Allocation Of Medical Assessors Not Subject To Judicial Review.

Judgment date: 3 September 2009

Goodman v The Motor Accidents Authority of New South Wales & Anor (2009) NSWSC 875

Supreme Court of New South Wales1

In Brief

The power of the Motor Accidents Authority (MAA) to allocate independent medical assessors in accordance with s 60(2) of the Motor Accidents Compensation Act (MAC Act) is not reviewable.

Background

The plaintiff sought judicial review, pursuant to s 69 of The Supreme Court Act 1970, of the allocation of a particular Medical Assessor by the MAA.

The grounds of the application were that the plaintiff had been denied natural justice. The plaintiff argued, and was entitled to a legitimate expectation, that a particular Medical Assessor would be appointed to conduct any Further Assessments of whole person impairment.

Injury The plaintiff sustained injury when he fell from the rear of a motor vehicle at Parramatta Park on 26 June 2004. The plaintiff was 9 years old at the time of the accident.

Medical Assessment The plaintiff sustained an injury to head and sought an assessment of permanent impairment by the Medical Assessment Service (MAS).

The allocated Medical Assessor assessed the plaintiff's injuries as exceeding the 10% whole person impairment threshold thereby entitling the plaintiff, in accordance with s 131 of the MAC Act, to an award of non-economic loss.

Further Assessment

The insurer lodged an application seeking a Further Assessment.

The insurer relied on additional information as the purpose for seeking the Further Assessment.

On review of the second defendant's application, the MAA referred the matter for Further Assessment on 17 June 2008.

Allocation of Medical Assessor A different Medical Assessor was allocated to conduct the assessment.

MAA's power to allocate an assessment to a Medical Assessor lies in s 60(2) of the MAC Act.

The plaintiff objected to the allocation of a different Medical Assessor on the basis that MAA had not provided the plaintiff with the reasons behind the allocation and, in particular, why the dispute was allocated to a different Medical Assessor.

MAA's response explained that the original Medical Assessor was not available within a reasonable timeframe.

On 5 August 2008, and on the advice of his solicitors, the plaintiff did not attend the appointment with the Medical Assessor allocated to conduct the Further Assessment.

Raising of Complaint

Under cover of letter of 5 August 2008, the plaintiff's solicitor advised the MAA the firm had lodged a complaint with respect to the second Medical Assessor and it would therefore be inappropriate for the plaintiff to attend upon that assessor.

The plaintiff did not provide details of the nature of the complaint against the second assessor nor did the plaintiff's solicitor advise whether the complaint was of a serious and substantial nature.

The plaintiff did not provide, in accordance with 11.14A of the MAS Assessment Guidelines (MAG), a detailed statement of factual matters or reasons why the Medical Assessor might be unsuitable, and the objection was 'out of time'.

On 15 August 2008, the MAA notified the parties that new appointments had been made. The appointment made was with the Medical Assessor who conducted the original assessment. The insurer objected and the MAA revoked the allocation, this time allocating the dispute to a third Medical Assessor.

Alleged Failure to Advise

The plaintiff was not provided with a copy of the insurer's letter objecting to the allocation of the original Medical Assessor.

Again, the plaintiff failed to attend the appointment with the newly appointed Medical Assessor on 3 October 2008 and an assessment was conducted on the papers. The assessment finding was one of "not stable" and therefore whole person impairment could not be determined.

The plaintiff sought orders quashing the certificates, a declaration that they were invalid and a referral back to the original decision maker, the MAA (not the original Medical Assessor) to conduct a Further Assessment.

Judgment

Legitimate Expectation

Justice Hoeben stated that he could see no denial of legitimate expectation in the process of reallocating the Further Assessment to a different Medical Assessor. Section 60(2) merely enables MAA to allocate an Assessor.

It does not create any right or expectation conferring a benefit on any party. Underpinning the provision is the notion that the Assessor will be independent, and not subject to any qualitative description such as "good" or "bad" or able to confer a benefit or withdraw a benefit.

Section 60(2) provides: "The Authority is to arrange for the dispute to be referred to one or more medical assessors".

Denial of Natural Justice

The Court ruled that MAA's failure to inform the plaintiff of the change in Medical Assessor did not result in any denial of natural justice.

The Court rejected the plaintiff's submission that it would have made submissions to the MAA as to the expediency of having the initial Medical Assessor conduct the Further Assessment were without legal basis.

The Court did not agree that the MAA's failure to inform the plaintiff was analogous to the facts of Kioa v West2, which relevantly states:

"When an order is to be made which will deprive a person of some right or interest of a legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it."

The Court ruled that the facts and findings of Kioa v West were not relevant as the decision making involved in s 60(2) involves no more than the taking of an administrative step to enable a final decision to be made by another entity at a later point in time.

The case at hand was also distinguished from Campbelltown City Council v Vegan3, where a final medical certificate issued by a workers compensation assessor was subject to judicial review, because it was a final certificate, as distinct from an intermediate administrative step.

An allocation conducted by the MAA, pursuant to s 60(2) of the MAC Act, is an interim step conducted by MAA and cannot be the subject of judicial review.

Implications

This case confirms that the allocation of Medical Assessors is not subject to judicial review as the allocation involves an interim step in the process of assessing whole person impairment.

While an error in the certificate of a Medical Assessor remains subject to judicial review for the categories of cases identified and subjected to administrative legal remedy, allocation of a Medical Assessor remains firmly a non-reviewable decision.

The case does not categorically deny that the decisions by the MAA that allegedly breach either natural justice or legitimate expectations are not reviewable, but merely that the allegation needs to satisfy the common law requirements for raising such an allegation.

Footntoes

1 Hoeben J

2 (1985) 159 CLR 550

3 [2006] NSWCA 284 (at 106)

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.

Ms Cherilyn Ribbons

Curwoods Lawyers

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