McCosker v Motor Accidents Authority of New South Wales

This is an application for judicial review by the plaintiff, Ms McCosker, of the decision of a proper officer of the Motor Accidents Authority (the Authority) to refer a matter for further medical assessment, pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). The fundamental issue requiring determination by me is whether, as a matter of law, the proper officer misinterpreted and misapplied the phrase “additional relevant information” contained in s 62(1)(a) of the Act, thereby committing a jurisdictional error.

The second defendant (an insurance company to which I shall refer for convenience as “the defendant”) submitted that there was no legal error amenable to judicial review. The first defendant, the Authority, entered a submitting appearance and took no part in the proceedings.

A concise background of the matter is as follows. On 4 March 2006, the plaintiff was involved in a motor vehicle accident. Shortly thereafter, she commenced non-curial personal injury medical assessment proceedings in the Medical Assessment Service (MAS) of the Authority, pursuant to s 58 of the Act.

Pursuant to s 60 of the Act, a claim was then made by the defendant to the Authority for a medical assessment of injury. The plaintiff was subject to medical assessment on a number of occasions.

On 14 December 2012, Assessor Baldwin certified that the plaintiff’s lumbar scarring and disfigurement resulted in a permanent impairment of 2%.

On 18 December 2012, Assessor Kenna certified that the injuries to the plaintiff’s cervical spine, thoracic spine, lumbar spine and left knee had resulted in a permanent impairment of 25%. That determination was important, of course, because the effect of s 131 of the Act is that 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 vehicle accident is greater than 10%.

At the time of the assessment, Assessor Kenna did not have before him any evidence of the chiropractic treatment of the plaintiff, including the treatment notes of Mr Robert Schwager, chiropractor. Nor did the Assessor have the statement of Mr William Gumbleton of 15 July 2006, who was a witness to the motor vehicle accident. There is no dispute on the part of the defendant that it had possessed those documents for quite some time: the notes of the chiropractor since 20 February 2009, and the statement of Mr Gumbleton since late 2008 or early 2009. In other words, both of those documents had been available to the defendant for at least three years before the assessment was made.

On 8 January 2013, a joint certificate was issued by the MAS certifying that the degree of permanent impairment of the plaintiff was 27% (inclusive of the lumbar spine scarring).

On 4 February 2014, the defendant lodged an application for further medical assessment of a permanent impairment dispute, pursuant to s 62(1)(a) of the Act.

On 25 March 2014, and in response to the application of the defendant of 4 February 2014, proper officer Probert determined that there should be a further medical assessment. By that stage, the defendant was asserting that the plaintiff had not been entirely open about her back problems that existed before the motor vehicle accident occurred, and was raising the possibility that some of her injuries were nothing to do with that event.

At the time, the proper officer had been provided with a report of Mr Schwager, the chiropractor, of 15 March 2013, and a report of Dr Paul Spira, consultant neurologist, of 2 December 2013. It was not disputed before me that the latter expressed an expert opinion that was adverse to the claim of the plaintiff, and that was founded upon the report of Mr Schwager and the statement of Mr Gumbleton. The degree to which the statement of the chiropractor of 15 March 2013 went beyond what was contained in his handwritten notes, created many years before, was a matter of dispute between the parties before me.

As well as that, the proper officer had before her the written submissions of the plaintiff of 6 March 2014, which clearly disputed that any of the assertedly additional material could found a referral. In a nutshell, those submissions were to the effect that, because both the report of Mr Schwager and the report of Dr Spira were very largely based on material that had been in the possession of the defendant well before the original assessment, neither could constitute “additional relevant information”.

It is convenient to set out the entirety of the portion of the decision of the proper officer that senior counsel for the plaintiff submitted is relevant to the asserted error of law:

It is not necessary to set out anything beyond the pertinent portion of the Act:

It can be seen that, as a matter of simple chronology, the report of Dr Spira of 2 December 2013 post-dated the previous assessment of Assessor Kenna of 18 December 2012. So did the report of the chiropractor of 15 March 2013. Both of them were deemed by the proper officer to be additional relevant information in the form of evidence of a pre-existing spinal condition of the plaintiff, thereby giving rise to the decision of the proper officer to order a further assessment. But the plaintiff submitted before me that those bare chronological facts could not properly have been determinative of the assessment that the proper officer was called upon to make, pursuant to s 62 of the Act.

Senior counsel for the plaintiff submitted that the proper officer committed a legal error amenable to judicial review. Amongst a number of bases for intervention, he said that it was unreasonable and plainly unjust for the proper officer to find that the report of the chiropractor of 2 December 2013 constituted additional relevant information capable of having a material effect on the outcome of the previous assessment. That was because, it was submitted, the report of Mr Schwager was in truth nothing more than a transcription of the notes that the defendant had possessed for years before the original assessment.

He submitted that one can discern the notes sufficiently to see that that is the case, and provided (over objection) a document, which I characterised as a written submission, in support of that proposition.

