Scott v Insurance Australia Limited

1. [1]

   The plaintiff, Ms Scott challenges by judicial review under s 69 Supreme Court Act 1970 (NSW) a number of decisions made by the Motor Accidents Medical Assessment Service established under s 57A Motor Accidents Compensation Act 1999 (NSW) (the Act) referring a purported medical dispute, under s 60 of the Act, for separate assessment by three medical assessors. The impugned decisions are:

2. [2]

   Each assessment was of the matters whether attendant care services which have been, or are to be provided, voluntarily to Ms Scott (see s 141B of the Act) were or are “reasonable and necessary in the circumstances”, and whether the provision of such services “[relate] to the injury caused by the motor accident” (see s 58(1)(a) and (b)).

3. [3]

   The grounds of challenge were set out and particularised in the summons with a good deal of elaboration. The same may be said of the way they were advanced and developed in argument. Essentially, however, I think, they came down to this:

Background facts

1. [4]

   Ms Scott was injured in a car accident on 15th of May 2010. After turning into her driveway in a semi-rural area, a following vehicle which swerved onto the shoulder to avoid hitting the car immediately following Ms Scott “T-Boned” the rear passenger side of her car. The first defendant, Insurance Australia Limited t/as NRMA Insurance (the insurer), admitted liability for Ms Scott’s claim under s 81 of the Act.

2. [5]

   Ms Scott suffered an injury to her neck and low back, the latter resulting in an L5/S1 discectomy carried out in August 2010. Because of the effects of her physical injuries, she suffered a chronic major depression which resulted in a whole person permanent impairment assessed under s 60 of the Act by Dr Friend (in a certificate dated 19th March 2013) at 15 per cent, relevantly for statutory purposes “greater than 10%”. The lumbar spinal injury was assessed as resulting in a whole person impairment of 5 per cent.

3. [6]

   In anticipation of Ms Scott referring her claim for assessment by the Motor Accidents Claims Assessment and Resolution Service in accordance with the provisions of Division 2, Chapter 4, of the Act, her solicitors served written submissions on the insurer, also described as “particulars of the claim pursuant to s 85”, under cover of their letter of 22nd April 2013. (White Folder 123 – 129). Those submissions advanced, inter alia, a claim for past and future voluntary attendant care services in accordance with the principles established by Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 and subsequent cases.

4. [7]

   The particulars of the claim were as follows: “(a) Full time domestic assistance at 40 hours per week” from 15th May 2010 to 31st October 2010; “(b) 10.5 hours per week” from 1st November 2010 to the date of the submission, 16th April 2013; and (c) future assistance at the rate of 10 hours per week “for the balance of her life expectancy which is 48 years”. The basis of the last claim is not entirely clear. The claimed rate of $40 per hour is higher than the then current statutory rate under s 141B of the Act, but a claim for care on a commercial basis is not expressly articulated.

5. [8]

   I do not understand this claim as one for payment under s 83 of the Act. Provision of voluntary services, and the provision of services by a person related to the claimant are not covered by s 83 in any event (s 83(1)(d)). There is no legal obligation for an insurer who has admitted liability to make such payments, although it may agree to (s 83(3)).

6. [9]

   The insurer understood the claim for future care as being for “commercial care” (WF 139) (before me the case was presented on behalf of Ms Scott as a claim for voluntary care only). By letter dated 30th April 2013, the insurer requested “further particulars of the type of care/list of duties required” for both past and future. It referred to the particulars as “a request” for payment and concluded with the following statement:

7. [10]

   Apparently there was no response and the insurer wrote again on 15th May 2013 (WF 140). That letter included the following matters:

8. [11]

   The statement that the insurer looked forward to hearing from Ms Scott’s solicitors “to negotiate this matter further” is odd as there is no evidence of any negotiations at any stage in relation to this matter. I draw the inference that the language of negotiation, dispute and disagreement was used to create the appearance of engagement with guidelines 8.2 to 8.5 of the Medical Assessment Guidelines (the Guidelines) made under s 44 of the Act.

9. [12]

   There is no evidence of any contact in the meantime between the insurer and Ms Scott’s solicitors until, by its solicitors, the insurer made an application for assessment of a treatment dispute under s 60 of the Act. The description of this dispute provided by the insurer ran to 5 pages (WF 143 – 147). For the initial period, MAS was asked to consider whether each and every hour between 0 and 40 was reasonably necessary, and related to the injuries caused by the motor accident; for the second period each and every hour between 0 and 10.5; and for the future each and every hour between 0 and 10. The insurer continued to imply that it understood that the claim for the future was propounded on the basis of commercial care.

