Administrative Law: No need for a “genuine (medical) dispute” under MACA

Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138

This judgment relates to an appeal from a decision in the Common Law Division of the Supreme Court relating to a dispute as to a claim by Ms Scott for damages for injuries she suffered in a car accident. The insurer of the driver at fault admitted liability but disputed Ms Scott’s claim for domestic care provided gratuitously to her and for care she had provided to her daughter.

Following Ms Scott’s claim for compensation, the insurer applied to the Motor Accidents Medical Assessment Service (MAS) for referral for assessment of what it contended was a “medical dispute” under s 57 of the Motor Accidents Compensation Act 1999 (NSW) as to whether gratuitous attendant care services provided to Ms Scott were reasonable and necessary and whether they related to injuries she sustained in the accident. Pursuant to s 58 of the Act, “medical assessment matters” include, relevantly, disagreement as to whether the “treatment” was or is reasonable and necessary and as to whether the “treatment” relates to the injury caused by the accident.

MAS determined that the matter should be referred for assessment and appointed three medical assessors, who provided certificates unfavourable to Ms Scott. Ms Scott sought judicial review both of the decision of the MAS case officer to refer her claim for medical assessment and of the certificates.

The primary judge found in Ms Scott’s favour and set aside the certificates, concluding that voluntary care was not “treatment” for the purposes of s 58 and therefore could not be assessed under the scheme for assessment provided in Ch 3 of the Act. In coming to that conclusion, his Honour considered that the existence of a “genuine dispute” to be referred for assessment was a jurisdictional fact to be determined by the Court and found that there was no such dispute. The insurer challenged both findings on appeal. Ms Scott in turn argued, by way of notice of contention, that a determination of the hours of attendant care services required was not a “medical assessment matter” capable of referral under s 58.

Held allowing the appeal, by Ward JA (Basten JA agreeing at [4]; Gleeson JA agreeing with both at [125]):

(1) (at [86]) that the primary judge erred in construing the word “treatment” in s 58 as being confined to treatment that was to be professionally provided and paid for, having regard to the fact that the definition of “attendant care services” in s 3 is not so confined and that the itemisation of particular types of treatment in s 42 draws no distinction between paid/gratuitous or professional/voluntary services.

(2) (at [94]-[95]) that the relevant certificates in effect certified that, from 1 November 2010 onwards, no domestic assistance was reasonable and necessary; understood in that way, determination as to the number of hours of attendant care services required was a medical assessment matter under s 58.

(3) (at [119]; [121]) that s 60 of the Act is not in terms predicated on a “genuine dispute”. The existence of a medical dispute is not a jurisdictional fact to be determined by the Court but rather is a matter to be determined by the proper officer.

by Basten JA (Gleeson JA agreeing at [125]):

(4) (at [7]-[8]) that if the subject matter of the disagreement falls within the defined terms of matters which may be assumed, the existence of a “disagreement or issue” is a factual matter to be determined by the Authority and, there being no suggestion that the opinion of the Authority was formed on some irrational or legally erroneous basis, the decision to refer the matter to assessment should not have been set aside.

(5) (at [14]) that only “treatment” which is reasonable and necessary having regard to such injuries as are caused by the accident will result in compensation; “treatment” is not narrowly defined; and there is no justification for excluding attendant care services that are provided gratuitously from assessment as a form of treatment.

by Gleeson JA (obiter):

(6) (at [125]) that a medical assessment dispute as referred to in s 58 does not extend to a claim covered by s 15B(2) of the Civil Liability Act 2002 (NSW) for loss of the claimant’s capacity to provide domestic services to the claimant’s dependants.