As for the report of Dr Spira, senior counsel submitted that it was an opinion derived from evidential material (the notes of the chiropractor indirectly, and the statement of the witness directly) that had also been in the possession of the defendant for many years before the assessment. In those circumstances, the opinion of the expert could not be characterised as “additional”.

Senior counsel referred to the judgment of Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (“Singh (No 2)”) in support of the proposition that, although s 62 of the Act envisages more than one assessment in appropriate circumstances, it cannot be the case that material can be characterised as “additional” if it was in the possession of a party at the time of the original assessment, but was not placed before the assessor at that time. And he submitted that the same prohibition applies to material substantially derived from such material.

Separately, senior counsel submitted that the information could not be characterised as capable of a having a material effect, because of its inability to demonstrate with any force that the plaintiff has been less than forthcoming about any pre-existing medical conditions from which she suffered at the time of the motor vehicle accident.

In response, senior counsel for the defendant submitted that there was no error of law committed by the proper officer.

He did not submit that Singh (No 2) had been superseded, or disapproved, or should not be followed. Nor did he submit that there was any material before the proper officer, or evidence before me, to the effect that the notes of Mr Schwager or the statement of Mr Gumbleton had been overlooked or misunderstood, and that that could somehow inform my approach to this question.

Rather, he asserted that the notes of Mr Schwager were very largely illegible, in sharp contrast to his subsequent typed report. Quite apart from that, by way of his own written submissions, he sought to show that there were a number of new matters contained in the report that were not contained in the handwritten notes. For those reasons, he submitted that the report of Mr Schwager was indeed additional information.

As for the report of Dr Spira, he submitted that it did not exist in any form at the time of the original assessment, and was additional as well.

Finally, he rejected the proposition that information said to suggest that the plaintiff had not been frank about any injuries that pre-dated the accident could not be characterised as capable of being material.

It is necessary to decide some preliminary and factual matters before resolving this dispute.

The first is that, to my mind, the report of Mr Schwager is very largely (though not completely) a transcription of his notes. I say that for three reasons.

First, the written submission with which I was provided by the defendant sets out to show the assertedly new matters that appear in the report that do not appear in the notes. Taking the case for the defendant at its highest in that sense, one can see that the asserted new matters are a small proportion of the report. Furthermore, to my mind, many of those “new matters” are really differences in expression between the notes and the report with regard to identical medical or anatomical matters. In other words, much of the assertedly new material in the report is, on analysis, nothing more than a paraphrasing of material in the notes.

Secondly, it is true that, to my eyes, the notes are very largely illegible. Nevertheless, I think there is force in the submission of the plaintiff that the defendant thought them sufficiently legible to place them before the proper officer (as part of the application under discussion) who, it can be seen from the extract that I have provided, rejected them on the basis that they were not “additional”. One can infer that, at that significant stage, the defendant considered them to be sufficiently legible to play a role in its application for further medical assessment.

Thirdly, it can be seen that, according to the typed report and the handwritten notes, the last date of treatment of the plaintiff by Mr Schwager was 7 August 2008. The date of his report is 15 March 2013. I consider that one can safely infer that, when he prepared his report, the chiropractor based it on his notes, and had very little (if any) independent recollection of his treatment of the plaintiff, which had concluded well over four years beforehand.

In short, I consider that the typed report of Mr Schwager must be approached as being, in substance, nothing more than a transcription of his handwritten treatment notes from many years before.

Secondly, I respectfully reject the submission of the plaintiff that the information contained in the report of the chiropractor and of the consultant neurologist could not have had a material effect on the outcome of the previous assessment. To my mind, it could certainly be material in that way, to the extent that it has the potential to suggest that the plaintiff has not been frank about her condition. That in turn is material to the question of which injuries were in truth derived from the motor vehicle accident and which injuries already existed at the time that it occurred. On the same basis, I consider that there was no error in the proper officer characterising the evidence as relevant.

Thirdly, I do not consider that resolution of this dispute calls for a detailed analysis of the Act, either in its particular provisions or its overall structure. Nor do I consider that it calls for a detailed analysis of the principles of judicial review. That is because, by the end of the oral submissions, and with the assistance of two members of the Inner Bar highly experienced in this area of law, I came to understand the real question requiring resolution by me as being whether it was an error of law amenable to judicial review for the proper officer to characterise the two reports as being additional information.

I have approached my task in accordance with the judgment of Basten JA (with whom Ward JA and Young AJA agreed) in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442. By that I mean that I have not sought to determine for myself whether any objective fact existed. Rather, to use his Honour’s words at [36]:

Because of the significance that each party ascribed to the decision of Rothman J in Singh (No 2), I shall discuss it in a little detail.

The facts of the matter were as follows. On 7 January 2002, the plaintiff was involved in a motor vehicle accident and claimed to have suffered psychological injury as a result. Those alleged psychological injuries were assessed by Assessor McClure on 20 February 2008. Assessor McClure found that the plaintiff had suffered no psychiatric injury at all as a consequence of the accident, and issued a certificate certifying that her whole person impairment was 0%.