10. [13]

    By her solicitors, Ms Scott lodged a reply on 18th June 2013 contesting that the matter was a “treatment dispute” (WF 157). Detailed submissions were attached (WF 161 – 166) disputing MAS’s jurisdiction on the basis that “the treatment dispute provisions … [do] not apply to non-commercial disputes for non-specific forms of treatment”; and arguing that “the procedural hurdles necessary for such a referral have not been satisfied”. There was an argument about abuse of process and a request for an adjournment to obtain, inter alia, occupational therapy assessments.

The impugned decisions

1. [14]

   By letter dated 2nd July, an officer of MAS, described as a “Case Manager”, undertaking the allocation review, by necessary implication, rejected the submission put on behalf of Ms Scott and refused the adjournment. The refusal of the adjournment may be inferred from the determination that “this matter is ready to proceed for assessment”. The rejection of the substantive argument about jurisdiction is apparent from the “note” that the submissions had been made and from the statement that “[MAS] is satisfied that a dispute in regards to past and future treatment exists in this claim”. The officer was satisfied that the procedural requirements of the Guidelines had been met. He or she then formulated 12 questions from the insurer’s five pages, identifying these matters as “treatment disputes to be assessed”. The disputes, as formulated, picked up each of the medical matters referred to in s 58(1)(a) and (b) of the Act, but defined them by separate reference to Ms Scott’s orthopaedic injuries, Ms Scott’s psychiatric injury, and the injuries generally. The questions were, in substantial part, about whether Ms Scott had a “need” for the “treatment”.

2. [15]

   The dispute defined by reference to the orthopaedic injuries was referred to Dr Harvey-Sutton; the dispute defined by reference to the psychiatric injury to Dr Paul Friend; and the generally defined dispute to Ms Wise, the Occupational Therapist.

3. [16]

   Dr Harvey-Sutton issued two certificates dated 27th August 2014. The first certified that a need for domestic assistance in the initial period “relates to the injuries caused by the motor accident”; but that the need for domestic assistance in the second period “and ongoing” do not relate to the injuries. The medical assessor certified that the claimed hours from 1st November 2010, and “from the date … of MAS assessment and ongoing are not reasonable and necessary in the circumstances”.

4. [17]

   Dr Friend issued two certificates on 2nd September 2013. He certified that a need for domestic assistance for the initial period related to the chronic major depression, but any need thereafter did not. His second certificate certified that no hours of domestic assistance for the subsequent periods were reasonable and necessary in the circumstances.

5. [18]

   On the evidence before me I infer that Ms Wise was provided with the certificates of Drs Harvey-Sutton and Friend (WF 243) and was asked to assess the hours “reasonable and necessary” to address the need identified by Drs Harvey-Sutton and Friend in the initial period. She certified that no hours of domestic assistance were reasonable and necessary in that period. Presumably to make matters clear, she certified that 1 to 40 hours of domestic assistance in that initial period were “not reasonable and necessary in the circumstances”.

6. [19]

   There is no “combined certificate” (cf s 61(10(b) of the Act), presumably because no provision is made for such a certificate assessing medical matters under s 58(1) (a) and (b) of the Act.

An extension of time

1. [20]

   As I have explained, the latest decision challenged is dated 21st November 2013. The summons commencing proceedings in this Court was not filed until 20th November 2014. This contravenes the requirements of Rule 59.10(1) Uniform Civil Procedure Rules 2005 (NSW). Ms Scott seeks, and the insurer opposes, an extension of time under Rule 59.10(2).

2. [21]

   Ms Scott relies upon the affidavit of the solicitor with the current carriage of the matter, Ms Rita Dawood sworn on 10th February 2015 and the insurer, on the affidavit of its solicitor, Ms Jennifer Louisa Mithieux, sworn on 8th January 2015.

3. [22]

   Ms Dawood explains that a brief to advise was delivered to both senior and junior counsel on or about 25th November 2015. Advice was received from, I infer, junior counsel that the certificates “were not binding”, but that, due to other commitments, a fuller advice could not be provided for some time. The brief was withdrawn and other counsel briefed.

4. [23]

   The application for general assessment was lodged on 2nd May 2014 and “an allocation review” was conducted by the principal claims assessor on 24th June 2014. When the matter came before the claims assessor to whom it had been allocated on 10th July 2014, he expressed the provisional view that he was bound by the certificates and directed any written submissions to the contrary to be filed by 30th September 2014.

