Australia: No nonsense: Proper Officer asks right question when determining Application for Further Assessment

Rodger v De Gelder & Anor [2011] NSWCA 97
Last Updated: 28 April 2011
Article by Ian Jones

Judgment date: 20 April 2011. Rodger v De Gelder & Anor [2011] NSWCA 97. Supreme Court of New South Wales Court of Appeal1

In Brief

  • The Medical Assessment Guidelines should be construed in a practical, commonsense way. Clause 14.7 of the Medical Assessment Guidelines should be read consistent with the question raised by s 62 of the Motor Accidents Compensation Act as any other understanding of the provisions makes a nonsense of the process required to be undertaken in the determination by the Proper Officer of the referral for further assessment.
  • The Proper Officer when determining an Application under s 62 makes a decision that affects rights and a decision of the Proper Officer is amenable to an order in the nature of certiorari.
  • By participating in a further medical assessment or a review a party's conduct is not of a nature that could properly give rise to an inference that they have waived or abandoned a right to seek prerogative relief in relation to an earlier decision of the Proper Officer.


The first respondent was injured in a motor vehicle accident on 24 August 2005 when the vehicle driven by the appellant collided with the rear of the first respondent's vehicle. Liability was admitted by the appellant and the first respondent's claim proceeded on the basis of an assessment of damages only.

The first respondent claimed he sustained injuries to the thoracic and lumbar spine, and other injuries, in the motor vehicle accident. Three months after the motor vehicle accident the first respondent suffered an injury at work to his lower back when loading an air-conditioning unit into the back of a motor vehicle. In the year following the motor vehicle accident, the first respondent was diagnosed with osteoporosis.

The first respondent was initially assessed at the request of MAS by Dr Graham who determined that the first respondent's injuries had stabilised and the degree of whole person impairment was 20% for compression fractures of the thoracic spine. Further, Dr Graham found that the first respondent had recovered from any lower back injury sustained in the motor vehicle accident by the time that he had the work related accident on 30 November 2005.

Dr Graham's certificate was the subject of a Review Application and on 2 June 2008 a Review Panel revoked the certificate issued by Dr Graham, issuing a new certificate certifying that the first respondent had suffered injuries to his thoracic and lumbar spine caused by the motor vehicle accident and giving rise to a greater than 10% whole person impairment. While the Review Panel was satisfied that an error existed in Dr Graham's certificate, the Review Panel confirmed Dr Graham's assessment of whole person impairment.

The first respondent's claim came on for a CARS General Assessment on 12 September 2008. During the course of that assessment, the appellant, by its CTP insurer, applied for and was granted an adjournment to lodge a MAS Application for Further Assessment. This Application was based on the first respondent's evidence at the assessment conference regarding three previous motor vehicle accidents, with one of those accidents occurring on 23 August 2005, the day before the accident the subject of the claim.

In making the MAS Application for Further Assessment on 9 October 2008 the appellant also relied upon a report of Dr Maxwell which stated that he had never seen a compression fracture of the thoracic spine caused by a rear end collision.

The Proper Officer issued a letter to the appellant and to the first respondent on 28 November 2008 stating that the information supporting the Application for Further Assessment "may have a material effect on the outcome of the application". On that basis, the Application would be referred for further medical assessment of the dispute relating to permanent impairment of the spine.

On 2 December 2008 the Proper Officer advised the parties that a further assessment was to be undertaken by Dr Best. On 4 December 2008 the first respondent's solicitors advised MAS that the first respondent would not be attending the appointment with Dr Best. Further, it was stated that the first respondent intended to commence proceedings in the Supreme Court as there was no basis for the Application for Further Assessment. A draft Summons was enclosed with the solicitor's letter. However, the Summons was not filed and on 19 January 2009 the first respondent attended the further assessment with Dr Best.

On 30 January 2009 Dr Best issued a certificate stating that the degree of permanent impairment as a result of the injuries caused by the accident was not greater than 10%. Most notably, Dr Best found that the wedging of the body of the T5 and T6 vertebrae could be developmental, it could occur slowly and spontaneously where osteoporosis was present, or it could be related to compression injury producing compression fractures. Dr Best was satisfied that there was no evidence that the wedge deformity had been caused by a compression injury to the thoracic spine in the motor vehicle accident.

On 18 March 2009 the first respondent applied for a review of Dr Best's assessment and on the same day filed a Summons in the Supreme Court seeking declaratory and other orders by way of prerogative relief. The Application for a Review of the Further Assessment was dismissed by the Proper Officer.

Supreme Court Decision

The first respondent's Summons in the Supreme Court came on for Hearing before Davies J in October 2009 and Judgment was delivered on 18 December 2009. The Summons contended that the first respondent was entitled to an order in the nature of certiorari on the basis that the Proper Officer asked herself the wrong question under s 62.

Davies J considered that the question the Proper Officer asked was derived directly from the language used in clause 14.7 as reflected in the Proper Officer's letter to the parties dated 28 November 2008. Clause 14.7 can be contrasted with the wording of s 62(1A) which specifies that a matter may not be referred again for assessment on the grounds of additional relevant information unless the information "is capable of having a material effect on the outcome of the previous assessment". Clause 14.7 refers to "the outcome of the application" (emphasis added).

