Court endorses previous decisions regarding conclusiveness of MAS determination on causation
Judgment date: 29 September 2010
Tchen v The Nominal Defendant  NSWCA 245
Court of Appeal1
- The supporting reasons of a medical assessment certificate from MAS are not ordinarily admissible as evidence.
- A medical assessment certificate is not conclusive evidence as to causation for the purposes of economic loss.
- Damages for economic loss should be adjusted to reflect the difficulty a claimant may
- have experienced in any event had they not been injured.
- A buffer for future commercial domestic assistance may be appropriate where it is possible a claimant may be unable to receive the required care on a gratuitous basis.
The claimant was injured in an accident on 23 June 2005 wherein the claimant was struck by an unidentified vehicle while crossing the road. The major issue at the trial was whether the accident caused or aggravated a pre-existing injury to the claimant's right knee. There was no dispute that the claimant suffered ongoing disability in his right knee which prevented him from working. The trial judge found there was no causal nexus between the accident and the ongoing disability in the right knee and awarded damages for past out-of-pocket expenses and past economic loss at approximately $25,000.
The claimant was 59 years old at the time of the accident and worked as a fabric cutter. He remained off work for about three months following the accident and returned to work on a part time basis performing light duties. The claimant's employment was terminated nine months later when his employer closed down the business.
The claimant had been assessed by MAS as falling below the threshold. The MAS assessor (who was not an orthopaedic surgeon) also made a finding that the right knee injury was not caused by the subject accident, based on some clinical notes showing the claimant suffered pain in his knee prior to the accident. The medical assessment certificate and reasons were tendered as evidence, although the MAS assessor did not attend the hearing for cross-examination.
Court of Appeal
The Court found the trial judge 'attributed excessive significance' on the entry in the claimant's clinical notes showing some pre-accident knee pain. The trial judge had ignored radiological evidence which showed significant differences in the right knee pathology after the accident. In addition the Court found that the trial judge ignored the claimant's evidence that the knee pain following the accident was worse than the knee pain prior to the accident.
The Court also rejected the trial judge's interpretation of the hospital clinical notes. The clinical notes recorded ' tenderness on palpation of knee joint bilaterally' which the trial judge construed to mean 'no tenderness' based on her own knowledge of the symbol ° and not based on any evidence before her.
Finally, the Court found that the trial judge overstated the 'materiality and cogency' of the medical assessment certificate in relation to the issue of causation. The Court noted the MAS assessor did not have access to an arthroscopy report which supported the contention that the right knee injury was related to the accident. Furthermore, the Court considered the MAS assessor did not provide adequate reasons regarding her findings on causation of the claimant's present knee condition. The Court also referred to case law which did not support the view that the medical assessment certificate was conclusive evidence as to causation for the purposes of economic loss. 2 In fact, the parties proceeded on the basis that 'nothing in the certificate was conclusive for present purposes'.
The Court found, on the balance of probabilities, the claimant's right knee injury was caused by the subject accident. In coming to that conclusion the Court preferred the evidence of the claimant's treating specialist whom he had consulted regarding his knee pain prior and subsequent to the accident and the opinions of the other doctors qualified by the claimant, who had access to the arthroscopy report.
The Court increased the damages awarded to the claimant by almost $50,000 to include further past economic loss, future out-of-pocket expenses, future economic loss and future paid domestic care. In calculating economic loss the Court reduced the claimant's damages by 90% to reflect the difficulty the claimant would have experienced in finding a new job, even if he were fully fit, having regard to his advanced age. 3 The Court also allowed a buffer for the possibility that the claimant may require domestic assistance in the future on a commercial basis.
he primary implication arising from this decision appears to be the Court's attitude regarding the conclusiveness of a medical assessment certificate in relation to causation outside of the sphere of non-economic loss. Although neither party made submissions nor did the Court make findings in this regard, the Court appeared to endorse previous decisions which found that a medical assessment certificate is not conclusive evidence as to causation for the purposes of economic loss.
Insurers should also be wary of relying solely on the opinions expressed in the reasons that form part of a medical assessment certificate as a claimant can seek to exclude the reasons from evidence given that the MAS assessors are not compellable witnesses.
Finally, insurers should be alert to applying the principles of Malec v JC Hutton in order to have damages for economic loss reduced where there is evidence to demonstrate a claimant would have experienced difficulty earning income regardless of their injury.
1. Giles JA, Basten JA and Sackville AJA
2. Pham v Shui  NSWCA 373 and Motor Accidents Authority (NSW) v Mills  NSWCA 82
3. As required by the rule in Malec v JC Hutton Pty Ltd  HCA 20
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