5. [24]

   Ms Dawood then realised that the matter was of some complexity. The brief was withdrawn from the second counsel briefed and Mr Mark Daley of counsel, who appeared on the summons, was briefed on or about 9th July 2014.

6. [25]

   After a conference with Mr Daley “in or about August 2014” Ms Dawood appreciated “that the view expressed by the CARS Assessor was arguably right” and proceedings for judicial review would need to be commenced. She was also advised that such proceedings must be commenced within 3 months of the date of decision, which time had already well and truly expired.

7. [26]

   Due to the plaintiff’s relocation to Perth, there was a delay in obtaining instructions, but necessary instructions to commence proceedings were obtained on 23rd October 2014 and, as I have said, the summons was filed on 20th November 2014.

8. [27]

   The insurer opposed an extension of time on 3 grounds:

Decision on extension of time

1. [28]

   Under s 61(2) of the Act, a certificate as to a medical assessment matter is conclusive evidence as to the matters certified, inter alia, in any assessment by a claims assessor. Leaving to one side the difficulty with conflicting certificates in this case, while the certificates stand the plaintiff will be unable to advance a claim for Griffiths v Kerkemeyer damages as modified by s 141B. I am not satisfied that a decision to extend time would prejudice the insurer in any relevant sense. It embarked upon, and pressed the applications before MAS knowing that Ms Scott disputed MAS’s jurisdiction. If I extend time and Ms Scott is successful, the only upshot is that an invalid decision will be set aside and the rights and obligations of the parties will be determined according to law. This is not prejudicial in any relevant sense. On the other hand, assuming invalidity, Ms Scott will be deprived of an entitlement to claim that which she maintains is an integral part of her entitlement to damages. That is prejudice.

2. [29]

   Ms Scott and her solicitors knew of the decisions at the time they were made or soon after. Advice was sought with reasonable promptitude, but unfortunately erroneous advice was apparently provided. Once the error became apparent in July 2014, reasonable diligence was exerted in commencing these proceedings. Such further delay as there was is explained by the plaintiff relocating to Perth and, the inconvenience of obtaining instructions in relation to technical matters over the telephone.

3. [30]

   Undoubtedly, the claim has taken longer to reach finality than it should have, but the interests of justice favour extending time to bring the proceedings. The decisions impugned are not “final” and there is no evidence that any third or other party will be prejudiced by an extension of time. There is no particular public interest at stake other than the interest that administrative decisions ought to be made according to law. This principle of legality favours extending time.

4. [31]

   In due course I will pronounce an order extending the time for bringing these proceedings to 20th November 2014.

Summary of argument

1. [32]

   Mr Daley of Counsel, who appeared for Ms Scott, argued that the claim for an allowance for Griffiths v Kerkemeyer type damages was not treatment within the meaning of s 58 of the Act. The argument had two limbs, one broad, the other narrow. The broad basis was that the voluntary provision of domestic services that the claimant was unable to perform for herself by reason of the injuries caused by the motor accident is not treatment because treatment should be understood in its statutory context as restricted to services rendered by a trained, qualified or professional person and for which a claimant will or may incur a fee, or “financial loss”. That is to say, matters the subject of special, rather than general, damages at common law. He referred to Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths) at p 287 [4.6.1]. He also invoked the ejusdem generis rule to the interpretation of the definition of “treatment” in s 42 of the Act.

2. [33]

   The narrow argument, adopting a purposive interpretation of the relevant provisions of Chapter 3 of the Act was that treatment in s 42, and therefore s 58 was restricted to treatment giving rise to “expenses” of the type an insurer who had admitted liability was obliged to pay under s 83 of the Act.

3. [34]

   Mr M.A. Robinson SC, who appeared with Ms J Gumbert for the insurer, pointed out that the expression “attendant care services” is defined in s 3 of the Act and should be understood in its defined sense throughout the Act. The definition was not conditioned by the requirement that the relevant services be paid or unpaid, or whether the provider was qualified or unqualified. The consideration that s 141B applies to attendant care services which may either be unpaid, or provided by an unqualified relative makes no difference to the meaning of the expression. The definition of “treatment” in s 42 extends to “the provision of attendant care services”; and it matters not whether they were paid, unpaid or provided by an unqualified relative. Section 58 accordingly applies to Griffiths v Kerkemeyer damages.

