Credits
Final compilation and analysis by: Gerry Tzortzatos
Building on Curwoods Case Notes by: Cherilyn Ribbons, Jennifer Casperson, Nathan Morehead
With valuable assistance from: Andrew Gorman , Peter Hunt, Ian Jones, Belinda Wightley, Jodi Norton, Philippe Paquet, Vanessa Jason, Laurinda Wellings, Andrew Parker
CONTENTS
PART 1
BACKGROUND
PARTY REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(a)
In Brief
Case Examples
Wilkie v Motor Accidents Authority of New South Wales and Anor [2007] NSWSC
Transport Accident Commission of Victoria v Motor Accidents Authority of New South Wales & Ors [2009] NSWSC 940
Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056
De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
Singh v Motor Accidents Authority of NSW [2010] NSWSC 550
PART 2
ASSESSOR/COURT REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(b)
In Brief
Case Examples
Bouveng v Bolton [2009] NSWDC 19
Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074
Chami v Motor Accidents Authority of New South Wales [2009] NSWSC 1358
Devic v Motor Accidents Authority of New South Wales [2009] NSWSC 1289
Motor Accidents Authority of NSW v Mills [2010] NSWCA 82
PART 3
APPLICATION FOR REVIEW SECTION 63
In Brief
Case Examples
McKee v Allianz Australia Insurance Limited [2008] NSWCA 163
Rahme v Bevan [2009] NSWSC 58
Pratap v Motor Accidents Authority of NSW and Ors [2009] NSWSC 1325
Sanhueza v AAMI Limited [2010] NSWSC 774
Graovac v Motor Accidents Authority [2010] NSWSC 938
Stojanovic v Motor Accidents Authority of NSW [2010] NSWSC 1090
Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWCA 253
PART 4
COURT REJECTION OF MAS CERTIFICATE SECTION 61(4)
In Brief
Case Examples
Darke v El Debal [2006] NSWCA 86
Towell v Schuetrumpe [2006] NSWDC 159
JUDICIAL REVIEW OF DECISION OF PROPER OFFICER OR CARS ASSESSOR
In Brief
Case Examples
Australian Associated Motor Insurers Ltd v Jessel [2007] NSWSC 1351
CONCLUSION
ASSESSOR / COURT REFERRAL FOR FURTHER ASSESSMENT SECTION 62(1)(b)
Claims Handling Tips
When urging a CARS Assessor to refer a claim back to MAS for Further Assessment under s 62(1)(b):
- Demonstrate the risk of injustice to the Insurer if a Further Assessment is not conducted
- Explain why the Assessor should refer the matter for Further Assessment under s 62(1)(b) even though MAS refused to allow a Further Assessment under s 62(1)(a)
- Consider whether the Insurer was denied procedural fairness in the original assessment; it's a valid ground for further assessment under s 62(1)(b)
- Prepare submissions as to how the outcome might be different if the matter is referred for further assessment, even though this is not a formal requirement under s 62(1)(b).
When considering a Supreme Court challenge to a decision by a CARS Assessor to refuse your application under s 62(1)(b):
- Consider whether the CARS Assessor has engaged in "an active intellectual process" when considering your submissions. Did he or she deal with the issues your raised?
- Consider whether the CARS Assessor has properly considered the material you relied upon in your application under s 62(1)(b).
In Brief
- A Court or Claims Assessor may consider an application by any party to exercise their discretion to refer a matter for Further Assessment under s 62(1)(b)
- A Court or Claims Assessor can refer a claimant for Further Assessment without a need for deterioration in the injury or additional relevant information
- A Court or Claims Assessor can refer a claimant for Further Assessment if they consider it would be unjust to one of the parties not to do so
- In deciding whether to refer a claimant for Further Assessment, a Court or Claims Assessor must consider any relevant material submitted to them by the parties
- Procedural fairness is one of the matters which a Court or Claims Assessor may have regard to in deciding whether to refer a matter for Further Assessment
- A medical assessment certificate is binding as to causation of permanent impairment
- A Court or Claims Assessor cannot bind a MAS Assessor with respect to causation of an injury.
Case Examples
Bouveng v Bolton [2009] NSWDC 19
- The claimant was assessed below the threshold by MAS Assessors with specialties in plastic surgery, neurology and psychiatry. The claimant commenced Court proceedings and applied to the Court to refer the claimant for Further Assessment.
- The Court decided to refer the matter for Further Assessment with an orthopaedic surgeon. The Court considered it was appropriate to exercise its discretion to refer the matter for further assessment if it is likely to result in a different outcome
Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074
- The claimant was assessed below the threshold by MAS. Some time later the claimant made an Application for Further Assessment on the basis of deterioration. The application was accepted but the claimant was again assessed below the threshold by a separate MAS Assessor. The claimant lodged an Application for General Assessment by CARS and submitted that the Claims Assessor should refer the matter for Further Assessment at MAS. The Claims Assessor declined to exercise his discretion in this regard in two separate decisions. The claimant filed a Summons in the Supreme Court seeking that the Assessor's decisions be set aside.
- The Court recognised that a Claims Assessor or a Court has an unfettered power to refer a matter for Further Assessment, pursuant to s 62(1)(b). There is no need for there to have been a deterioration of the injury or additional relevant information about the injury which is capable of having a material effect on the outcome of the prior assessment.
- The Court considered that, when exercising their discretion, it was appropriate for the Claims Assessor or Court to consider whether or not it would be unjust to one of the parties if the matter was not referred back for further assessment.
PLEASE NOTE: At the time of this paper, the decision in Trazivuk is the subject of an appeal to the Court of Appeal.
Chami v Motor Accidents Authority of New South Wales [2009] NSWSC 1358
- The claimant had undergone a number of MAS assessments and sought reviews of each but she remained below the threshold. The claimant filed an Application for General Assessment by CARS and submitted to the Claims Assessor that he should refer her matter for Further Assessment. The Claims Assessor declined to exercise his discretion on the grounds that the claimant should make an application to the Supreme Court pursuant to s 61(4). The claimant filed a Summons in the Supreme Court seeking that the Claims Assessor's decision be set aside.
- The Court quashed the Claims Assessor's decision and referred the matter for Further Assessment, finding that he fell into jurisdictional error by not considering the issue of procedural fairness when exercising his discretion to refuse to send the matter back to MAS for Further Assessment pursuant to s 62(1)(b).
- The Supreme Court confirmed that s 61(4) confers an express power on the Court to "reject" a certificate, a power which is distinct to the unfettered discretion of a Claims Assessor or a Court to refer a matter back to MAS pursuant to s 62(1)(b).
Devic v Motor Accidents Authority of New South Wales [2009] NSWSC 1289
- The claimant underwent a number of MAS assessments, none of which assessed him above the threshold. The claimant lodged an Application for Review which was rejected by the MAA. The claimant lodged an Application for General Assessment by CARS and submitted to the Claims Assessor that he should refer the matter for Further Assessment. The Claims Assessor declined to exercise his discretion on the basis that he agreed with the decision of the MAA in rejecting the Application for Review and the medical evidence suggested the claimant's condition predated the subject accident. The claimant filed a Summons on the Supreme Court seeking that the Claims Assessor's decision be set aside.
- The Court found the Claims Assessor did not err in the exercise of his discretion by considering the decision of the MAA as that decision contemplated the very issues that the Claims Assessor had to consider. However, the Court found that the Claims Assessor did err in the exercise of his discretion in that he did not consider the further contemporaneous medical evidence which was submitted by the claimant and what effect such evidence might have had on a MAS Assessor's assessment of claimant.
Motor Accidents Authority of NSW v Mills [2010] NSWCA 82
- The claimant alleged that he injured his back in the subject accident. The matter was referred to MAS where it was determined that the back injury did not arise out of the accident. Proceedings were commenced in the District Court and the Judge determined that the back injury was causally related to the accident. The Judge referred the claimant back to MAS for Further Assessment of the back injury and made orders restricting MAS from determining causation of the injuries. The MAA sought leave to intervene and vary the order for referral to MAS. The Judge dismissed the application to vary the order and the MAA filed a Summons in the Court of Appeal.
- The Court of Appeal quashed the trial Judge's decision, finding that neither a Court nor a Claims Assessor has the power to bind a Medical Assessor on the issue of causation.
- The Court of Appeal also held that a certificate under Pt 3.4 of the Act of the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is conclusive evidence of the degree of that permanent impairment and its causation by the motor accident.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.