District Court New South Wales Medium Neutral Citation: Azzopardi v Mahajan [2023] NSWDC 406 Hearing dates: 21 September 2023 Date of orders: 4 October 2023 Decision date: 04 October 2023 Jurisdiction: Civil Before: Strathdee DCJ Decision: (1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture. (2) Costs of the motion be costs in the cause. Catchwords: MOTOR ACCIDENTS COMPENSATION – action for damages – non-economic loss – medical assessment of permanent impairment caused by motor accident – dispute as to degree of permanent impairment of injured person – application for referral to Personal Injury Commission of New South Wales for further medical assessment – whether medical assessor erred in assessment of permanent impairment – application for exercise of discretion under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Davis v Kent [2017] NSWCA 122 Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443 Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 Wood v Insurance Australia Group Limited t/as NRMA Insurance [2022] NSWSC 1290 Texts Cited: American Medical Association Guides (Fourth Edition) Category: Procedural rulings Parties: Jane Rita Azzopardi (Plaintiff) Rahul Mahajan (Defendant) Representation: Counsel: Mr A Canceri (for the Plaintiff) Mr A Bowen (for the Defendant) Solicitors: Galluzzo Lawyers (for the Plaintiff) Barry Nilsson (for the Defendant) File Number(s): 2023/181122 Publication restriction: Nil JUDGMENT 1. By Notice of Motion filed 20 June 2023, Jane Rita Azzopardi ('the plaintiff') moves the Court for the following orders: 1. Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of whole person impairment flowing from the said left sacral alar fracture. 2. That the costs of the motion be costs in the cause. 3. Further or other orders as the Court deems fit. 1. The plaintiff tendered the following: 1. Affidavit of Rosalie Galluzzo sworn 20 June 2023 (exhibit A on the motion). 2. Affidavit of Rosalie Galluzzo sworn 21 September 2023 (exhibit B on the motion). 3. Series of emails that generated Dr Buckley's reports (exhibit D on the motion). 1. The defendant read the Affidavit of Melinda Drew sworn 19 July 2023 (exhibit C on the motion). Background 1. On 20 December 2016, the plaintiff was involved in a very serious motor vehicle accident in Edmondson Park, New South Wales. A vehicle driven by Rahul Mahajan ('the defendant') collided with the side of the plaintiff's car causing the plaintiff to suffer personal injury ('the accident'). The plaintiff sustained multiple physical injuries and required her admission to Liverpool Hospital for approximately two weeks. 2. The defendant's insurer accepted liability for the accident. 3. The accident was one to which the provisions of the Motor Accidents Compensation Act 1999 (NSW) ('MACA') applied. Section 131 of the MACA provides 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 accident is greater than 10%. 4. There was (and remains) a dispute between the parties as to whether the plaintiff's permanent impairment resulting from the injuries caused by the accident exceeds 10%. 5. In accordance with part 3.4 of the MACA, the matter was referred to the Personal Injury Commission of New South Wales ('PIC') for medical assessment. 6. On 14 September 2019, Medical Assessor Cameron ('Dr Cameron') issued his certificate concerning the disagreement between the parties as to whether the plaintiff's physical injuries caused by the accident exceeded the 10% permanent impairment threshold imposed by s 131 of the MACA. Dr Cameron found that the plaintiff had sustained a total whole permanent impairment (WPI) of 5%, assigning 5% WPI to the fracture of the plaintiff's T12 vertebra. 7. The plaintiff qualified Stephen Buckley ('Dr Buckley') and received a report from him dated 20 September 2020 ('First Report') which was provided to Dr Berry for consideration in his assessment. 8. Pursuant to s 62(1)(a) of the MACA, the plaintiff applied for further medical assessment of her permanent impairment. The matter was referred to PIC Medical Assessor Berry ('Dr Berry'). Dr Berry issued his Certificate and Reasons on 9 November 2022, and determined that the plaintiff had sustained a total whole person impairment of 10%, assigning 5% WPI to the fracture of the plaintiff's T12 fracture and 5% WPI for the injury to the lumbar spine. 9. On 15 November 2022, Dr Berry issued a Further Combined Certificate which certified a Further Combined Certificate which certified that the plaintiff had sustained a combined permanent impairment of 10%. 10. The plaintiff subsequently applied to the PIC to have her damages assessed. 11. In preparation for the hearing of the matter in the PIC, the plaintiff's solicitor, Ms Rosalie Galluzzo ('Ms Galluzzo'), arranged for Dr Buckley to provide an updated medico-legal report. Dr Buckley provided his second report on 28 February 2023 ('Second Report'). 