Decision about treatment

1. [35]

   It is well to bear in mind that the focus of the parties in this part of the argument is upon the definitions of “attendant care services” and “treatment”. Section 3 defines attendant care services in this way:

2. [36]

   In Kelly v the Queen [2004] HCA 12; 218 CLR 216 McHugh J said at [98]:

3. [37]

   In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] the plurality emphasised that the relevant provision being construed must be given a meaning “consistent with the language and purpose of all the provisions of the statute” (my emphasis). Their Honours stated “the process of construction must always begin by examining the context of the provision that is being construed” (footnotes omitted). However, the text itself must be given primacy. Context in the sense of historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text: Australian Education Union v Department of Education and Children’s Service [2012] HCA 3; 248 CLR 1 at 13 [26]. I think it apposite to bring to mind the restraint cautioned by Gleeson CJ in Carr v Western Australia [2007] HCA 47; 232 CLR 138 at 143:

4. [38]

   The central provisions critical to the determination of this case are the provisions of Part 3.4 of the Act conferring jurisdiction on MAS to resolve medical disputes. A medical dispute “means a disagreement or issue” to which Part 3.4 applies: s 57 of the Act. I will set s 58 out in full:

5. [39]

   So far as material s 61 provides:

6. [40]

   The question is whether a dispute about Griffiths v Kerkemeyer damages is a disagreement about treatment of the types referred to in s 58(1)(a) and (b). I have expressed the issue this way because an important part of the historical context of the Act is the continued operation of the enacted law and the common law relating to the assessment of damages: s 5(2)(a).

Griffiths v Kerkemeyer damages

1. [41]

   The general law of damages in personal injury cases in force before its enactment was abrogated by the Transport Accidents Compensation Act 1987 (NSW) and restored by s 6 Motor Accidents Act 1988 (NSW) which is in the following terms:

2. [42]

   The objects of the Act stated by s 5 include:

3. [43]

   As subsequent cases show, the decision in Griffiths v Kerkemeyer adopted as part of the common law in Australia the principle laid down by Megaw LJ in Donnelly v Joyce [1974] Q.B. 454 at 462 where a mother had given up work to nurse her severely disabled son. The defendant argued that absent payment for the mother’s services the loss was not recoverable as special damage; that is to say the plaintiff had suffered no loss. Megaw LJ said:

4. [44]

   In Van Gervan v Fenton [1992] HCA 54; 175 CLR 327 Mason CJ, Toohey and McHugh JJ said (at 332 – 3):

5. [45]

   An important point emphasised by Mr Daley is that the need which represents the plaintiff’s loss is a manifestation of common law general damages. Assessment of “the reasonable costs of satisfying that need being only a means of quantifying the damages to be awarded” and the distinction between special and general damages for the purpose of this head of claim “becomes unreal” (Griffiths by Stephen J at 179).

6. [46]

   In Kars v Kars [1996] HCA 37; 187 CLR 354 Dawson J, who had dissented in Van Gervan, said (at 360 – 1):

7. [47]

   It follows from all of this, in my judgment, that the provisions of s 141B merely regulate or modify the general law as to how the plaintiff’s loss is to be valued or measured. That section does not change the applicable principle nor the juristic nature of the plaintiff’s entitlement. This much is made clear by the provisions of s 141B(7) which is in the following terms:

Interpretation of s 58

1. [48]

   The point of principle that must be borne in mind is that s 141B provides the measure of damages payable for a loss which is not financial in nature, but rather is represented by the plaintiff’s accident created need. As the plurality accepted in CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 at 14 -15, that need is the loss of capacity “to render … to [herself]” the “services” the plaintiff would have performed for herself in her uninjured state. I would not regard that as “treatment” within any ordinary or natural meaning of the word.

2. [49]

   Turning then to the language of s 58(1)(a) and (b), as treatment is a defined term, applying Kelly, it is necessary to expand the language of its provisions by reading the words of the definition into them. Taking s 58(1)(a) as a starting point that paragraph reads as follows:

3. [50]

   One sees immediately that the emphasis is upon the provision of particular services rather than the plaintiff’s loss i.e. her incapacity to do what she would do for herself but for the injury. The phrase “reasonable and necessary” might be said to address need, but not directly. Reading the provision as a whole amplified by the definition, so far as it may relate to the circumstances, demonstrates that the emphasis is upon the assessment of the appropriateness of the provision of particular services, I repeat, not on any medical assessment of the plaintiff’s loss.

4. [51]

   The same, in my opinion, is true if one amplifies s 58(1)(b) by reference to the same adapted definition: the question becomes whether any such services relate to the injury caused by the motor accident. That question is whether the services relate to the injury; not whether the plaintiff’s loss of capacity relates to the injury.

