CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES [2010] NSWSC 633

New South Wales Supreme Court

CITATION : CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES [2010] NSWSC 633

HEARING DATE(S) : 10 December 2009

JUDGMENT DATE : 17 June 2010

JUDGMENT OF : Hulme J at 1

1.Set aside the decision of the Second Defendant dated 11 July 2008 in proceedings 2008/04/0463SC. DECISION : 2.That the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 to refer the Plaintiff's Application for Further Assessment of a Permanent Stabilisation of a Permanent Impairment Dispute, dated 8 January 2008 being annexure A to the affidavit of Vic Petrovich of 1 September 2009 and numbered 2008/04/0463SC, for further medical assessment according to law. 3. I reserve the question of costs.

Mirjana Crnobrnja (Plaintiff) PARTIES : Motor Accidents Authority of New South Wales (First Defendant) Josephine Redmond (Second Defendant) AAMI Limited (Third Defendant)

FILE NUMBER(S) : SC 30047/09

COUNSEL : Ms BK Nolan (Plaintiff) MA Robinson (Third Defendant)

NSW Compensation Lawyers SOLICITORS : I V Knight Crown Solicitor Moray & Agnew

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

RS HULME J File No: 030047/09 Thursday, 17 June 2010

MIRJANA CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NSW, Josephine REDMOND, and AAMI Limited

JUDGMENT 1 RS HULME J: By Summons filed on 8 July 2009 the above named Plaintiff seeks:- 1. An order in the nature of certiorari setting aside the decision of the Second Defendant, an officer of the Motor Accidents Authority NSW, dated 11 July 2008 on the basis the decision was vitiated by error on the face of the record and was of no effect. 2. An order in the nature of mandamus , or alternatively, an order pursuant to s65 of the Supreme Court Act 1970 (NSW) that the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 to refer the matter for further medical assessment according to law. 2 Particulars of the error referred to in the first prayer were:- (a) The Second Defendant overstepped her statutory function, misdirected herself and/or asked herself the wrong question and/or applied the wrong principle as to what was required of her under s63(3) of the Act and has thereby exceeded her jurisdiction; and/or (b) By failing to construe s63(3) of the Act correctly, the Second Defendant, so misdirected, formed an opinion not reasonably open to her under the Act. 3 The First and Second Defendants have filed submitting appearances. The Third Defendant opposes the relief sought. 4 The statutory scheme established by and under the Motor Accidents Compensation Act has been the subject of description in a number of decisions in this Court and the Court of Appeal including, recently, the decision of R A Hulme J in Pratap v Motor Accidents Authority of New South Wales and Ors [2009] NSWSC 1325. Accordingly, it is unnecessary for me to do more than refer briefly to its incidents. These include an assessment by a doctor of the degree of incapacity from which a person claiming to have been injured suffers, the provision of a certificate by the assessor as to the matters referred for assessment and inclusion in the certificate of the reasons for any finding. Guidelines have been laid down for the measurement or determination of any degree of incapacity. These Guidelines include:- The Motor Accidents Authority's Guidelines for the Assessment of the Degree of Permanent Impairment, of 1 October 2007 (hereinafter referred to as the "MAA Guidelines"); The American Medical Association's Guides to the Evaluation of Permanent Impairment (hereinafter referred to as the "AMA Guidelines"; and The Motor Accidents Authority's Medical Assessment Guidelines. 5 The assessment must be in terms of "Diagnosis-related estimates" (DREs) and matters that lead to a claimant being placed in a particular category are specified. Dr Truskett, the assessor in this case, placed the Plaintiff in the category DRE I. It is contended that this was the result of errors on his part and but for those errors he would have placed her in DRE II. Hence the Plaintiff's Application for Review that led to the decision of the Second Defendant – events contemplated by s63 of the Act which, so far as is presently relevant, provides:- "(1) A party to a medical dispute may apply to the Proper Officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) … (3) The Proper Officer of the Authority is to arrange for any such application to be referred to a panel of at least three medical assessors, but only if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application." 6 Some expansion, amplification or definition of, or matters to be taken into account by, the Proper Officer is provided by Chapter 10 of the Medical Assessment Guidelines to which I refer below. 7 The arguments presented to me also make it necessary to record those parts of the Guidelines as define the differences between DRE I and DRE II. As an indication of the specificity involved, I also record the exposition of DRE III. As amended by the MAA Guidelines, the AMA Guidelines lay down as the specification for these DRE Categories as follows:- DRE Lumbosascral Category 1 Description and Verification: The patient has no significant clinical findings, no muscle guarding, no documentable neurological impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.