- A party wishing to challenge the Proper Officer’s decision to allow a Further Assessment pursuant to s 62 should bring its administrative law challenge before the further assessment takes place.
- A party wishing to challenge a MAS assessment should utilize the review procedure in s 63 before proceeding to the Supreme Court.
- The Proper Officer is not required to give reasons for a decision allowing an Application for Further Assessment pursuant to s 62.
- Section 62 does not limit "additional relevant information" to information showing a deterioration in the Claimant’s condition; the section also contemplates information evidencing an improvement.
The NSW Supreme Court handed down its Decision in Wilkie v Motor Accidents Authority on 4 October 2007.
The Plaintiff was involved in a motor accident on 30 September 2001.
On 3 June 2005, a MAS assessor assessed the Claimant’s permanent impairment at 34%.
Following the MAS assessment, the Insurer arranged for the Claimant to be examined by Dr Lim. The Insurer then used Dr Lim’s report to support an Application for Further Assessment pursuant to s 62 of the Motor Accidents Act 1999.
On 15 June 2006, the Proper Officer wrote to the parties advising that the Application had been allowed. A further assessment was subsequent conducted by Dr James McLeod who found 5% WPI.
The Plaintiff applied to the Supreme Court to set aside both the Proper Officer’s decision and the Further Assessment.
At the outset, Malpass AJ refused the Plaintiff’s application upon discretionary grounds.
His Honour held that the relief sought by the Plaintiff should not be granted in circumstances where the Plaintiff did not challenge the Proper Officer’s decision prior to the Further Assessment being conducted and in circumstances where the Plaintiff did not challenge the result of the Further Assessment through the Review process in s 63.
Specifically, his Honour held at paragraphs 27 to 29:
27 It seems to me that these proceedings can be disposed of by having regard to discretionary considerations. The plaintiff stood by and allowed the further assessment to be made. She did not decide to take action in respect of her complaints until after she had received a result which brought about a substantial reduction in the assessment of the whole person impairment. By operation of statute, the Certificate of the second Assessor prevailed over its predecessor. She had an adequate alternative statutory remedy (by way of review to a Review Panel pursuant to s63) to challenge the further assessment. Rather than pursue the statutory remedy, she has come to this Court. In the circumstances, I do not consider that the Court should exercise the discretionary power that it has in her favour (see, inter alia, Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501).
"28 The alternative statutory remedy was one that would have offered her quicker determination. It could have been brought immediately following the decision of the second Assessor and the review may have been concluded well before the bringing of these proceedings (there was in fact a delay of about five months before the plaintiff brought these proceedings). A remedy by way of judicial review may still have been available to her in the event that she was unhappy with a decision from the Review Panel.
"29 Further, it seems to me that the review process was a more satisfactory remedy. The complaints of the plaintiff concerning the second assessment involved allegations of error in the assessment process and concerned, inter alia, matters which were dependant upon particular or technical knowledge of medical specialists (including whether or not the Medical Assessment Guidelines had been met). I shall briefly mention some of these matters in due course."
Notwithstanding dismissing the Application on these discretionary grounds, Malpass AJ proceeded to hold that the grounds relied upon by the Plaintiff also failed.
Firstly, contrary to the Plaintiff’s contention, his Honour held that there was no obligation on the Proper Officer to give reasons for the decision to allow the Application for Further Assessment. Specifically, Malpass AJ stated at paragraphs 35 and 36:
"35 I have earlier set out clauses 8.4 and 8.5 of the Medical Assessment Guidelines. It seems to me that these provisions evince a clear intention that the Proper Officer is not obliged to give reasons where a decision is made to refer a matter for further assessment (a notice setting out brief reasons for the decision is required only where the application is refused).
"36 For all these reasons, I consider that the Proper Officer was not obliged to give reasons for her decision."
Secondly, Malpass AJ rejected the argument that a matter could only be referred for Further Assessment under s 62 where the "additional relevant information" evidenced a "deterioration" in the Claimant’s condition. Specifically, his Honour held at paragraph 40:
"40 Accordingly, I am of the view that the legislature had in mind the providing of two separate and alternative grounds on which referral for a further assessment may be made. One concerns deterioration of the injury and the other concerns additional relevant information about it. The language of the latter is cast in the most general terms."
Given these reasons, Malpass AJ refused the Application.
The most interesting aspect of Wilkie is Malpass AJ’s decision to refuse the Application on discretionary grounds because the Plaintiff waited until after the result of the Further Assessment before proceeding to the Supreme Court to complain about the Proper Officer’s decision to allow the Further Assessment Application.
It appears that where a party is dissatisfied with a Proper Officer’s decision to allow a Further Assessment, he or she does not have the luxury of awaiting the result of the Assessment itself before challenging the Proper Officer’s decision.
Along similar lines, it would be prudent for a party who is dissatisfied with a MAS assessment – whether an initial assessment or a further assessment – to utilize the Review procedures in s 63 before making a Supreme Court Application.
Finally, it is gratifying that Malpass AJ confirmed that s 62 permits a Further Assessment both where there is a deterioration in the Claimant’s condition and where there is other relevant information about the injury, which may include information showing an improvement.
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.