5. [52]

   It is significant that not every medical question or issue that may arise for determination is within MAS’s jurisdiction. Only those expressed in s 58 are. What is also clear, unlike a dispute under s 131 about the degree of a claimant’s permanent impairment which is expressly and exclusively within MAS’s jurisdiction (ss 132-3 of the Act), the power to make the assessment or evaluation under s 141B is not conferred upon MAS. In this regard, it is important to bear in mind that s 141B is within Chapter 5 entitled Award of Damages and also within Part 5.4 which makes various miscellaneous provisions regulating or modifying, inter alia, rules of law relating to entitlement of damages (see ss 138 – 141), the quantum of damages, and the type of orders a court may make (s 143 – 5).

6. [53]

   In my view it is significant that s 141B(2) prescribes a different nexus between injury and compensation from either s 58(1)(a) or (b): neither reasonable and necessary, nor relates are utilised. Rather the test is:

7. [54]

   I am not persuaded that Mr Daley’s reliance upon the ejusdem generis rule is well made. As a grammatical aid to interpretation that “rule” applies when the general meaning of an expression is constrained by reference to specific surrounding language. As it was put in D.C. Pearce and R.S. Geddes Statutory Interpretation in Australia (75th ed, 2011, LexisNexis Butterworths) at p 135 [4.24] “it is another way of saying that words derive meaning from the context in which they appear”. However, the noscitur a sociis rule may assist. This rule was described by Spigelman CJ in Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at 391 as a “general principle of the law of interpretation” that the meaning of a word can be gathered from its associated words.

8. [55]

   Adopting this approach, although the definition of attendant care services where it appears in s 3 is capable of applying to any service falling within the broad definition whether paid or unpaid, s 42 provides a somewhat different, more focussed context. There, it appears in an exhaustive list (“means”) of matters, each of which would be provided by a qualified medical or paramedical professional, “whether or not at a hospital”. That is to say, in that context, “attendant care services” relate to such services professionally provided. Where such services have been, or are to be, professionally provided, they fall within the definition of medical assessment matters in s 58. Professionally provided attendant care services, do not engage the Griffiths v Kerkemeyer principle. Rather they fall within the broader principles of the law of damages relating to special damages. Voluntary care, and care provided by unqualified relatives are not “treatment” for the purpose of s 58.

9. [56]

   MAS fell into jurisdictional error by entertaining and deciding these matters, by providing the various certificates, because they lay wholly outside the limits of its function and powers: Craig v State of South Australia [1995] HCA 58; 184 CLR 163 at 177; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [71] – [72]. This occurred because it misconstrued the Act and thereby misconceived the nature of the function it was empowered to perform under it.

The narrower point

1. [57]

   I am not persuaded, reading Chapter 3 as a whole, that MAS’s powers in relation to the medical matters referred to in s 58(1)(a) and (b) are restricted to resolving disputes relevant to an insurer’s obligation to pay expenses under s 83 of the Act. Section 83 focuses upon “expenses” rather than “treatment”; although, doubtless the expenses described are in respect of treatment. And, as I have already said, it is notable that attendant care services expenses are only payable in respect of a claimant who is seriously injured and, in need of constant care over a long term; and then only when the services are provided by a person “with appropriate training”. I interpolate, however, that s 83(1)(d) provides some additional context which may support Mr Daley’s principal argument.

2. [58]

   My main reason for rejecting the narrow approach is that assessment certificates are “conclusive evidence as to the matters certified in any court proceedings or in assessment by a claims assessor in respect of the claim concerned”: s 61(2) of the Act. Accordingly, s 58(1)(a) and (b) have clear work to do beyond the operation of s 83. Indeed, having regard to the terms of s 61(2) it is not clear that an assessment certificate “binds” the insurer in the exercise of its obligations under s 83 as those obligations are not enforceable by court proceedings at the suit of the injured party: Stubbs v NRMA Insurance Limited (1997) 42 NSWLR 550; s 183 of the Act. It should also be pointed out that s 83 is found in Chapter 4, not Chapter 3 of the Act: Royal v Smurthwaite [2007] NSWCA 76; 47 MVR 401 [157] – [163] (these damages issues were not considered in a successful High Court Appeal: Roads & Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870).

