Australia: Courts won´t exercise discretion to order further medical assessment unless satisfied it is likely to result in a different outcome: Bouveng v Bolton

Last Updated: 3 March 2009
Article by Peter Hunt

Bouveng v Bolton [2009] NSWDC 19
26 February 2009
Sidis DCJ

In Brief

  • The Court will not exercise the discretion conferred by s 61(1)(b) of the Motor Accidents Compensation Act 1999 to order a further assessment of a medical dispute unless satisfied that the further assessment is likely to result in a different outcome on a matter of substance


In this matter, Sidis DCJ was required to adjudicate upon an application by the Plaintiff to refer his claim for further assessment by the Medical Assessment Service, pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999.

Section 62 reads:

  1. A matter referred for assessment under this Part may be referred again on one or more occasions in accordance with this Part:
  1. by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or
  2. by a court or claims assessor

The Plaintiff alleged a variety of injuries which included a soft tissue injury to the left shoulder, a fracture of the greater tuberosity left humerus, soft tissue injury to the neck, a complete tear of the right anterior cruciate ligament and a displaced racture of the left orbital bone. The Plaintiff also alleged psychiatric injury.

The Plaintiff was assessed by Assessor Haertsch, plastic surgeon, Assessor McLeod, neurologist, and Assessor McClure, psychiatrist. The Plaintiff was assessed below 10% WPI.

The Plaintiff lodged an application for further assessment, but subsequently withdrew the application, stating an intention to make a further application shortly. However, rather than apply for further assessment under s 62(1)(a), the plaintiff made an application under s 62(1)(b), for the Court to order a further assessment.

The plaintiff sought a further assessment on the following bases:

  • Material had been produced under subpoena which was not available to the Assessors,
  • Medical opinion obtained after the original assessments placed the Plaintiff over 10% WPI, and
  • The Plaintiff contended he should have been assessed by an orthopaedic surgeon.

Sidis DCJ

At paragraph 7 of her Honour's Judgment, Sidis DCJ observed that the discretion conferred to a Court of a Claims Assessor is not limited by the factors which apply where the parties seek a further assessment under s 62(1)(a):

"7 The right conferred on the parties to refer a matter for further medical assessment is exercisable only if the preconditions set out in s 62(1)(a) are met. S 62(1A) imposes a further condition requiring that the deterioration of the injury or additional relevant information be capable of having a material effect on the outcome of the previous assessment. These conditions are not imposed in circumstances where the referral is made by a court or claims assessor."

Having satisfied herself that s 62(1)(b) gave the Court power to refer a matter for further assessment, Sidis DCJ proceeded to consider whether the Court should, in the particular circumstances of the case, exercise that discretion.

At paragraphs 12 and 13, Sidis DCJ held that a Court should only exercise the discretion conferred by s 62(1)(b) where there is a compelling reason to do so and where there is likely to be a substantive change in the outcome.

"12 In my view the objects of the Act and the context in which the provisions referred to appear in the Act indicate that, in addition to the requirement that there be proceedings before the court, the principles to be applied in determining whether the relief sought should be granted require that the court keep in mind that a certificate issued by a medical assessor is intended to be conclusive except to the extent that it is established that there is a real basis upon which the court should exercise its discretion to refer a matter for further assessment.

"13 This principle necessarily involves a requirement to satisfy the court that further referral is likely to produce a different outcome of some substance. I do not consider that it would be sufficient for a party to rely, for instance, only upon an opinion of a medical expert that differed from that of a medical assessor."

Whilst Sidis DCJ was not satisfied that either the material produced under subpoena or the new medico-legal reports had the capacity of producing a different outcome of substance, her Honour was satisfied that the matter should be referred for further assessment, so that the Plaintiff could be examined by an orthopaedic surgeon.

Judge Sidis reasoned that the Plaintiff alleged serious orthopaedic injuries and that his physical injuries had only been assessed by Dr McLeod, a neurologist. He had not been assessed, for MAS, by an orthopaedic expert.

Given that the Plaintiff's medico-legal expert, Dr Ghabrial, had found 27% WPI and the Defendant had not served a report by an orthopaedic surgeon contradicting this WPI assessment, Sidis DCJ decided that a further assessment by an orthopaedic specialist was warranted.

For this reasons, Sidis DCJ allowed the application under s 62(1)(b).


The decision by Sidis DCJ provides useful guidance as to how the Court's discretion under s 62(1)(b) should be exercised.

Whilst the section provides an unfettered discretion, it is reasonably clear that the Court should not exercise that discretion merely because one of the parties asks it to. Rather, Sidis DJC held that the parties need to satisfy the Court that there is a realistic prospect that a further assessment "is likely to produce a different outcome of some substance"

Interestingly, in this case, Sidis DCJ was satisfied that further assessment may produce a substantially different outcome, because the Plaintiff suffered orthopaedic injuries and MAS chose to have his physical injuries assessed by a neurologist rather than an orthopaedic expert. Not only did Sidis DCJ direct that a further assessment take place, her Honour directed that it be conducted by an orthopaedic specialist.

In practical terms, the effect of her Honour's decision is usurp the role of the Medical Assessment Service to decide what kind of doctor should assess a particular claimant's impairment.

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.

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