Australia: Proper Officer's Role Procedural in Dealing with Reference for Further Medical Assessment under s 62

Last Updated: 27 June 2010
Article by Ian Jones

Judgment date: 28 May 2010

Singh v Motor Accidents Authority of NSW [2010] NSWSC 500

Supreme Court of New South Wales1

In Brief

  • The role contemplated by the Motor Accidents Compensation Act 1999 (MACA) for the Proper Officer is a procedural role and not an administrative or jurisdictional gateway through which the parties are required to pass.
  • The Proper Officer is not given, by the terms of MACA, a decision making jurisdiction as to whether the referral for a further medical assessment has been validly made, or, whether the conditions in s 62(1)(a) and s 62(1A) of the MACA have been satisfied.
  • The Motor Accidents Authority (MAA) (including the Proper Officer or a medical assessor to which a matter is referred under s 62) is amenable to prohibition, preventing the conduct of an assessment (or the referral to a medical assessor for the conduct of an assessment) where the jurisdictional pre-conditions have not been satisfied.
  • Likewise, the MAA (including the Proper Officer) would be amenable to mandamus to require the organisation of a further medical assessment by a medical assessor, in circumstances where the jurisdictional preconditions have been satisfied.

Background

In this matter the plaintiff sought orders to prevent a 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 to give rise to a not greater than 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 has no psychiatric injury caused by the accident on Page 2 of 4 7 January 2002. The plaintiff applied for, and was granted, 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 provided to Dr McClure, and certified that the plaintiff's psychological injury gives rise to a greater than 10% whole person impairment.

In October 2008 the compulsory third party insurer of the motor vehicle at fault, Allianz Australia Insurance Limited (Allianz), applied pursuant to s 62 of MACA for further assessment of the permanent impairment dispute. Allianz Australia Insurance Limited 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) issued a decision to refer the dispute relating to permanent impairment 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 Allianz's Application for Further Assessment.

Supreme Court Decision

The plaintiff's Summons came on for hearing in the Supreme Court before Justice Rothman on 16 April 2010.

His Honour resolved to determine on a preliminary basis whether orders in the nature of prerogative relief would issue in relation to a "decision" of the Proper Officer and further, whether any other appropriate order (in the nature of prerogative relief or otherwise) would issue, the nature of any or any other such order, and against whom, if anybody, such order would issue.

Justice Rothman handed down his judgment on these preliminary issues on 28 May 2010. In doing so, his Honour discussed the legislative provisions relevant to a medical assessment under s 62 of MACA and noted at paragraph 16 of his judgment that a medical assessment determines whether an injury is causally linked to a particular motor vehicle accident and, most relevantly for present purposes, the level of whole person impairment caused by the accident. However, in this context, his Honour was not determining the binding nature of a MAS assessment on a party to it but reinforcing the views earlier expressed by him in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056.

Justice Rothman considered the role of the Proper Officer and accepted the description by Justice Hoeben in Goodman v Motor Accident Authority of NSW & Anor [2009] NSWSC 875 that the role of the Proper Officer is to arrange the further medical assessment under s 62, which further medical assessment has, pursuant to MACA, already been referred. It is a procedural role not an administrative or jurisdictional gateway through which the parties are required to pass. Further, at paragraph 29 his Honour stated:

"...the terms of MACA require the Proper Officer to undertake a procedural task equivalent to, in effect, the listing of the further assessment before a medical assessor. The Proper Officer is not given, by the terms of MACA, a decision-making jurisdiction as to whether the referral for a further medical assessment has been validly made, or, whether the conditions in s 62(1)(a) and s 62(1A) of the MACA have been satisfied".

Before referring a matter for further medical assessment, the Proper Officer is required to be satisfied that the terms of MACA have been properly invoked. However, his Honour held that such a determination does not determine, authoritatively or otherwise, in a manner that binds the parties to the medical dispute the validity of the referral by the referring party. The referring party does not make an Application for a referral – it is the party that refers a matter for further medical assessment under s 62.

Accordingly, in considering the statutory task of the Proper Officer, his Honour stated that the Proper Officer is entitled to decide for himself or herself whether there has been a referral. That is, whether the statutory conditions for a referral have been satisfied. Once the Proper Officer has made this decision, the referral will either be listed for further medical assessment before a Medical Assessor or not.

At paragraph 41, Justice Rothman stated:

"On the view that I have taken of the role of the Proper Officer, the Proper Officer is not required to act judicially, is required to take a purely procedural step and does not, of herself or himself, make a decision that affects the rights of any of the parties. The procedural decision to organise a further medical assessment (or to refuse to organise such an assessment) is not effective to alter the rights of the parties, which are granted, or not granted, by the MACA, not the decision of the Proper Officer. The rights of the parties are conferred by the provisions of s 62(1) and s 62(1A) of MACA and not otherwise and, subject to the later comments in these reasons, those rights would be enforceable, regardless of the "decision" of the Proper Officer."

His Honour held that the procedural task undertaken by the Proper Officer is not amendable to certiorari or orders in the nature thereof, there being no judicial decision made by the Proper Officer for review by the Supreme Court.

However, his Honour's determination in relation to the decision of the Proper Officer does not affect other orders that might issue that determine the rights of the parties. To this extent, his Honour considered whether the conditions imposed by MACA on a referral for a further medical assessment are "jurisdictional facts".

Section 62(1A) requires the satisfaction of a pre-condition and that pre-condition is the objective fact of the deterioration or additional information that has a material effect on the outcome of the previous assessment. In his Honour's view, the objective existence of a deterioration of the injury and/or additional relevant information is the criterion that is necessary to enable a party to the medical dispute to refer the matter again for medical assessment and, if the criterion upon which the party relied is not capable, objectively, of having a material effect on the outcome of the previous assessment, that too would preclude a reference.

At paragraph 54, his Honour states:

"As a consequence, the existence, objectively, of a deterioration of the injury or, alternatively, additional relevant information about the injury, is a "jurisdictional fact" the non-existence of which precludes and/or invalidates any purported reference by a party to the medical dispute. Further, if the deterioration or additional information is not such as to be capable of having a material effect on the outcome of the previous assessment, that Page 4 of 4 too is a "jurisdictional fact", the absence of which would preclude and/or invalidate any reference for a medical re-assessment."

The effect of his Honour's findings in relation to a "jurisdictional fact" is that the MAA (including the Proper Officer or a medical assessor to which a matter is referred) is amenable to prohibition, preventing the conduct of an assessment (or the referral to a medical assessor for the conduct of an assessment) where there is no deterioration of the injury and/or additional relevant information that would have a material effect on the outcome of the previous assessment. The MAA (including the Proper Officer) would also be amenable to mandamus to require the organisation of a further medical assessment by a medical assessor in circumstances where the pre-conditions in s 62(1A) have been met.

Implications

A party can seek orders in the nature of prohibition or mandamus where the Proper Officer's allocation review of an Application for Further Medical Assessment is adverse to their interests provided they are able to establish that the objective criterion in s 62(1A) has or has not been met.

The seeking of such orders will involve the Supreme Court embarking on a merits review of the material relied upon by the party making the Application in order to establish whether the objective criterion has been met. That is, the Supreme Court will be asked to determine whether there is evidence of a deterioration of injury and/or additional relevant information by looking at and considering the documentation attached to an Application.

Justice Rothman reinforced the view expressed by him in Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056 that a medical assessment determines whether an injury is causally linked to a particular motor vehicle accident. However, the binding nature of findings of causation by a medical assessor on the parties to a dispute remains to be determined following the amendments to MACA on 1 October 2008.


1.Rothman J

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions