Administrative law: The role of a medical assessor

AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368

On its proper construction the MAC Act does not require a medical assessor to make a determination as to what elements of an incident involving a motor vehicle during which a person was injured was a “motor accident” within the meaning of s 3 of the MAC Act: [7], [123], [159], [197].

 

The third respondent, Ms Vanessa Sproule, lodged an insurance claim with AAI Limited trading as AAMI (AAMI) seeking to recover damages in respect of injuries she said she suffered during a motor vehicle accident on 5 July 2009 involving the driving of a vehicle by her ex-partner, Mr Judd Ball. AAMI was Mr Ball’s motor vehicle insurer. A dispute arose as to the extent to which Ms Sproule’s permanent impairment was caused by the incident. AAMI contended the incident in which Ms Sproule was injured involved five phases, only some of which involved a motor vehicle, and others of which involved Mr Ball physically assaulting Ms Sproule.

A medical assessor appointed by the State Insurance Regulatory Authority of New South Wales (Authority) determined that Ms Sproule had a whole person impairment of 14 per cent. AAMI sought a review of this assessment pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The review application was rejected by the Proper Officer of the Authority’s Medical Assessment Service.

AAMI sought judicial review of the Proper Officer’s decision. The primary judge found that the Proper Officer’s determination did not demonstrate jurisdictional or non-jurisdictional error and dismissed the judicial review application.

AAMI sought leave to appeal. Its principal contention on appeal was that the MAC Act, in particular, s 58(1)(d) and s 131, required a medical assessor to make a determination as to, or to characterise, what elements of an incident involving a motor vehicle during which a person was injured was a “motor accident” within the meaning of s 3 of the MAC Act. It argued that conclusion followed from the proper construction of the MAC Act and a line of authority, principally Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82.

Held, granting leave to appeal and dismissing the appeal:

per McColl JA and Simpson JA (Macfarlan JA agreeing)

(1)   On its proper construction the MAC Act does not require a medical assessor to make a determination as to what elements of an incident involving a motor vehicle during which a person was injured was a “motor accident” within the meaning of s 3 of the MAC Act: [7], [123], [159], [197].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41; Military Rehabilitation and Compensation Commission v May (2016) 90 ALJR 626; [2016] HCA; Smalley v Motor Accident Authority of New South Wales (2013) 85 NSWLR 580; [2013] NSWCA 318 applied.

per McColl JA (Macfarlan JA agreeing, Simpson JA not deciding)

(2)   Motor Accidents Authority of NSW v Mills is not authority for any larger proposition than that the MAC Act leaves questions of permanent impairment and causation for medical assessors’ exclusive and conclusive determination: [141] – [158].

Spratt v Perilya Broken Hill Ltd; Spratt v Rowe (2016) 77 MVR 206; [2016] NSWCA 192 applied.

Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82; Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 373; Ackling v QBE Insurance (Australia) Limited and Anor (2009) 75 NSWLR 482; [2009] NSWSC 881; Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 considered.