Chan v AAI Limited

1. [1]

   HIS HONOUR: By summons filed on 28 April 2020, Zion (Xun) Chan seeks the following orders:

   1. (1)

      An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decision of the second defendant, in her capacity as proper officer of the State Insurance Regulatory Authority, the third defendant, to dismiss the plaintiff’s application for a further medical assessment dated 3 February 2020 purportedly made pursuant to section 62 of the Motor Accidents Compensation Act 1999.

   2. (2)

      An order in the nature of mandamus remitting the matters the subject of the decision to the Authority for reallocation of the matter to a different proper officer of the Authority for determination of the application according to law.

Background

1. [2]

   Dr Chan was injured in a motor vehicle accident on 14 December 2014. He claims damages for an injury to his cervical spine and his right shoulder. The former is not contentious. However, there is a dispute about whether Dr Chan’s shoulder injury was caused by the accident. The issue is important because Dr Chan is a surgeon who claims to have suffered significant economic loss as a result of continuing right shoulder disabilities that restrict his capacity to operate.

2. [3]

   Dr Chan was assessed on 11 April 2019 by Assessor Clive Kenna who certified on 3 May 2019 that he had suffered a cervical spine injury caused by the motor vehicle accident, assessed as a 5 percent whole person impairment. Assessor Kenna also determined that the right shoulder injury was not caused by the motor vehicle accident.

3. [4]

   Dr Chan applied for a review of Assessor Kenna’s certificate pursuant to s 63 of the Motor Accidents Compensation Act 1999. On 9 September 2019, the review panel confirmed Assessor Kenna’s certificate.

4. [5]

   Dr Chan then applied for referral for further medical assessment pursuant to s 62 of the Act. On 3 February 2020, proper officer Tami O’Carroll determined that the matter would not be referred for further medical assessment.

5. [6]

   Dr Chan seeks judicial review of that determination. He contends that Ms O’Carroll misapplied s 62 in that she did not consider or determine whether the opinions of Associate Professor Haber and Dr Porteous could be capable of having a material effect on the outcome of the previous assessment because she erroneously decided that a new opinion concerning causation could only have had a material effect on the outcome of the previous assessment if there were also “new findings or information” to justify that new opinion.

Ms O’Carroll’s reasons

1. [7]

   The matter came before the proper officer on Dr Chan’s application for referral for further assessment upon the basis of additional relevant information concerning his injury. The material relied upon as amounting to additional relevant information consisted of the report of Associate Professor Haber dated 25 July 2019 and two reports of Dr Porteous dated 31 July 2019. In considering these reports, the proper officer reasoned as follows:

2. [8]

   The proper officer appears clearly to have accepted the insurer’s submission in this respect, which she recorded at [13] of her reasons as follows:

Relevant legislation

1. [9]

   Sections 62 and 63 of the Motor Accidents Compensation Act are in the following relevant terms:

2. [10]

   As will be apparent, the meaning and scope of the words “such as to be capable of having a material effect on the outcome of the previous assessment” in s 62(1A) are central to the present dispute.

Submissions

1. [11]

   Dr Chan contended that the proper officer committed an error on the face of the record at [31] of her reasons. He submitted that opinions, such as those of Associate Professor Haber and Dr Porteous, can themselves be “additional relevant information”, even if based solely on the same background facts upon which the previous medical assessment was based. Dr Chan maintained that the insurer has sought to characterise the test or appropriate inquiry for the proper officer as being her subjective assessment of the effect of the opinions of Associate Professor Haber and Dr Porteous on the previous assessments. Dr Chan submitted that this approach was erroneous: the clear test stated in s 62 is whether those opinions could be capable of doing something, not whether they would do so. The proper officer’s use of the word “would” in paragraph [31] of her reasons bespoke error. There is no scope for the proper officer’s subjective assessment of what the effect might be: the test is whether the material is objectively capable of having an effect on someone else’s assessment. Dr Chan described that distinction as “fundamental and critical”.

2. [12]

   Dr Chan argued that the assessment was one of capacity to do something. The inquiry is not about whether the particular doctors were going to change their minds but whether the additional relevant information was such that it was capable of leading them, as reasonable medical assessors, to do so. Moreover, the proper officer in this case could not make a valid assessment of that question in any event because she had fettered her ability to do so. That was because of her fundamentally erroneous view that a new opinion could only be capable of having a material effect on a previous assessment if it was based on “different or additional objective information” to that which was available at the time of the previous assessment.

Consideration

1. [13]

   Dr Chan relied upon the obiter remarks of Gleeson JA in Jubb v Insurance Australia Ltd and Another (2016) 76 MVR 228; [2016] NSWCA 153. In that case, his Honour said this:

2. [14]

   Both Dr Chan and the insurer referred me to QBE Insurance (Australia) Ltd v Miller (1013) 67 MVR 322; [2013] NSWCA 442. Basten JA considered the standard of review and said this at [36]:

3. [15]

   Dr Chan contended that the proper officer misconstrued the legislation to the extent that she considered that an opinion, such as those of the doctors concerned, could not be capable of having a material effect unless it was based on new objective information. Moreover, Dr Chan submitted that the proper officer approached her task as if it was one that required her to determine whether a new assessment panel would change their mind, not whether they could.

4. [16]

   Section 62(1A) clearly operates as a filter or gateway provision with the apparent purpose of restricting matters that are to be referred for further assessment to those that could have a material effect on the outcome of the previous assessment. Although the provision does not say so in terms, the notion of a material effect appears clearly to contemplate the prospect or possibility of a different result. Put another way, the legislation operates so that an application for further referral that is unlikely to produce a different result, in the sense that it is incapable of having a material effect on the outcome of the previous assessment, will not succeed.

5. [17]

   The word “capable” as used in s 62(1A) summons the concept of whether what is being considered as additional information has the potential to have a material effect on the outcome. While she uncontroversially accepted that the medical opinions in question were capable of amounting to additional information, the proper officer in my opinion improperly fettered her discretion by dismissing the prospect that the medical opinions of Associate Professor Haber and Dr Porteous were capable of materially effecting the outcome by reasoning that they were not underpinned or based upon a factual matrix that differed from that with which the original assessment was concerned. The fact that there has been no change of circumstances cannot in my opinion be a relevant disqualification of the reports in an assessment of their capability to have a material effect on the outcome. It may be accepted at one level that the likelihood that the reports would have the relevant effect in such circumstances may be low: but that is not what the proper officer was concerned to determine. The medical reports in question did not lose their capability of having such an effect. The proper officer’s expressed concern, that the “opinions do not appear to be based on any new findings or information than that which was considered by the Panel” indicates either that she posed the wrong question or improperly limited the scope of her inquiry. Put slightly differently, it was an error for the proper officer to say that because the medical reports were not based on new findings or information that they were for that reason incapable of having a material effect on the outcome of the previous assessment. In either case, in my opinion, this constitutes an error on the face of the record.

Orders

1. [18]

   I consider that the following orders should be made:

   1. (1)

      Set aside the decision of the second defendant, in her capacity as proper officer of the third defendant dismissing the plaintiff’s application for a further medical assessment, dated 3 February 2020 made pursuant to s 62 of the Motor Accidents Compensation Act 1999.

   2. (2)

      Remit the matters the subject of the decision to the third defendant for reallocation to a different proper officer for determination of the plaintiff’s application according to law.

   3. (3)

      Order the first defendant and the third defendant to pay the plaintiff’s costs.