Supreme Court New South Wales Medium Neutral Citation: McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434 Hearing dates: 25 September 2014 Decision date: 17 April 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The decision of the proper officer of the Medical Assessment Service of 25 March 2014 to refer the plaintiff for further medical assessment is declared invalid. (2) The second defendant must pay the costs of the plaintiff of the proceedings before me. Catchwords: ADMINISTRATIVE LAW – judicial review – decision of the proper officer of the Motor Accidents Authority – whether the proper officer misinterpreted the phrase "additional relevant information" contained in s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 58, 60, 62(1)(a), 63, 131 Cases Cited: QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 Category: Principal judgment Parties: Deslee Margaret McCosker (Plaintiff) Motor Accidents Authority of New South Wales (First Defendant) IAG Limited t/as NRMA Insurance (Second Defendant) Representation: Counsel: M Robinson SC (Plaintiff) J Gumbert (Plaintiff) J Poulos QC (Second Defendant) Z Heger (Second Defendant) Solicitors: Colin Daley Quinn Solicitors (Plaintiff) Sparke Helmore Lawyers (Second Defendant) File Number(s): 2014/140140 Judgment 1. 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. 2. 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. Chronological Background 1. 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. 2. 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. 3. On 14 December 2012, Assessor Baldwin certified that the plaintiff's lumbar scarring and disfigurement resulted in a permanent impairment of 2%. 4. 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%. 5. 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. 6. 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). 7. 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. 8. 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. 9. 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. 10. 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". The impugned decision and the reasons given for it 1. 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: The Insurer seeks a further assessment of the claimant's physical injuries on the basis that there is new additional relevant information regarding the injury which is capable of altering the outcome of the previous assessments by Assessor Kenna and Assessor Baldwin. … The Insurer also relies on the handwritten notes of Mr Robert Schwager however the claimant raises the decision in Singh v Motor Accidents Authority of NSW (No 2) NSWSC 1443, noting the Insurer was in possession of these notes since at least 20 February 2009. They also note the Insurer was also in possession of the clinical records of Griffith Dental & Medical Centre since 2008, the Caringbah Medical and Dental Centre and Dr Riddle since March 2009, prior to the previous MAS Assessments. Therefore, I confirm these reports and clinical notes cannot be considered as new information for the purpose of my decision. … Further additional documentation relied upon by the Insurer include the medical report of Mr Robert Schwager, chiropractor, dated 15 March 2013 who advises the claimant consulted his practice on a number of occasions over the years prior to the subject motor vehicle accident. These consultations were for treatment of injuries or pain sustained to the neck and lower back. Additionally, the Insurer relies on the report of Dr Paul Spira dated 2 December 2013 who, after reviewing the additional documentation relied upon by the Insurer, formed the opinion that the claimant only sustained a minor soft tissue trauma in the subject motor vehicle accident. The reports of Mr Schwager and Dr Paul Spira, both of which post date the previous MAS Assessment, contain information that was not before the previous MAS Assessors and therefore can be regarded as new information. I note that although Dr Spira did not re-examine the claimant for the purpose of his report dated 2 December 2013, he did have before him considerable new information that was not considered by the previous MAS Assessors. I therefore consider his report to be additional relevant information as opposed to just a difference of opinion. The additional relevant information appears to provide evidence of a significant pre-accident spinal condition, which is contrary to the history taken by the MAS Assessors due to the claimant's failure to disclose this history to them. The Insurer submits that this provision of a pre-existing condition could alter the outcome of the previous assessment by assessing the lumbar spine injury (previously assessed at 27%, inclusive of lumbar spine scarring) as not causally related to the motor vehicle accident and therefore assessing the claimant's whole person permanent impairment as not greater than 10%. The claimant submits the previous MAS Assessors were aware of the claimant's pre MVA low back symptoms as they were noted in the Griffith Base Hospital Emergency Department clinical notes. The certificate of MAS Assessor Maxwell dated 19 October 2010 acknowledges in the history paragraph that the claimant 'stated that she had previously seen the chiropractor for "back health" every 3 months', however the Insurer advises that the history pertaining to the extent of the pre-existing lumbar spine injury was not provided to the MAS Assessors. The application is based on additional relevant information about the injury. I am satisfied that the deterioration of the injury or the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by s 62(1A) of the Motor Accidents Compensation Act 1999. I acknowledge the report of Dr Schwager dated 15 March 2013 and Dr Spira dated 2 December 2013, provide additional relevant information that was not before the previous MAS Assessors as evidence of a longstanding pre-existing spinal injury. I note the provision of information pertaining to the pre-existing lumbar spine condition may alter the outcome of the previous assessment noting the MAS Assessor may determine the lumbar spine injury (previously assessed at 27%, inclusive of lumbar spine scarring) was not entirely causally related to the motor vehicle accident and therefore may alter the outcome from greater than 10% whole person impairment to not greater than 10% whole person impairment. Relevant legislation 1. It is not necessary to set out anything beyond the pertinent portion of the Act: 62 Referral of 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 claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. … Submissions of the plaintiff 1. 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. 2. 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. 3. 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. 4. 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". 5. 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. 6. 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. Submissions of the defendant 1. In response, senior counsel for the defendant submitted that there was no error of law committed by the proper officer. 2. 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. 3. 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. 4. 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. 5. 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. Preliminary determinations 1. It is necessary to decide some preliminary and factual matters before resolving this dispute. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. Approach to my function 1. 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]: Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this Court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide." [emphasis added] Discussion of Singh (No 2) 1. 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. 2. 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%. 3. 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. 4. 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. 5. 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. 6. 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: [45] Plainly, as already stated, the legislature intends an informal resolution of medical disputes, which is as expeditious and inexpensive as possible, and for that resolution to be performed by the specialist (and expert) panels. There is an appeal process to experts. Such a purpose would be defeated, if the objective existence of deterioration (for example) were required to be decided by this court. More importantly, for present purposes, such a purpose would be defeated if "additional relevant information" included every medical opinion commissioned by a party: see Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [43] per Davies J. I respectfully agree with his Honour. There would never be an end to the controversy. … [47] It cannot be said that either issue addressed by Dr Selwyn Smith was not before the Review Panel. However, Dr Selwyn Smith's opinion was based on the DVD and surveillance report. An opinion on an issue already canvassed is not, of itself, additional relevant information. If it were otherwise, and there was a resulting re-assessment, Ms Singh could obtain a further report and insist on another assessment. In some instances, a further medical report may be additional relevant information, e.g. for a back injury, an opinion based on an MRI not previously available: see, by way of example, the facts in Singler v Feruson [2010] NSWCA 325. But in such circumstances, it is the MRI that is the additional relevant information. The opinion of Dr Selwyn Smith is not information additional to that upon which the extant certificate was based. … [52] In other words, does a party to a medical dispute under the Act have the ability to keep to itself information, not rely upon it, and later decide to use it as a ground for further assessment? Such a capacity would clearly be inconsistent with the most expeditious determination of all the issues. It would also be inconsistent with the finalisation of matters: see Burrell, supra, and Trazivuk, supra. But if the wording of the provision permitted it, then such goals must give way. [53] Ultimately, the issue depends on the determination of the issue: to whom must the material be additional? It seems that the preferable construction, consistent with the purposes of the Act, is that the information must be additional to the party relying on it as a ground for further assessment, being the party referring the matter for further assessment under s 62(1)(a) of the Act. In that way, the cooperative approach required of the parties by the Act is facilitated and the purposes of the Act achieved. Any other construction, as already stated, would be inconsistent with those purposes and with that approach. … [60] The DVD and report were plainly available to Allianz [the defendant] at the time of the Review and extant assessment, and therefore, the DVD and report cannot be a "ground…of additional relevant information" available to Allianz [the defendant]. The information is not additional to Allianz [the defendant]. 1. 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. 2. 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. 3. 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. Determination 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. There is no basis on which costs should not follow the event. Orders 1. The decision of the proper officer of the Medical Assessment Service of 25 March 2014 to refer the plaintiff for further medical assessment is declared invalid. 2. The second defendant must pay the costs of the plaintiff of the proceedings before me. ********** 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: 17 April 2015