The plaintiff successfully applied for a review of that assessment pursuant to s 63 of the Act. Both the plaintiff and the defendant (the insurer of the motor vehicle at fault) had the opportunity to adduce further material and tender further documents for consideration by the Review Panel. On 4 July 2008, the Review Panel found that the plaintiff had suffered a psychiatric injury which gave rise to whole person impairment of 44%. A certificate was issued to that effect.

The defendant then applied for a further assessment, pursuant to s 62(1)(a) of the Act. The basis for that further assessment was said to be “additional relevant information” about the plaintiff’s psychological injury that was capable of having a material effect on the outcome of the previous assessment. In support of its application, the defendant sought to rely on three reports (including one prepared by a Doctor Selwyn Smith) that post-dated the decision of the Review Panel, and a surveillance DVD that pre-dated that decision. The DVD was said by the defendant to show that the plaintiff was not being truthful about her injuries. The report of Dr Smith was based to a very large degree on the DVD.

On 9 March 2009, a proper officer of the MAS decided to refer the matter for further medical assessment. In response to that determination, the plaintiff filed a summons in this Court seeking to prevent the proper officer, or any other delegate of the MAS, from appointing a Medical Assessor to assess the defendant’s application for further assessment. The plaintiff submitted that, as the DVD and three reports were available to the defendant at the time of the review and extant assessment, neither could constitute “additional relevant information” for the purposes of the Act.

Rothman J found that the material relied upon by the defendant was not “additional relevant information” about the plaintiff’s psychological injury. Accordingly, no valid referral for further medical assessment of the matter had occurred. Rothman J stated at [45] - [60] that:

In short, I consider that the judgment of Rothman J stands for two propositions. The first is that material that was in the possession of a party at the time of the original assessment cannot be relied upon by that party as additional information in support of an application for a further assessment. The second proposition is that material that is an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, will also fall within the prohibition contained in the first proposition.

Although the judgment of Rothman J in Singh (No 2) is not binding as a matter of judicial hierarchy, I consider that, as a matter of comity, I should accord it substantial weight. Separately from that, I find his Honour’s reasoning powerfully persuasive. As I have said, senior counsel for the defendant did not submit that it does not represent the law in New South Wales.

Whilst the legislation envisages further assessments in certain circumstances, I consider that it cannot be the case that a party can fail to provide relevant material, and thereafter rely upon the section in support of the proposition that the whole process should be revisited. I respectfully agree with Rothman J that to permit that to occur would not be consistent with the overarching purpose of the Act; namely, to provide a system for the determination of such matters expeditiously, co-operatively, and without the necessity for recourse to a court. I accept that the principle in Singh (No 2) should not be applied with inflexibility to the point of injustice, but here it is capable of sensible application.

As I have said, I consider that the report of Mr Schwager was little more than a transcription of the notes that the defendant had in its possession four years before the assessment of Assessor Kenna. In those circumstances, I do not consider that it was open to the proper officer to regard the report as additional information. To express my view in terms familiar to judicial review, I consider that the decision of the proper officer decision to characterise them in that way was a misconstruction of the relevant legislation and was therefore not made according to law.

As well as that, I consider that the principle in Singh (No 2) applies to information such as the report of Dr Spira that is derived from material that was in existence and available to a party at the time of the first assessment. Dr Spira’s expert opinion is based upon the statement of Mr Gumbleton and the report of Mr Schwager. The former was unquestionably in existence and available to the defendant at the time of the first assessment. I have determined that the latter document, although not in existence at that time, is to be regarded as very substantially a transcription of the notes that were in existence and available to the defendant at that time. It follows that the report of Dr Spira is captured by the principle in Singh (No 2) as well. I consider that it was a misconstruction of the legislation for the proper officer to characterise the report of Dr Spira as being additional information.

As well as that, it can be seen from the extract that appears at [13] of my judgment that the proper officer did not provide any analysis of the submission of the plaintiff that, in the circumstances of this case, the two reports could not fall within the section. Whilst the reasons of the proper officer dealt with the straightforward chronological question of when documents came into existence, they do not deal with the more refined argument of the plaintiff about the proper application of Singh (No 2). I respectfully consider that the proper officer’s reasons for decision do not grapple with the point of contention that arose here.

In short, in the circumstances of this case, I do not consider that it was open to the proper officer to characterise the report of Mr Schwager and the report of Dr Spira as being “additional relevant information”. I say that because the former document was little more than a transcription of a document that had been in the possession of the defendant for years before the assessment by Assessor Kenna, and because the report of Dr Spira was based upon the report of Mr Schwager and upon another document that had the same temporal attribute.

I consider that the plaintiff has established that the proper officer’s determination is founded upon a significant error of law with regard to s 62(1)(a) of the Act; that the error is amenable to judicial review; and that the decision should be quashed as a result.

There is no basis on which costs should not follow the event.