On 5 August 2016 the Supreme Court delivered judgment in the matter of NRMA Insurance v Asaner which provides further guidance to insurers and practitioners in relation to the application of s 62(1)(a) Motor Accidents Compensation Act 1999 (NSW) (Act) in the wake of Jubb v Insurance Australia Limited.1
His Honour Justice Campbell set aside the decision of the proper officer refusing the insurer’s application for referral for a further medical assessment under s 62(1)(a) and remitted the matter to S.I.R.A for the determination of the application by its proper officer according to law.
The first defendant, Mr Asaner, is claiming damages for personal injuries received in a motor accident on 14 July 2012. On that day he was loading his work van with a bread tray when he was struck by an oncoming motor car. He alleges injuries to various parts of his body including his neck and lower back.
The first defendant’s entitlement to non economic loss pursuant to s.131 of the Act is in dispute. The matter was referred to the Medical Assessment Service and a medical assessment was undertaken by Dr David Johnson on 9 March 2015. Dr Johnson assessed the degree of permanent impairment at 14% including 4% for restriction of left shoulder.
Among the volume of medical material provided to Dr Johnson for the purpose of his assessment was a report of Dr Phillipa Harvey-Sutton dated 13 December 2013.
Application for further medical assessment
On 30 June 2015 the insurer applied for the matter to be referred for medical assessment under s 62 of the Act on the ground of ‘additional relevant information about the injury’.
The additional relevant information relied upon by the insurer was a surveillance DVD, the investigator’s report including a surveillance log, and a second report of Dr Harvey-Sutton, all of which post-dated Dr Johnson’s assessment certificate.
In her second report, Dr Harvey-Sutton said that she had viewed and considered the surveillance report and DVD footage which led her to confirm her previous conclusion, inter alia, that she could not ‘identify continuing signs of injury or disability’’
On 28 August 2015 the proper officer declined the insurer’s application stating, in part:
‘I am satisfied that the surveillance material and Dr Harvey-Sutton’s report are additional to the party relying on them as a ground for further assessment, as required by Singh2. However, I am not satisfied that they constitute additional relevant information about the injury. This is because Dr Harvey-Sutton’s opinion does not appear to be of a different kind (i.e. dealing with different issues) than the opinions already expressed and considered as outlined in Singh. ……I note that Dr Harvey-Sutton’s previous opinion was before the Assessor and was considered. As her opinion has not changed, I do not consider it to be additional relevant information.
In light of Dr Harvey-Sutton’s comments above that the surveillance material does not affect her previous determination, and in the absence of any material before me to the contrary, I am not satisfied that the surveillance material is additional relevant information. This is because it does not contain an opinion of a different kind as required by Singh, and is saying the same thing but using different or greater analysis, as outlined in Alavanja’3.
Having found that the material was not ‘additional relevant information’ within the meaning of s 62(1)(a) the proper officer did not address s 62(1A).
The insurer sought an order in the nature of certiorari, setting aside the legal effect of a decision of the proper officer refusing the application for further assessment of a medical dispute.
The insurer argued that the decision of the proper officer was vitiated by a number of errors:
- The proper officer misconstrued the expression ‘additional relevant information’. It was argued that the proper officer misdirected himself by assuming that new evidence supporting a previously expressed conclusion could never be additional relevant information.
- The proper officer had failed to personally view the DVD. Reliance was placed upon the decision in Insurance Australia Limited v Clewley4 to the effect that an opinion formed without viewing the DVD was not one properly formed according to law.
- The proper officer failed to evaluate whether, independent of Dr Harvey-Sutton’s report, the surveillance material was capable of changing the outcome of the previous assessment.
The first defendant argued that in substance the insurer was impermissibly challenging the merits, rather than the legality, of the decision and there was no error in the proper officer considering the materiality of the surveillance material in the light of Dr Harvey-Sutton’s second report. Even if the Court were satisfied that the proper officer had not viewed the film itself, there is no error in him failing to do so.
Supplementary submissions of the parties
The parties were granted leave to file supplementary submissions in respect of the decision in Jubb, which was delivered whilst judgment was reserved in this case5.
The insurer submitted that Jubb makes clear that the proper officer erred by relying upon Singh (No 2) and Alavanja when directing himself as to the legal content of his power to refer again, which fatally infected his decision.
The first defendant submitted that the proper officer’s error in doing so was not material to the final decision, and therefore not an error of law as the decision was open to him in the correct exercise of the residual discretion as articulated in Jubb at . The first defendant submitted that the remarks in Jubb about the capacity of further medico-legal reports to constitute additional relevant information were obiter dicta, and that the principle in Henderson6 (such that for a further medical opinion to satisfy the precondition is whether the basis for the new opinion is additional relevant information) still applies.
His Honour Justice Campbell found that:
- The proper officer’s reasons did not provide a basis for inferring he had failed to view the surveillance film.
- Except in rare cases, it may not be necessary for the proper officer to view a DVD. As the question of degree of impairment is a medical one determined by a medically qualified assessor, a party’s application for referral again ‘may be expected to be supported by medical opinion explaining how the additional information enjoys the statutory capacity to change the outcome of the previous assessment’.
- The proper officer’s reasons for deciding the surveillance material was not additional relevant information seems to have reflected his view that he was constrained by authority to interpret the phrase ‘additional relevant information’ as restricted to ‘opinions’ dealing with ‘issues’ not previously considered. In Jubb the Court of Appeal rejected that construction of s 62.
- The insurer has established constructive failure to exercise jurisdiction, a form of jurisdictional error.
- In addition, in Jubb the reasoning in Singh (No 2) was subjected to rigorous critical analysis (see  – ). As Singh (No 2) proceeded on the now recognised as erroneous basis that the s 62(1A) pre-condition was a jurisdictional fact of a type to be determined by the Court as an objective fact, the reasoning had to be treated ‘with some caution’7.
- The proposition that material held back by a party was not additional information is ‘open to doubt’ because of ‘a risk of conflating the considerations to be balanced by the proper officer in exercise of the discretion given in s 62(1) and the formation of the proper officer’s opinion required by s 62(1A).’
- The proposition that a further medical opinion cannot constitute ‘additional information’ ‘unless it is based upon a change in the claimant’s underlying symptoms and circumstances … may be doubted’ because it tends to conflate the separate grounds of ‘deterioration of the injury’ and ‘additional relevant information’. That ‘conflation’ seems to have occurred here.
- The phrase ‘additional relevant information’ is to be given its ordinary meaning. It encompasses much more than the mere expression of expert opinion even if the relevance or significance for the purpose of s 62(1A) might, as a matter of fact, depend upon an expert exposition.
- It would be wrong to assume that a revised medical opinion alone can never constitute additional relevant information. A different but cogent medical view not available at the time of the previous assessment is one example capable of satisfying the test.
- The proper officer’s reliance on the erroneous construction he derived from Singh (No 2) was central to his decision. That, properly directed, the same decision may be open is not to the point.
- The correct legal approach is that the proper officer was not precluded from evaluating Dr Harvey-Sutton’s second report as ‘additional relevant information’. The insurer argued that the surveillance material depicted the first defendant exhibiting a full range of left shoulder movement. If that submission was borne out by his viewing of the film, it was legally open to the proper officer to decide that Dr Harvey-Sutton’s restatement of her previously held opinion considered in the light of the surveillance material was ‘additional relevant information’.
- Were that the decision, the question was then whether the proper officer was satisfied that that ‘additional relevant information’ was ‘capable of having a material effect on the outcome of the previous assessment’. In this case, an affirmative answer to that second question would also have been open.
- If the proper officer in his subjective assessment decided each of those questions in favour of the insurer, a third question arises which is ‘whether or not to refer the matter for a further assessment’ in the exercise of the ‘residual discretion’ conferred by s 62(1) by use of the word ‘may’: Jubb at  – . Of the ‘residual discretion’ Gleeson JA said (at ):
‘… the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute…[T]he existence of that discretion has been recognised in the authorities on s 62.’
- Matters relevant to the exercise of that discretion were identified by the Court in Jubb to include, but not be limited to:
‘whether a party has ‘held back’ information, or whether the additional relevant information is new, or whether like information is shown to have been considered and rejected in the previous assessment, or whether by the exercise of reasonable forensic diligence the information could have been obtained in a timely way for the purposes of the previous assessment are matters which may inform the exercise of the residual discretion’8
We would query how it is possible for a decision maker to ‘consider’ surveillance film in accordance with his or her statutory obligation, without personally viewing it and demonstrating active engagement with the material contained therein. To find otherwise, in our view, risks conflating the surveillance film with the accompanying written surveillance report. There is a patent qualitative difference between the film and written material, which may well be significant for the purposes of the issues to be decided by the proper officer. It is incumbent on an applicant to ensure such issues are addressed in submissions in support of any referral for a further medical assessment.
Except in those rare cases where the materiality of the surveillance film is evident to a lay person, the majority of applications for further assessment which rely on surveillance film will also require a medical opinion which expressly addresses the relevance of the film, including any inconsistencies between the surveillance footage, the claimant’s presentation at the previous medical assessment and the findings of the medical assessor.
Post-Jubb there would appear to be greater scope that material ‘held back’ by a party will be found to be ‘additional’ within the meaning of s 62(1)(a) however it is likely that, except perhaps in special circumstances, the proper officer will exercise his or her residual discretion against that party. Consideration should, however, be given to possible grounds for a referral under s 62(1)(a) where further cogent medical opinion later becomes available which is contrary to the MAS certificate, notwithstanding that an opinion from the same field of medicine was available to the medical assessor.