Judgment date: 27 September 2010
Stojanovic v Motor Accidents Authority of NSW [2010] NSWSC 1090 Supreme Court of New South Wales 1
In Brief
- An Assessor's failure to record ranges of motion does not constitute a jurisdictional error where the relevant guidelines direct an Assessor as to the proper method of assessment.
- An Assessor has no duty to go beyond what is required by the relevant guidelines in selecting the content of a decision.
- Section 69 of the Supreme Court Act 1970 does not allow the Court to replace the decision of the Review Panel with a "better" decision.
Background
The plaintiff sought judicial relief, pursuant to s 69 of the Supreme Court Act 1970, in the form of a writ of certiorari (quashing of the decision).
MAS Assessor Schutz issued a certificate on 5 March 2009 assessing the plaintiff's impairment as less than10% WPI. The MAS Proper Officer referred the application to the Review Panel. MAS wrote to the plaintiff's solicitor asking whether an examination of the plaintiff by the Review Panel was indicated. The plaintiff's solicitor did not respond.
The plaintiff sought judicial review of both certificates and then ultimately the quashing of both certificates (writ of certiorari).
Grounds for Application
The grounds of review were as follows:
- The decision of Assessor Schutz was invalid because the contents of the decision breached the rules of procedural fairness because the Assessor failed to give adequate reasons for his decision resulting in an error of law on the face of the record.
- Assessor Schutz failed to assess the plaintiff in accordance with the methodology made mandatory by the Motor Accidents Compensation Act 1999 (Act).
- Thirdly, the Review Panel erred as it did not conduct its own examination of the plaintiff, and relied on the facts as found by the Assessor, relied on the reasoning of the Assessor, and therefore purportedly failed to cure the errors in Assessor Schutz's original decision.
Summary of Decision
Ultimately, the Court found that the plaintiff's application for Judicial Review failed on the basis that neither the Assessor nor the Review Panel had fallen into jurisdictional error. The original decision made by the Assessor did not fail to meet the requirements constituting a decision. Therefore, there was nothing for the Review Panel to cure.
Method of Assessment
Whether or nor Assessor Schutz had fallen into error turned on whether or not he had assessed the plaintiff in accordance with the methodology set out in the MAA Permanent Impairment Guidelines (Guidelines).
Assessor Schutz was asked to assess the cervical and lumbar spines.
The Guidelines, issued pursuant to s 44(1)(c) of the Act, provide the relevant methodology for interpreting the AMAIV Guides.
On assessment of the plaintiff's cervical spine, Assessor Schutz observed that:
It was the plaintiff's contention that because the Assessor gave inadequate reasons, such as these, the decision should be set aside, and as the Review Panel did not conduct an examination of the plaintiff, its decision was also infected by the approach of the Assessor.
The plaintiff argued that, by the Assessor's decision to "merely recite the relevant principles" of the DRE category, he constructively failed to exercise his power pursuant to s 61 of the Act.
Acquiescence & Delay
Following the Assessor's certificate, the plaintiff lodged a MAS Review Application. The insurer argued that because the plaintiff had not sought to question the legal validity of the Assessor's decision at that point and opted for a Review Panel Application, the plaintiff had acquiesced to the conduct of the Assessor.
Her Honour noted that had the plaintiff approached the Court for judicial review without seeking a Review first, the Court would have refused to entertain the Application on the basis that there was a more suitable remedy available, that being a review by the Review Panel. Her Honour rejected the insurer's submission.
No Examination
The insurer also asserted that the plaintiff could not complain that she was not examined by the Review Panel when her solicitors had failed to response to the Review Panel's letter. Her Honour agreed with the reasoning, however it was ultimately found to be of very little relevance.
The Review Panel, on consideration of Assessor Schutz's reasons, considered that he had adequately examined the cervical spine and clearly identified there was no asymmetry of the range of motion. It was not considered necessary for the Assessor to have recorded actual measures of the range of motion. Therefore it was not necessary to examine the plaintiff.
Counsel for the plaintiff asserted that it was not correct to presume, as the Review Panel did, that just because the assessment was carried out by a medical assessor exercising proper skill and judgement it was correct, and therefore the Review Panel's failure to examine the plaintiff did not cure the alleged errors in the original assessment.
Her Honour rejected this submission on the basis that the Assessor had complied with the correct methodology. Her Honour concluded that:
Her Honour found that the Application for Judicial Review failed. An order for the plaintiff to pay the fourth defendant's costs (the insurer) as agreed or assessed was made.
Implications
This case confirms that an Assessor's duty is outlined in the relevant legislation and Guidelines.
An Assessor's duty is discharged when he/she has prepared a report following the methodology set out in the Guidelines. There is some allowance for "clinical judgement," however the notion of procedural fairness, as a common law principle, does not create any jurisdictional error for which there can be a remedy, where the proper method of assessment is codified and there is no option for an applicant to review on the merits.
1. Harrison ASJ
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