Davies J found that the Proper Officer asked herself the wrong question and made orders in the nature of certiorari, removing the determinations of the Proper Officer into the court and quashing those determinations. His Honour ordered that the matter be remitted to MAS to be re-determined.

Court of Appeal Decision

The appellant contended on appeal that Davies J erred in finding that the Proper Officer asked herself the wrong question and that his Honour erred in the exercise of his discretion in failing to have regard to the fact that the first respondent participated in the further assessment and sought a review of that assessment. The appeal was heard on 20 October 2010 and Judgment delivered on 20 April 2011. Beazley JA delivered the lead Judgment with McColl JA and Mcfarlan JA agreeing with her Honour's reasons.

While it was acknowledged by the appellant before Davies J that there was a difficulty with the language of clause 14.7 of the Guidelines in that it did not reflect the statutory language of s 62, the argument put forward by the appellant was that if the Proper Officer asked the wrong question, that was not sufficient for the grant of prerogative relief. Despite this, Beazley JA found that there was no restraint on the Court of Appeal in determining this issue as it had been raised before Davies J and the first respondent had made submissions in respect of whether there was any difference of substance between the language used in s 62 and clause 14.7 respectively.

Beazley JA noted that the construction of clause 14.7 applied by Davies J would operate strangely in the context of s 62 in that the task of the Proper Officer under clause 14.7 would be to dismiss the Application for referral if the additional information or deterioration in the condition would not have a material effect on the Application for referral. Beazley JA found that this circuitry of the construction tends strongly against that construction being correct.

Further, at paragraph 49 Beazley JA stated:

"The Guidelines should be construed in a practical, commonsense way. When it is understood that referrals for assessments and further assessments are made by application, it does no violence to clause 14.7 to read the word "application" in the phrase "outcome of the application" as a reference to the previous assessment. Indeed, any other understanding of the provision makes a nonsense of the process required to be undertaken in the determination of referral for further assessment".

Beazley JA went on to consider the terms of the letter to the parties from the Proper Officer dated 28 November 2008 and noted two telling aspects militating against the construction given to it by Davies J

  1. The letter refers expressly to the existence of other accidents not considered by a MAS Assessor and the consideration by the Proper Officer could only have been on the question whether the further information was capable of having a material effect on the previous assessment;
  2. The succeeding paragraphs of the letter are directed to the further assessment and would have been surplusage if the Proper Officer was not directing her attention to the question raised by s 62.

In relation to the role of the Proper Officer, Beazley JA did not accept the findings of Rothman J in Singh v Motor Accidents Authority of NSW2 of the task under s 62 being only procedural. The task of the Proper Officer involves making a decision that affects rights, as it is the outcome of the medical assessment that determines whether or not a person has an entitlement to damages for non-economic loss. Her Honour found that the decision of the Proper Officer is amenable to an order in the nature of certiorari.

The discretionary issue arose from the appellant arguing at trial before Davies J that even if the first respondent had made out his claim for prerogative relief, the court should refuse relief due to his failure to commence court proceedings on or shortly after 4 December 2008 as he intimated as was going to do but participated in the further assessment process and sought a review of that further assessment.

The Supreme Court, in exercising its supervisory jurisdiction, has a discretionary restraint where there are unexhausted appeal rights or review procedures. Once an internal appeal or review process has been exhausted, then subject to any relevant statute, the aggrieved party may move to challenge any excess of jurisdiction by way of an application for prerogatory relief. Accordingly, her Honour found that the appellant's reliance on the first respondent's election to engage in the further assessment was not a bar on discretionary grounds from obtaining prerogative relief; a party who participates in a further medical assessment or a review thereof has not by that fact alone waived or abandoned a right to seek prerogative relief, particularly where the processes mandated by the Motor Accidents Compensation Act are intended to provide a low cost and relatively expeditious means of recovering compensation.


The inconsistency in the words to be found in s 62 and clause 14.7 is to be read consistent with the question raised by s 62. A Proper Officer will not have asked the wrong question by reciting in the letter to the parties advising of the outcome of the allocation review the terms of clause 14.7. It is necessary to consider what the Proper Officer in fact did in determining the application by reference to the reasons given in the allocation letter.

The Court of Appeal has restored the role of the Proper Officer requiring him or her to act judicially and not purely procedurally in conducting an allocation review of a MAS Application for Further Assessment. The Proper Officer is now again amenable to certiorari or orders in the nature thereof, there being a judicial decision made by the Proper Officer for review by the Supreme Court.

Finally, where the processes mandated by the Motor Accidents Compensation Act are intended to provide a low cost and relatively expeditious means of recovering compensation, a party, by participating in a further medical assessment or a review, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary grounds. However, it is advisable for a party who may be considering seeking prerogative relief to give notice of a possible challenge to an earlier decision before participating in a further medical assessment or review.

1. Beazley JA, McColl JA and MacFarlan JA

2. Singh v Motor Accidents Authority of NSW [2002] NSWSC 550

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