Australia: Court of Appeal defines nature of discretion in s 62(1)(b) - Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287
Curwoods Case Note

Judgment date: 24 November 2010

Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287

New South Wales Court of Appeal¹

In Brief

• A Court or claims assessor has an unfettered discretion to refer a matter for further assessment under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (the Act).
• Although the discretion is unfettered it should only be exercised where there are good reasons to do so and where it would be unjust not to do so.
• One good reason for a Court or claims assessor to exercise their discretion under s 62(1)(b) would be that there are grounds to believe that the further assessment might reverse the previous finding in relation to the threshold for an award of non-economic loss damages.

Background

The claimant was injured in a motor accident in 2001 when another car collided with the rear of his car, causing it to overturn. He suffered injuries to his neck, back and left arm which were assessed by MAS in 2003 below the threshold for an award for non-economic loss. The matter was referred for further assessment by a different MAS assessor in 2007 and the claimant was again assessed below the threshold.

In 2008 the matter was referred to CARS for general assessment. An application was made by the claimant to the CARS assessor that he exercise his discretion under s 62(1)(b) to refer the matter for a further assessment of his permanent impairment. The claimant submitted that the second medical assessment certificate was invalid due to bias and denial of procedural fairness. The submission was essentially made on the following grounds:

(a) The MAS assessor's findings were inconsistent with the preponderance of medical evidence.

(b) The MAS assessor erroneously assessed the left arm injury as having arisen from the neck injury.

(c) The MAS assessor's assessment was affected by his conclusion that a number of treating doctors' reports had been generated at the claimant's solicitor's request.

(d) The MAS assessor made observations of the claimant after the examination had finished, without providing the claimant an opportunity to explain any inconsistencies.

The CARS assessor declined the application under s 62(1)(b) primarily because he was not satisfied a further assessment would result in the claimant being assessed above the threshold for an award of non-economic loss damages. The claimant then sought to refer the matter for further assessment pursuant to s 62(1)(a), which was declined. Thereafter, he again sought that the CARS assessor refer the matter for further assessment pursuant to s 62(1)(b). The second application was declined on similar grounds to the first.

The claimant filed a summons in the Supreme Court seeking to set aside the CARS assessor's decisions and applying for an order that the matter be referred for further assessment pursuant to s 62(1)(b). The Supreme Court dismissed the summons and the claimant appealed that decision.

Court of Appeal

During the course of argument before the Court of Appeal, the insurer conceded the claimant was denied procedural fairness when the MAS assessor observed his actions following the examination. These observations were in breach of the Permanent Impairment Guidelines which require a MAS Assessor to allow a claimant the opportunity to address any inconsistencies observed in their presentation.

In a majority judgment the Court of Appeal dismissed the claimant's appeal.

The Court supported the claims assessor's approach that, although the discretion under s 62(1)(b) was 'unfettered', 'it must only be exercised where there are good reasons so to do' and 'where it would be unjust not to do so'.

The Court of Appeal noted that such reason could include that a further assessment would reverse the previous finding in relation to the threshold for an award of non-economic loss damages, but this was not the only good reason for a further assessment under s 62(1)(b).

The Court considered that even if the claims assessor erred in relying on this reason to refuse the application, he had also considered a number of other reasons to refuse the application which did not contain error and, therefore, such error would be immaterial². Justice Handley concluded:

Implications

This decision affirms the principle that the discretion to refer a matter for further assessment pursuant to s 62(1)(b) is not restricted.

However, the decision makes clear that such discretion must not be exercised frivolously and that there must be some good reason for the referral.

An assessor (or the Court) may properly refuse to exercise the discretion found in s 62(1)(b) on the grounds that the further assessment will have no reasonable prospect of altering the outcome of the previous assessment.

1 Giles JA, Young JA and Handley AJA

2 In accordance with the decision in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419

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