Other considerations

1. [59]

   The approach I have adopted is consonant with the purpose and objects of the Act and of Part 3.4 in particular. When first enacted, s 58 identified five medical assessment matters, rather than the present three. In his second reading speech on the introduction to the Upper House of the Bill that became the Act, the Minister, (Mr Della Bosca) said:

2. [60]

   When introducing the Motor Accident Compensation Amendment (Medical Assessments) Act 2000 (NSW) the Minister also said:

3. [61]

   When introducing the Motor Accident Compensation Amendment (Claims and Dispute Resolution) Bill 2007 (NSW) the Minister also said:

4. [62]

   The objects of the Act stated in s 5 include encouraging “early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities”.

5. [63]

   The circumstances of the present case show that the medical assessment of disputes about Griffiths v Kerkemeyer entitlements are likely to entirely defeat the purpose of providing early, quick, objective decisions on medical issues, decided outside the court system at little expense. The insurer’s application runs over 120 pages from WF 30 to 150. The reply runs from WF 150 to 220. As I have already pointed out, the insurer suggested submitting a document covering 5 pages to the medical assessors which the officer of the authority was only able to whittle down to 12 questions over 2 pages. Six of those questions addressed the assessment of Ms Scott’s need as opposed to the putative treatment.

6. [64]

   The assessment process required the involvement of three medical assessors with different qualifications, each issuing two certificates. From lodgement of the application to the issue of the last certificate occupied a period of 5 months.

7. [65]

   These considerations strongly suggest that Griffiths v Kerkemeyer claims were not intended to be assessed in this manner. That is to say, the interpretation contended for by the insurer leads to a wholly unreasonable operation of Part 3.4 of the Act which defeats the legislative purpose to the extent to which it may be permissibly informed by the Minister’s statements to Parliament: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380.

8. [66]

   Although not argued, it also seems to me, that the giving of separate certificates about the same matters by different assessors is impermissible. The Act expressly permits a dispute to be referred to one or more medical assessors: s 62 of the Act. However, those assessors to whom a medical dispute is referred are to give a certificate as to the matters referred for assessment (my emphasis). The use of the indefinite article in this context suggests to me that the assessors are to issue a single certificate in which they agree. That this is so is reinforced by a consideration of s 61(10) making provision, inter alia, for the giving of a combined certificate collating the separate certificates of more than one assessor required to assess the degree of permanent impairment.

9. [67]

   I appreciate that other judges of this Division have proceeded on the basis that a Griffiths v Kerkemeyer dispute may be a medical assessment matter which can be referred to a medical assessor under s 60 of the Act: Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; 59 MVR 548 by Adams J; and Insurance Australia Group Ltd t/as NRMA Insurance Ltd v Motor Accidents Authority of NSW [2013] NSWSC 318; 63 MVR 203 per Harrison AsJ. However, I do not understand that the point raised by Mr Daley was argued in those cases. It is generally supportive of my approach that in Girgis (at [48]) Adams J said:

The procedural hurdles

1. [68]

   It is not necessary for me to deal with Mr Daley’s second line of attack, but lest I am wrong in my decision about his principal argument, it is appropriate that I set out my views at least briefly about what he termed the procedural hurdles.

2. [69]

   In this regard, Mr Daley focused principally upon what he identified as the decision of the officer of MAS who carried out the “allocation review” of the application referred to in the letter of 2nd July 2013 (WF 221) and upon the provisions of the Guidelines. In particular he pointed out guideline 2.2 which permits an officer of MAS to reject an application as not duly made if the officer is satisfied that the application does not establish that it relates to what is referred to as “a treatment dispute”, being the matters referred to in s 58(1)(a) and (b). He also pointed to guideline 8.2, requiring applications for treatment disputes to be made at an early time to promote the course of treatment and rehabilitation of the injured person. Guideline 8.3 requires the parties to have made “some attempt to resolve the specific treatment dispute in question” before assessment. Mr Daley argued that guideline 8.4 suggested that treatment disputes were to facilitate the observance by the insurer of its obligations under s 83 of the Act and certain requirements of the form of application are to the same effect.

3. [70]

   I accept that the guidelines are in the nature of delegated legislation. But I also accept Mr Robinson’s argument that the content of the guidelines do not govern the meaning of the Act.

4. [71]

   I also accept the argument of Mr Robinson that the “decision” of an officer of the authority allocating a dispute for assessment is not amenable to an order in the nature of certiorari for reasons discussed by Brennan CJ, Gaudron and Gummow J in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 at [21] – [23], as that purely ministerial act does not have “a discernible or apparent legal effect upon rights”. I accept the argument that, unlike decisions of the proper officer under s 62 of the Act, dealt with by the Court of Appeal in Rodger v De Gelder & Anor [2011] NSWCA 97; 80 NSWLR 594 at [70], the decision at the preliminary stage of allocation is not sufficiently connected with the decision of the medical assessor to affect the legal rights and obligations of the parties. It is worth bearing in mind that the decision-making requirement imposed by guideline 2.2 is to reject an application if the officer is satisfied that it does not establish that it relates to a treatment dispute, rather than to accept an application.

5. [72]

   I accept Mr Robinson’s argument that whether the procedural error results in invalidity is itself a question of statutory interpretation: Project Blue Sky at [91] – [93]. Learned Senior Counsel also referred to s 80 of the Interpretation Act 1987 (NSW). I am not satisfied that non-compliance with the procedural provisions of the guidelines, as such, is intended to invalidate any subsequent certificate. The guidelines provide merely administrative machinery. Strict or even substantial compliance was not intended as a condition of the validity of a medical assessment certificate given under the Act.

6. [73]

   To the extent to which the “decision” of 2nd July 2013 is impugned on the ground of inadequacy of reasons (cf Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480), I accept Mr Robinson’s submission that the officer of the authority performing a purely administrative task was not under a legal duty to provide reasons, and the principle established by the Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656 applies.

7. [74]

   In the course of oral argument, Mr Daley argued that the existence of a genuine dispute is a jurisdictional fact which the Court can decide for itself. (15.35T). Mr Robinson accepted that this is so (29.30T). Learned senior counsel accepted that the existence of a dispute within the meaning of s 60 was a condition precedent to the exercise of the power of medical assessment.

8. [75]

   A jurisdictional fact is “a criterion, the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”: Gedeon v NSW Crime Commission [2008] HCA 43; 236 CLR 120 at 139 [43]. A conclusion that a statutory condition is a jurisdictional fact is the end point of a process of statutory construction in which “all the normal rules of statutory construction apply”: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [39] by Spigelman CJ.

9. [76]

   I have no doubt that the existence of a medical dispute is a condition of the valid exercise of MAS’s power of assessment.

10. [77]

    Medical dispute is defined by s 57 of the Act as meaning “a disagreement or issue” to which Part 3.4 of the Act applies. Section 58 says that Part 3.4 “applies to a disagreement between a claimant and an insurer about” medical assessment matters. Part 3.4 “also applies to any issue arising about” a medical assessment matter “in proceedings before a court or in connection with the assessment of a claim by a claims assessor”: s 58(2). The provisions of Part 3.4 dealing with medical assessment, perhaps in contradistinction to the Victorian scheme, the subject of the High Court’s decision in Kocak, provide a form of dispute resolution by medical assessment, itself a form of neutral expert evaluation. As the portions of the second reading speeches referred to above make clear, medical assessment is provided for the resolution of the disputes. It is not the medical assessment matter which is referred for medical assessment, rather it is a disagreement about a medical assessment matter which “may be referred … for assessment” by “one or more medical assessors”: s 60 of the Act.

11. [78]

    There may be many areas of disagreement about medical matters that may arise in the context of a claim for damages for personal injury suffered in a motor accident. As I have stated above, only certain disagreements may be referred for assessment. Medical disputes are disagreements under s 58(1), and issues arising about medical assessment matters in court proceedings or claims assessments under Chapter 4, Part 4.4 of the Act: s 58(2).

12. [79]

    Ordinarily, whether such a genuine dispute exists will be obvious from the mere exchange of medical reports. If the claimant’s doctor assesses her permanent impairment at greater than 10 per cent, and an insurer’s doctor as less, there will be no room for doubt about the existence of a disagreement and little room to resolve it by negotiation. Things may not be so obvious in respect of treatment disputes. But the question of whether a dispute exists is not necessarily resolved by the position adopted by the parties medical advisors. The present case is somewhat unusual. Notably, no medical practitioner seemed to approach the question from a holistic point of view having regard to both the orthopaedic and psychiatric injuries. In general terms, Dr Bodel (WF 197), Dr Conrad (WF 201) and Dr Clarke (WF 212) support the existence of a need for domestic assistance. For the insurer, Dr Prior’s view is obscure. At WF 103 he accepts that her orthopaedic injuries “and her amotivation due to her depression” “impact” upon “her capacity to perform domestic chores and duties”. At WF 106 he said that Ms Scott “is not fit to perform duties as a cleaner/housekeeper as a result of her psychiatric diagnosis alone related to the motor vehicle accident”. It is therefore hard to follow the view expressed at WF 104 that Ms Scott does not require personal or domestic assistance as a result of the motor vehicle accident from the psychiatric perspective. Professor Ian Harris (WF 121) said:

13. [80]

    Reading this medical evidence as a whole, it is difficult to see where the dispute arises about some need for domestic assistance being reasonable and necessary and related to the accident. The question of assessment of any allowance in that regard under s 141B, forming part of the motor accident damages to be awarded, is quite another matter, and one which is not within MAS’s jurisdiction.