12. On 6 March 2023, Ms Galluzzo phoned Dr Buckley to discuss the Second Report. Ms Galluzzo followed up on that conversation by email and asked Dr Buckley to produce another report to summarise the issues they had canvassed on the phone (exhibit D). 13. Dr Buckley produced his third report on 13 March 2023 ('Third Report'). 14. The matter came before Member Macken of the PIC on 20 March 2023. Member Macken issued his Certificate of Determination on 12 April 2023. 15. The plaintiff did not accept Member Macken's determination and subsequently commenced proceedings in this Court by Statement of Claim filed 6 June 2023. 16. It is agreed between the parties that one of the plaintiff's injuries caused by the accident was a fracture to her left sacral alar, the issue is however whether the fracture to the plaintiff's left sacral alar was a displaced fracture or not. Relevant statutory provisions and case law 1. Pursuant to s 111 of the MACA a rehearing of a PIC Member's award in this Court precludes the plaintiff from adducing evidence in the Court proceedings that was not made available to the PIC unless it is "significant evidence" that the Court considers materially affected the assessment of the PIC at the claims assessment. 2. Medical assessment certificates issued by the PIC are conclusive evidence as to the matters certified in any court proceedings or in any assessment by the PIC in respect of a claim concerned: s 61(2) of the MACA. 3. Section 62(1)(a) provides that a matter referred for medical assessment may be referred again on one of more further occasions by any party to the medical dispute, but only on the grounds of deterioration of the injury or additional relevant information about the injury. The plaintiff successfully applied for further medical assessment under this provision, and what flowed was the assessment of Dr Berry. 4. This application is brought pursuant to s 62(1)(b) of the MACA. The relevant section provides: "62 Referral of a matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part— (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or the President." 1. This is the first occasion the plaintiff has made an application under s 62(1)(b), and I accept that the plaintiff is specifically invoking the discretion in s 62(1)(b) of the MACA to have the matter referred for further medical assessment. 2. The reference to "matter" in s 62(1)(b) is a reference to a matter referred for assessment under Part 3.4 of the MACA. The "medical assessment matters" which may be referred for assessment are specified in s 58 of the MACA. Relevantly, one of the matters is whether the degree if permanent of the injured person as a result of the injury caused by the motor accident is greater than 10% (see s 58(1)(d)). 3. The Courts have held that the discretion pursuant to s 62(1)(b) whilst unfettered is nonetheless limited by the scope of the instrument conferring it, and requires the exercise of the discretion under the MACA to be done in a way of best promoting the objects of the Act: Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 ('Trazivuk'). The objects of the Act are expressly defined in s 5 of the MACA, and include (at s 5B(1)(b)) that an object of the Act is to encourage "the early resolution of compensation claims". 4. Importantly, Trazivuk is authority for the proposition that in exercising that discretion, it is relevant for a Court or the President to consider whether there is a reasonable prospect that a further assessment will result in a change of outcome: see [111]-[117] of Handley JA's decision with which Young JA agreed as follows: "111 In any event I am unable, with respect, to discern any error in the assessor's view that there was no risk of injustice to the claimant unless there was "a reasonable prospect that the further assessment will result in a change in outcome". 112 This test is not materially different from that applied in Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141, 145-7. The High Court considered [at 145] that submissions by counsel for the plaintiff at the trial on the acceptability of a doctor's medico-legal opinion may have made a difference to the result (the first test) and therefore the Court could not find that a properly conducted trial could not possibly produce a different result (the second test). 113 The assessor's finding that the denial of procedural fairness had not affected Dr Menogue's result satisfied the first test in Stead's case. 114 The statutory scheme substitutes expert medical assessment for non expert assessment by a Judge. Litigants are apt to be disappointed by such assessments however made. The long established position with judicial assessments was summarised in Burrell v The Queen [2008] HCA 34, 238 CLR 218, 223 [15] where the Court said in the joint judgment of five judges: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." 115 In my judgment this principle is relevant to the exercise by a claims assessor of his discretion to order a further assessment. The same principle is relevant in the exercise of this Court's discretion to order a new trial. UCPR Pt 51.53(1) provides that the Court must not order a new trial "unless it appears … that some substantial wrong or miscarriage has been occasioned" by the error in the first trial. 116 This test does not differ in substance from that applied by the assessor when considering the risk of injustice to the claimant if a further assessment was not ordered. 117 In my judgment therefore the assessor's reasons for his September 2008 decision were correct, and in any event the error relied on was immaterial. Leave to appeal should be granted, the Court should dispense with the filing of the notice of appeal, but the appeal should be dismissed with costs." 1. The defendant refers my attention to the decision of the New South Wales Court of Appeal ('NSWCA') in Davis v Kent [2017] NSWCA 122 ('Davis'), and asserts that this authority is directly relevant to the present application before the Court, for the following reasons: 1. The applicant in the NSWCA proceedings had not sought a review of the MAS certificate pursuant to s 64 of the MACA, as in this application; 2. The NSWCA noted that the objects of the MACA regime were to encourage early resolution of compensation claims. However, as the matter was also before the Court, the overriding purpose pursuant to s 56 of the Civil Procedure Act 2005 (NSW) ('CPA') was a further determinative factor, relevant to the exercise of discretion; 3. Further the NSWCA held that the future reports in the possession of the applicant added little, if anything, to the information in the applicant's possession when the application was made to the Court for further assessment; and 4. The NSWCA held that in that circumstance the additional material could not explain the long delay in the application for reassessment. The defendant submits that this authority squarely responds to the present application, specifically in relation to the latter two reports of Dr Berry. 1. It must be noted that it is not the role of this Court to determine whether or not the plaintiff's fracture was in fact displaced. Rather, the plaintiff seeks that I exercise the discretion accorded to this Court in s 62(1)(b) of the MACA ('the discretion') to refer the matter back to the PIC for further medical assessment. Discussion 1. It is uncontroversial that the Fourth Edition of the American Medical Association Guides ('AMA4 Guides') applied to the assessment of the degree of permanent impairment resulting from the plaintiff's left sacral alar fracture. Section 3.4 of the AMA4 Guides (exhibit A at annexure F) provides that a healed fracture of the sacrum with displacement and without residual sign(s) is to be allocated 5% permanent impairment. 2. The issue in dispute is whether the plaintiff's left sacral alar fracture was displaced or not, as if it were to be so, it would come under 3.4 of the AMA4 Guides. It is clear from section 3.4 that a healed fracture of the sacrum with displacement and without residual sign(s) is to be allocated a 5% WPI. Accordingly, there is a factual issue as to whether the sacral alar fracture was displaced. 3. The practical effect of a finding that the plaintiff's left sacral alar fracture was displaced would be that the degree of the plaintiff's permanent impairment would increase to 15% and thereby surpass the 10% threshold prescribed by s 131 of the MACA, availing the plaintiff an opportunity to claim damages from the defendant including those for non-economic loss. 4. Dr Cameron and Dr Berry did not consider that the plaintiff's left sacral alar fracture was displaced and accordingly did not take that into account in making their assessments of the degree of the plaintiff's permanent impairment. 5. The plaintiff asserts that the evidence of Dr Buckley contained in his reports is capable of supporting a finding that the plaintiff's left sacral alar fracture was in fact displaced and therefore that the determinations reached by the PIC medical assessors were erroneous. 6. Dr Buckley provides the following as to the issue of whether the fracture was displaced: (exhibit A at annexure E) 'I would first note that the report of the CT scan, by the use of the language "There is no other… displaced pelvic fracture…", suggests their opinion that the fracture they have reported which is both "comminuted" and "impacted" is also "displaced". I would observe that in order to be "impacted" and "comminuted", there must logically be displacement of the parts of the fracture. Comminution is the "crumbling" at the site of the fracture, and impaction is the "squeezing together" of a fracture, both these points indicating the various pieces of bone related to the fracture are not in their original location, and are therefore "displaced". Both the language of the report and logic, indicate that the fractured sacral alar was indeed displaced.' 1. Counsel for the plaintiff submitted that in order to exercise the discretion under s 62(1)(b), I need only be satisfied that there is a reasonable prospect that if I were to refer the matter back to the PIC for further medical assessment, there will be a change in outcome reached by the medical assessor in that further assessment (per Trazivuk). Nevertheless I accept that such discretion should only be exercised for good reasons or where it would be unjust to do so, and note that Counsel for the defendant submits that in the present matter, the plaintiff has failed to make out either of those aspects. 2. Finally, Counsel for the plaintiff submits that the plaintiff has suffered significant compensable non-economic loss and that her damages for that head of loss would be substantial. Counsel for the plaintiff asserts, therefore, that a serious injustice will be visited upon the plaintiff if this Court refuses to exercise the discretion to refer her left sacral alar fracture back to the PIC for further assessment of permanent impairment. 3. The defendant contends that whilst the discretion accorded to this Court in s 62(1)(b) of the MACA is unfettered it is nonetheless limited by the scope of the instrument conferring it, and requires the exercise of the discretion under the MACA to be done in a way of best promoting the objects of the Act, as discussed at [26] above. 4. To support this contention, the defendant refers to the judgment of Rothman J in Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443 where at [36] his Honour said of the MACA: 'Plainly a purpose of the Act is to encourage an expeditious, inexpensive means of conducting a medical assessment. It is also to effect a speedy finalisation of any dispute between the parties. The final resolution of controversies between parties is an essential aspect of the exercise of judicial power and of a jurisdiction of this kind…' 1. The defendant submits that the plaintiff has not established that there are good grounds to exercise the discretion or that it would be unjust not to do so, particularly where the plaintiff did not seek a review pursuant to s 63 of the MACA within 30 days. The defendant says that the plaintiff simply seeks to reopen a matter already determined, and that any further referral to the PIC for another medical assessment would significantly delay the proceedings which is an outcome incompatible with the objects of the MACA. 2. In relation to the issue of delay, as raised by the defendant referring to Davis, I do not accept that there has been an inordinate delay. Counsel for the plaintiff submitted that in this case, the plaintiff has acted quickly to move this Court for an order that the discretion be exercised, observing that her Notice of Motion was filed 14 days after the commencement of proceedings in this Court. I accept that the refresher appointment with Dr Buckley made as a consequence of the plaintiff's solicitor acting prudently, so as to ensure updated medical opinion was available for the assessment of permanent impairment. Consideration 1. I accept the plaintiff's submission outlined at [36] that in order to exercise the discretion, I need only be satisfied that the evidence establishes a reasonable prospect that referral for further medical assessment will result in a change in outcome: Trazivuk at [111]. 2. I accept the defendant's submission outlined at [38] that whilst the discretion is unfettered, I ought exercise it in accordance with the object of the MACA found in s 5(1)(b). However, equally, I accept the plaintiff's submission in reply that I ought not segregate that object and should have regard to it in its entirety. 3. I accept that as there is no dispute as to causation in this matter, it is open to me to refer only the issue of degree of permanent impairment back to the PIC for further medical assessment under s 62(1)(b): see Wood v Insurance Australia Group t/as NRMA Insurance [2022] NSWSC 1290. 4. Although the decision of the NSWCA in Davis provides some assistance in its examination of the interaction between the overriding purpose in s 56 of the CPA and the discretion found in s 62(1)(b) of the MACA, I do not accept in the present matter that the plaintiff has been slow to act or otherwise offended the principles of the overriding purpose in s 56 of the CPA so as to impel me to refuse to exercise the discretion. 5. In my view, the plaintiff has provided in oral and written submissions a satisfactory explanation for not seeking a review under s 63 of the MACA and acted promptly following the receipt of Dr Buckley's Third Report to commence proceedings in this Court and initiate this application. Any delay on the part of the plaintiff has been of no real consequence and certainly cannot be compared to the delay that was the subject of contention in Davis. 6. That being the case, I reject the defendant's submission outlined above at [40] that a further PIC assessment would substantially delay these proceedings and therefore offend the object of the MACA in s 5(1)(b) or perhaps more generally, the overriding purpose in s 56 of the CPA. 7. I propose to grant the plaintiff's application. The following matters are relevant to my determination: 1. The evidence of Dr Buckley does to my mind produce a reasonable prospect that a further assessment by a PIC medical assessor would produce a change in outcome. Although perhaps not by itself capable of demonstrating that the fracture of the plaintiff's left sacral alar was displaced, I am of the view that there is a reasonable prospect that, in view of the opinions Dr Buckley expressed in his Third Report (particularly the assertion that Dr Berry failed to correctly assign 5% permanent impairment in accordance with AMA4), a PIC medical assessor with access to the complete suite of medical material would reach a different outcome to that reached by Dr Berry. 2. In my view, the defendant's analysis of Dr Buckley's evidence does not go to the heart of the issue in this application. The defendant's submissions seek to demonstrate that, on the evidence, the fracture was not displaced. That is not, with respect, what the discretion in s 62(1)(b) is about and in any event it is not within the remit of this Court to determine that medical question. Notwithstanding that Dr Buckley did not expressly diagnose a displaced fracture in his First Report or Second Report or identify a different condition to those identified, his opinion does to my mind create at least a reasonable prospect of a change in outcome if the matter were to be reassessed. 3. Given I have accepted (at [43]) that I ought have regard to the entirety (both limbs) of the object in s 5(1)(b) of the MACA, it must bear upon my decision to exercise the discretion. 1. The first limb: In my view, the orders the plaintiff seeks in this application go to the heart of the first limb of the object which is 'to provide compensation for compensable injuries sustained in motor accidents'. If I am satisfied (as I am) that there is a reasonable prospect that a further referral to the PIC for medical assessment would produce a different outcome, it could scarcely be said that by availing the plaintiff a further opportunity to have determined the issue of the extent to which her injuries are compensable, this Court is acting contrary to the objectives of the MACA. 2. The second limb: I have dealt in part at [47] with the defendant's submission about the second limb of the object: 'to encourage the early resolution of compensation claims'. It suffices to say that I am satisfied this is a matter where the plaintiff has not acted incompatibly with that limb and that my exercise of the discretion does not impermissibly infringe it. 1. Finally, I have had regard to the nature of the discretion considered by the NSWCA at [99] – [100] in Trazivuk where Handley AJA approved an exercise of the s 62(1)(b) discretion 'only… where there are good reasons so to do' or 'where it would be unjust not to do so, that is only where… there is a risk that an injustice will [otherwise] be visited on one of the parties'. For the reasons already canvassed in this judgment, there are in my view good reasons to exercise the discretion. Further, given the plaintiff has a potentially significant claim for non-economic loss at stake pending the final determination of her degree of permanent impairment resulting from the accident, I am concerned that there would be a risk of injustice being visited upon her were I to refuse to exercise the discretion. 1. It follows that I ought exercise the discretion accorded to this Court under s 62(1)(b) of the MACA to refer the plaintiff's left sacral alar fracture to the PIC for further assessment of the degree of the plaintiff's permanent impairment. 2. In writing this judgment, it came to my attention that prayer 1 on the Notice of Motion sought a 'medical assessment of the issue as to the degree of whole person impairment'. 3. My Tipstaff by email on 3 October 2023 made the following enquiry of the parties: Could the plaintiff kindly confirm that, noting the language of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff seeks that the issue of degree of permanent impairment (as opposed to whole person impairment - WPI) be referred to the Personal Injury Commission of New South Wales for further medical assessment. 1. The reply from the plaintiff's solicitor was: The plaintiff confirms that she seeks the issue of the degree of permanent impairment to be referred to the President of the Personal Injury Commission of New South Wales, in accordance with the wording of the Motor Accidents Compensation Act 1999 (NSW). 1. No further correspondence was received from any other party and I therefore am of the view that it is the issue of 'permanent impairment' that the plaintiff seeks to be referred to the President of the PIC. I have used that terminology and not WPI in this judgment. Orders 1. I make the following orders: 1. Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture. 2. Costs of the motion be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2023