MAS Reviews- Ambit of Proper Officer's Power to Dismiss Review Application Judicially Considered
Judgment date: 1 October 2010
Meeuwissen v Boden and Motor Accidents Authority of NSW [2010] NSWCA 253
NSW Court of Appeal 1
In Brief
- "Material" to be interpreted to include consideration of the correctness of the entire medical assessment, not just whether the correction of the alleged error has the potential to change the entitlement to an award of damages for non-economic loss under section 131 of the Motor Accidents Compensation Act 1999 (the Act).
- The Proper Officer has only to be satisfied that "there is reasonable cause to suspect" that the assessment was incorrect which does not require an assessment or calculation on the part of the Proper Officer.
- Once the Proper Officer is satisfied that there is reasonable cause, the duty to refer the Application is mandatory, not discretionary.
Background
This matter previously came before the Supreme Court. The plaintiff's application in this instance is concerned with an appeal of the original Supreme Court decision.
The plaintiff's original application to the Supreme Court sought judicial relief from a decision made by MAS Proper Officer who had dismissed the plaintiff's Review application, seeking a review of a MAS Assessment, on the grounds that the Proper Officer's decision was beyond the reach of the power vested in her by the relevant legislation.
The Supreme Court judge decided at first instance that the MAS Proper Officer's decision was not in breach of any legislation and therefore the decision was valid and could not be quashed. The plaintiff was unsuccessful in the first instance.
This application is concerned with the plaintiff's appeal to the Court of Appeal who, ultimately, decided in favour of the plaintiff, overturning the original decision of the primary judge.
Briefly, the plaintiff sought a Review of a MAS Further Assessment because the MAS Assessor had failed to assess an impairment to the left upper limb and the plaintiff's whole person impairment (WPI) relevantly fell below the threshold at just 4%. The substance of the plaintiff's Review application was that the omission of the left arm impairment from assessment constituted an error and the inclusion of which had the potential to result in a materially different outcome.
The Proper Officer dismissed the Application on the basis that the omission was not a material error. Specifically, she stated:
The Supreme Court confirmed that this decision was within the power of the Proper Officer.
Judgment
The grounds of the appeal application are based on whether the Proper Officer correctly interpreted the phrase "material respect", contained at section 63(3).
The Proper Officer made a decision that if the matter were referred to the Review Panel it was unlikely that the plaintiff's impairment would be assessed as exceeding the 10% WPI threshold. This, in the Proper Officer's view, is the proper interpretation of the phrase "in a material respect".
Her Honour, Justice Beazley, stated that the case law 2 to date had supported a particular interpretation of "material" which was not relevant in this context, in light of the statutory framework contained in section 60 of the Act.
In her view, the interpretation of "material" as having a particular meaning, rather than an "ordinary meaning" should have preference in the current context given the legislative framework, including the following specific considerations.
Her Honour found that, whether the medical assessment itself is correct is material. The question of materiality being limited to considerations as to whether or not the threshold will be exceeded is not correct. To describe a medical assessment as incorrect in a material respect does not necessarily require that the Certificate would be different, absent the error. After all, the medical assessment is about a medical dispute not just the production of a certificate certifying WPI.
The power conferred on the Proper Officer is not discretionary. Once the requisite state of satisfaction is achieved in respect to the relevant matter, it is incumbent on the Proper Officer to arrange for the Application to be referred, as per s 63(3).
Her Honour stated that the matter as to which the Proper Officer is to be satisfied, is not whether the assessment is incorrect in a material respect but whether "there is reasonable cause to suspect" that the assessment is incorrect. Her Honour noted that the language is inconsistent with the Proper Officer being expected to carry out an assessment or calculation, as opposed to identifying possible errors. Her Honour stated that the power of the administrative officer, pursuant to s 63, is that of a gatekeeper and not a decision maker. Where there is a reasonable cause to suspect that a significant error has been made, "fairness" suggests that the review should be allowed to proceed.
Further, the injured party is entitled to a decision reached in accordance with the proper understanding of the statutory scheme and the facts: Where an important fact has been ignored, "the assessment has not been properly undertaken and the statutory right subverted".
Following consideration of these matters, Her Honour considered that the Proper Officer clearly misinterpreted the scope of her power. Her logic was based on the acceptance of the fact that the assessor's omission to assess the left shoulder did not give rise to a greater than 10% WPI but, such an omission cannot be considered as trivial, insignificant or immaterial. The Proper Officer was wrong to conclude that the Assessor had not erred in his assessment and was not "incorrect in a material respect". Her Honour considered that the primary judge's dismissal of the summons before her was legally erroneous. In his Honour's view, the appeal in this instance was allowed and the judgment of the lower court set aside.
The plaintiff was afforded the appropriate relief and was referred back to the authority for reconsideration by the Proper Officer, according to law, noting that the power to achieve a relevant state of satisfaction and to make the appropriate referral was not vested in the appeal court.
Implications
This case circumscribes the power of a Proper Officer. It is not incumbent upon a Proper Officer to calculate or consider whether the plaintiff's WPI will exceed the threshold on correction of a material error, rather the medical assessment itself is of interest and relevance when considering whether there has been a material error.
The decision has the potential to significantly increase the number of Review applications lodged at MAS. In particular, an insurer can potentially now challenge adverse causation findings even where the total WPI is not greater than 10 % WPI. While such findings on causation may not be binding on the parties in relation to the assessment of damages other than non-economic loss, such findings would be highly persuasive.
1. Beazley, Basten JJA; Sackville AJA
2. Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353.
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