball as passenger, when Mr Ball violently assaulted her, to the point that she briefly lost consciousness. The assaults continued after she regained consciousness, and she attempted to alight from the vehicle, eventually falling to the ground. Mr Ball took control of the car and drove off. Ms Sproule took shelter near a small brick fence, and attempted to obtain assistance by telephoning the emergency number. Mr Ball reversed the car directly towards her, alighted from the car, and again physically assaulted her. While Mr Ball was out of the car, Ms Sproule re-entered it, on the passenger side, and locked the doors. Before she could close the window, Mr Ball reached in, unlocked the door and resumed the assaults. He dragged Ms Sproule out of the car, continually assaulting her. He forced her into the passenger side of the vehicle. At this time, she was partly in, partly out, of the vehicle. To avoid the assaults, she pulled herself in and closed the door. Mr Ball re-entered the car, took the driver’s seat, and drove off at high speed. He threatened to crash the car, and to drive in such a way as to kill both of them. Eventually he brought the car to a halt outside a block of home units and Ms Sproule left the vehicle. He then drove the car into an underground car park. After a little time he approached Ms Sproule, pushed her, and demanded that she come inside the units to talk. She attempted to call police; he took the phone and threw it against a brick wall.

6. [177]

   Ms Sproule made a claim for damages for personal injury. The claim was governed by the MAC Act. She claimed to be suffering from post-traumatic stress disorder as a consequence of the events. She provided supporting medical reports and information.

7. [178]

   In order to succeed in her claim, it was necessary that Ms Sproule establish that her injury was:

8. [179]

   It is apparent, from the account above, that part of the events took place while both Ms Sproule and Mr Ball were in the vehicle; part involved Mr Ball reversing the vehicle towards Ms Sproule; and part took place while both parties were outside the vehicle, although in its near vicinity.

9. [180]

   Ms Sproule’s claim was (or involved) a claim for damages for non-economic loss. It was therefore necessary that she show that she suffered a degree of permanent impairment greater than 10 per cent: MAC Act, s 131.

10. [181]

    The insurer, AAMI, filed a Reply to Ms Sproule’s claim. The substance of the Reply was:

11. [182]

    In support of the Reply, AAMI provided written submissions. The salient passages in the written submissions are:

12. [183]

    The claim was referred, under s 58 of the MAC Act, to a medical assessor, Dr Sharon Reutens. Dr Reutens issued a certificate on 15 August 2012. The question to which Dr Reutens directed her attention was:

13. [184]

    Dr Reutens concluded that Ms Sproule suffered a whole person impairment of 17 per cent, of which 5 per cent was attributable to a previous injury. After adjustment for the effects of treatment the assessment of “final permanent impairment” was 14 per cent.

14. [185]

    Pursuant to s 63 of the MAC Act, AAMI sought review of Dr Reutens’ medical assessment. By sub-s (3) of s 63 such an application is made to “the proper officer” of the Motor Accidents Authority (now the State Insurance Regulatory Authority), who is to arrange for any such application to be referred to a panel of at least three medical assessors:

15. [186]

    AAMI’s application contained the following. In answer to a question “what is the error or mistake? [said to have been made by the medical assessor]”, AAMI inserted:

16. [187]

    In answer to a question “How is this material to the outcome of the assessment?”, AAMI inserted:

17. [188]

    The proper officer refused the application for review, declaring himself:

18. [189]

    Under “Reasons for Decision”, the proper officer said:

19. [190]

    By Summons filed in the Supreme Court AAMI sought judicial review of the decision of the proper officer, asserting jurisdictional error or error on the face of the record (Supreme Court Act 1970 (NSW), s 69). On 10 July 2015 Button J dismissed the Summons: AAI Limited v Motor Accidents Authority of New South Wales [2015] NSWSC 912. It is against that judgment that AAMI now seeks leave to appeal. In its submissions to the medical assessor (Dr Reutens), AAMI did not argue that, in performing her functions as a medical assessor, she ought to attempt to “disentangle” the effects of those parts of the events of 5 July that took place in the motor vehicle, or involving it, and those that took place while both Ms Sproule and Mr Ball were out of the vehicle. That, however, was the proposition that AAMI put to the proper officer, to Button J, and to this Court.

20. [191]

    Before Button J and before this Court, AAMI asserted constructive jurisdictional error on the part of the proper officer: (i) in failing to ask whether Dr Reutens’ assessment was incorrect in a material respect by reason of her asserted failure to determine whether Ms Sproule’s injury was caused by a motor accident; and (ii) failing to ask whether Dr Reutens was incorrect in a material respect by reason of non-compliance with the statutory duty to determine whether Ms Sproule’s injury was caused by a motor accident. The focus of the argument lies in the words “caused by the motor accident”.

21. [192]

    The MAC Act does not itself confer a right of action in respect of injury (or death) caused by motor vehicle accidents. Its long title (“An Act to establish a new scheme of compulsory third-party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents …”) indicates that its purpose is to regulate the award of damages in respect of common law claims arising out of motor vehicle accidents. That regulation includes a process of medical assessment (Pt 3.4 of Ch 3), and a process of (non-judicial) claims assessment (Pt 4.4 of Ch 3).

22. [193]

    So far as I can see, for present purposes the two questions posed in the application for leave to appeal are essentially identical. They raise the issue whether the task committed to Dr Reutens as medical assessor required her to determine the extent to which Ms Sproule’s psychiatric condition was attributable to those parts of the events of 5 July 2009 that took place in, or involved, the motor vehicle, and those that took place outside. For that purpose, counsel for AAMI sought to divide the events of 5 July into five “phases”. As pointed out above, that is not the way AAMI advanced its case before Dr Reutens.

23. [194]

    Some superficial support for AAMI’s position may be obtained from s 58, pursuant to which the medical assessment procedures apply to whether any treatment given to the claimant “relates to the injury caused by the motor accident”.

24. [195]

    However, it is clear that the legislation does not contemplate dissection of “the injury” into portions. “Permanent Impairment Guidelines” issued under s 44 of the MAC Act expressly recognise that there will, on occasions, be a need to distinguish between the medical consequences of a motor accident, and any pre-existing impairment “in the same region”, and provide for appropriate apportionment. No corresponding provision is made for the apportionment of the consequences of a discrete incident in a single event.

25. [196]

    As indicated above, Pt 4.4 of the MAC Act contains detailed provisions for the assessment and resolution of claims. These are distinct from the provisions in Pt 3.4, which provides for medical assessment (of motor accident injuries). Section 92 specifically provides for exemption from assessment under Pt 4.4 in respect of claims: (a) that are exempt under Motor Accidents Claims Assessment Guidelines [issued under s 69] or the Regulations; or (b) claims determined by a claims assessor to be unsuitable for assessment under Pt 4.4.

26. [197]

    As sub-s (2) makes plain, exemption from the assessment procedures permits the claim to be determined by judicial process. This is the process, in my opinion, by which any “disentangling” of the effects of the motor accident on Ms Sproule as distinct from the assaults should be determined.

27. [198]

    I specifically agree with the reasoning of McColl JA in [133]-[140].

28. [199]

    In my opinion, no error, jurisdictional or otherwise, has been identified on the part of the proper officer, and Button J was correct in the conclusion that he reached.

29. [200]

    I agree with the orders proposed by McColl JA.