14. [81]

    In this context, the letters written by the insurer to Ms Scott’s solicitors take on particular significance.

15. [82]

    The existence of a medical dispute is a jurisdictional fact and the procedures for ascertaining the existence of that fact by MAS are set out in Chapter 8 of the Guidelines. As I have said, the application is required to be made “as soon as practicable after the treatment dispute arises”: Guideline 8.2. “The parties must have first made some attempt to resolve the specific treatment dispute in question before the dispute will be assessed by MAS” (My emphasis): Guideline 8.3. Guideline 8.4 requires “evidence from the parties to substantiate that … the claimant has requested specific treatment and the insurer disputes” the claimant’s entitlement. Viewed through the prism of the requirements of the guidelines, the correspondence from the insurer which I have set out above satisfies me that the insurer was doing no more than paying lip services to these procedural requirements. The letters are written with a view to engendering an impression in the mind of the reader that the guidelines had been complied with and a genuine dispute existed.

16. [83]

    In determining whether a dispute exists, the Court ought to take a practical and realistic approach. This includes the everyday experience of courts dealing with personal injury claims, including motor accident claims, that an entitlement to Griffiths v Kerkemeyer damages calculated in accordance with statutory provisions like s 141B of the Act is very, very rarely conceded. Even so, assuming that such a matter may be made the subject of a “treatment dispute”, contrary to my previous holding, that a relevant disagreement exists, must be objectively determined. This requires actual engagement of the parties, especially where liability is admitted. But the necessary content of the medical dispute is determined by the meaning of the Act rather than the guidelines.

17. [84]

    Notwithstanding the content of the Guidelines, as I have already said, I am not of the view that the provisions of s 58 and 60 are restricted to cases in which a specific request for payment for treatment has been made. Liability may be wholly disputed and yet a party may wish to avail him, her or itself of the provisions of s 58 to obtain conclusive proof whether specific treatment, say an operation, is reasonable and necessary and related to the injury caused by the motor accident. I repeat, s 61(2) does not in express terms apply to s 83.

18. [85]

    Having said that, in every case, it is necessary that the claim, which will usually be for expenditure for the particular treatment advanced, is seriously and maturely considered by the insurer, and rejected or disputed on grounds reasonably available. It is insufficient for the insurer to simply go through the motions of setting up the appearance of a dispute, as I am satisfied occurred here.

19. [86]

    It may not take much to show the existence of a genuine dispute, but the task will be harder if the party generating the application has simply gone through the motions.

20. [87]

    Assuming assessment of a s 141B dispute is available, I am not satisfied on the balance of probabilities that a genuine dispute existed in the present case at the time the insurer purported to refer the matter to MAS.

Necessary parties

1. [88]

   In addition to the insurer as first defendant, the plaintiff named the Motor Accidents Authority of New South Wales and each of the three medical assessors as defendants. For the reasons explained by Basten JA in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 (at [55]) it is “preferable to identify the Tribunal by its official designation, so that persons who may constitute the Tribunal if it is reconstituted will be bound”. (See also my decision in Ryder v Sundance Bakehouse [2015] NSWSC 526 (at [12])).

2. [89]

   As s 57A of the Act establishes the Motor Accidents Medical Assessment Service as “a unit”, in the circumstances of this case, it was sufficient to name that service as defendant in place of the second to fifth defendants. I will make an order correcting the record.

   1. (1)

      Under Rule 59.10 Uniform Civil Procedure Rules 2005, the time for commencing these proceedings is extended to 20th November 2014.

   2. (2)

      Amend the record so the only defendants are, and are described as, Insurance Australia Limited T/as NRMA Insurance as first defendant; and the Motor Accidents Medical Assessment Service as second defendant;

   3. (3)

      The legal effect of the assessment certificates given under s 61 Motor Accidents Compensation Act in MAS matter number 2013/01/1756 dated 27th August 2013; 2nd September 2013; and 21st November 2013 are quashed by an order in the nature of certiorari;

   4. (4)

      Prohibit the Motor Accidents Medical Assessment Service from taking any further steps in MAS matter no. 2013/01/1756;

   5. (5)

      The first defendant to pay the plaintiff’s costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed.