Judgment date: 16 December 2010

Singh v Motor Accidents Authority of NSW (No.2) [2010] NSWSC 1443

Supreme Court of NSW1

In Brief

  • The court determined that s 62(1)(a) of the Motor Accidents Compensation Act 1999 (MACA), dealing with "additional relevant information about the injury", must be construed by reference to the objects of the Act, namely to facilitate the early resolution of claims and the need for parties to co-operate.
  • The court determined that when a party makes an application for further assessment under s 62(1)(a), the information relied upon must be "additional" to the party relying on that information.
  • Therefore, even if the information relied upon by the party making the application has not previously been seen by the opposing party or a MAS Assessor, if it is not "additional" to the party making the application, it does not fall within the scope of s 62(1)(a).


Background

In this matter the plaintiff sought orders to prevent further medical assessment of an alleged psychological injury sustained in an accident on 7 January 2002.

The plaintiff claimed to have suffered physical and psychological injuries in a rear end collision at Kogarah Bay. Physical injuries to her neck, back, left foot and jaw were alleged, together with a psychological injury in the form of a major depression with psychotic features. The plaintiff's physical injuries were assessed below the 10% whole person impairment.

The plaintiff's alleged psychological injuries were assessed by Dr McClure on 20 February 2008. Dr McClure found that the plaintiff had no psychiatric injury caused by the accident on 7 January 2002. The plaintiff successfully applied for a review of Dr McClure's assessment by a Review Panel under s 63 of MACA. The review panel conducted a review on the papers on 4 July 2008, the plaintiff being a resident of New Zealand. The review panel disagreed with Dr McClure's opinion as to causation. The Review Panel assessed whole person impairment largely based on the history provided by the plaintiff to Dr McClure and certified that the plaintiff's psychological injury exceeded 10% WPI.

In October 2008 the compulsory third party insurer of the motor vehicle at fault applied for a further assessment under s 62(1)(b). The insurer relied upon surveillance footage of the plaintiff and reports of Dr Smith, Psychiatrist, in lodging the Application.

On 9 March 2009 the Proper Officer of the Medical Assessment Service (MAS) decided to refer the permanent impairment dispute for further medical assessment. In light of the Proper Officer's decision, the plaintiff filed a Summons in the Administrative Law Division of the Supreme Court seeking to prevent the Proper Officer, or any other delegate of the MAA, from taking any further step in appointing a Medical Assessor to assess the insurer's Application for Further Assessment.

Supreme Court Decision

The plaintiff's Summons was heard by Justice Rothman on 16 April 2010 and 25 June 2010.

His Honour handed down his decision on 16 December 2010. In construing s 62(1)(b), Rothman J focussed on the objects of the Act, such as early resolution of the claim and the need for the parties to co-operate.

At paragraph 53 Justice Rothman stated:

"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 co-operative 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".


His Honour noted that the insurer had in their possession the DVD surveillance footage, and the reports of Dr Smith, prior to the Review Panel being convened. His Honour noted that should the insurer have chosen to do so they could have made available the DVD footage and report of Dr Smith to the members of the Review Panel.

Therefore, his Honour concluded that as the DVD and surveillance report were available to the insurer at the time of the review, the material could not be characterised as additional relevant information for the purposes of s 62(1)(a). His Honour noted that this information may have been additional information to the MAS Assessors and the plaintiff, however it was not new to the insurer.

His Honour determined that the reports of Dr Smith were also not additional relevant information as they did not address any issue (as distinct from information) which had not already been assessed by the MAS Assessors.

His Honour noted at paragraph 47:

"An opinion on an issue already canvassed is not, of itself, additional relevant information".


Implications

When parties are making an Application for Further Assessment pursuant to s 62(1)(a) they will need to consider whether or not the additional relevant information is new to them, and not just new to the opposing party or MAS.

Both insurers and claimants will now need to ensure that all documents in their possession which they choose to rely upon, including surveillance footage, is made available to the MAS Assessor at the time of the assessment or to members of a Review Panel. Parties need to be aware that should they attempt to rely on material which they have previously withheld serving, in order to seek a Further Assessment, the application will not be accepted.

1 Rothman J

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