- LEEMING JA: I agree with the orders proposed by Basten JA, and with his Honour’s reasons. I wish to add the following concerning the status of and reliance upon guidelines, which was prominent in the insurer’s written and oral submissions on appeal. I do not regard any of what follows to be inconsistent with Basten JA’s judgment.
- It was submitted before the primary judge on behalf of the insurer that the Medical Assessment Guidelines were “delegated legislation” and that the Permanent Impairment Guidelines were “also delegated legislation under the scheme” (written submissions paragraphs 34 and 41). That submission was accepted by the primary judge and was repeated in writing and orally when the appeal was heard.
- At no stage was it explained in terms what was meant by “delegated legislation”. But the reason for the submission is plain enough. It was to support the proposition that a non-compliance by the assessor with the Guidelines amounted, in various ways, to judicially reviewable error.
- Thus it was said at first instance that a “failure to properly apply” the Guidelines led to a breach of statutory duty. It was submitted at first instance that:
“The failure to lawfully apply the test of causation, as required by the PI Guidelines, constitutes a failure on the part of the Assessor to perform his statutory duty pursuant to section 62 of the Act” (paragraph 64).
- On appeal, where the focus of ground 1 had become the failure to consider “all relevant evidence”, in particular the evidence relating to the claimant’s unreliability and his pre-existing impairment, the insurer’s submissions sought to invoke the Guidelines to establish a failure to have regard to relevant considerations. Notwithstanding their length, it is fairer to reproduce material passages from them, rather than to attempt to summarise them.
- It was submitted that:
“[M]edical assessments are governed by two pieces of delegated legislation which in and of themselves require medical assessors to have regard to that which they are given in order to undertake their statutory task (making such documents mandatory relevant considerations).”
- The first of the pieces of “delegated legislation” was the Medical Assessment Guidelines, and the insurer pointed to the obligation in cl 9.11.5 in those Guidelines to provide all documents in support of the application to the assessor, and the general powers governing the assessor’s role in cll 11.1 – 11.5. More elaborate submissions were made concerning the Permanent Impairment Guidelines:
“The second piece of delegated legislation that is binding on medical assessors when they are assessing the degree of permanent impairment of an injured person is SIRA’s Guidelines for the Assessment of the Degree of Permanent Impairment, published 1 October 2007 and issued pursuant to section 44(1)(c) of the Act (‘the PI guidelines’).
At clause 1.19 of the PI guidelines, medical assessors are told that they ‘should’ consider the available evidence and be satisfied of certain things. The available evidence must include (at a minimum) the material given to the medical assessor by SIRA staff in accordance with clause 9.11.5 of the assessment guidelines.
There can be no legislative statement more plain and express than this.
The material given to the medical assessor must be considered by him or her on any medical assessment under the Act and delegated legislation. This material must be mandatory relevant material.
Clause 1.42 and 1.43 of the PI guidelines deal with ‘consistency’.
Clause 1.42 provides, inter alia:
‘If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly, describing the modification and outlining the reasons in the impairment evaluation report.’
Even if the medical assessor was entitled to rely on the subjective reporting by the claimant and/or his wife, the assessor was still required to comply with the PI guidelines in regarding to the assessment of pre-existing impairment.
The PI guidelines deal with pre-existing impairment at clauses 1.33 – 1.35. They require that if there is objective evidence of pre-existing symptomatic impairment in the same region as at the time of the accident then its value should be calculated and subtracted from the current whole person impairment value.
If the construction of the law regarding relevant considerations is that contended for as above, then clause 1.42 and clauses 1.33 – 1.35 were plainly relevant considerations, in that the PI guidelines are delegated legislation directing the medical assessor as to how to perform his statutory assessment task.
In order to comply with clause 1.42 and clauses 1.33 – 1.35 the medical assessor was required to have regard to the evidence that the first respondent relied upon in the proceedings below, regarding pre-existing impairment and inconsistency.
The fact is that the medical assessor failed even to consider the issue of pre-existing impairment, let alone to engage with the evidence and to determine it. This is a failure to comply with the PI guidelines, and a failure to perform his statutory duty which is to properly and lawfully assess the ‘medical dispute’ referred to him (ss 61(1) and 57).
In circumstances where the medical assessor’s task included, as a mandatory relevant consideration, consideration of the primary issues in the dispute between the parties including the claimant’s reliability and consideration of pre-existing impairment, the assessor was required to have regard to the material that was before him that addressed those issues.
In failing to take this relevant material into account, and taking irrelevant material into account, the medical assessor fell into jurisdictional error and the primary judge was entitled to find accordingly” (emphasis in original).
- These submissions are not, in my view, sound.
- Subsections 44(1), (4) and (7) of the Act are as follows:
“(1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:
(a) the appropriate treatment of injured persons,
(b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided),
(c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,
(d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.
(4) Motor Accidents Medical Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.
(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.”
- Thus, the Authority is empowered to issue guidelines, which are to be published in the Gazette and which are treated as being disallowable instruments for the purposes of ss 40 and 41 of the Interpretation Act 1987 (NSW): see subss 44(1), (4) and (7). Subsection (7) makes it plain (by providing that ss 40 and 41 apply as if the guidelines were statutory rules) that the guidelines are not statutory rules. (It is unnecessary in this appeal to say anything of the claims assessment guidelines which are dealt with by subss 69(1), (5) and (6).)
- Section 45 contains special provisions relating to the power to make guidelines relating to the assessment of permanent impairment. Such guidelines are subject to limitations which need not for present purposes be summarised. Such guidelines are also treated as disallowable instruments: s 45(4).
- None of those provisions converts a guideline into delegated legislation which binds the parties or an assessor of its own force. Certainly, the requirement of gazettal does not do so. Many, many instruments are required to be published in the Gazette. Nor does the extension of the provisions relating to disallowance to guidelines do so. Many instruments under many statutes are treated as disallowable instruments (examples include a recall order under s 46 of the Stock Medicines Act 1989 (NSW), a scheme under the Professional Standards Act 1994 (NSW), a determination under Part 3 of the Statutory and Other Officers Remuneration Act 1975 (NSW) and a proclamation or order under ss 8 or 37 of the Poisons and Therapeutic Goods Act 1966 (NSW) – see ss 47, 13, 19A and 46 respectively of those statutes). In such cases, the legal consequence of the instrument is determined by other primary legislation. The instrument does not of itself impose a statutory obligation. The central concept of “delegated legislation” is a delegation of legislative power by Parliament: see O Jones, Bennion on Statutory Interpretation (6th ed 2013, LexisNexis) at 219.
- There appear to be two provisions of the Act of present relevance. Section 65(1) now states the legal consequences of the Medical Guidelines:
“65 Authority monitoring and oversight
(1) Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.”
- As presently advised, I incline to the view that s 65(1) lacks the force attributed to it in the insurer’s submissions. Far from a medical guideline having the force of delegated legislation, s 65(1) provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures: “the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment”. That picks up, almost precisely, the language of s 44(1)(d), which is also directed to procedures.
- Section 133(2) now provides that:
“The assessment of the degree of permanent impairment is to be made in accordance with … Motor Accidents Medical Guidelines issued for that purpose …”
(In 2013, a different term, “MAA Medical Guidelines” was used instead of “Motor Accidents Medical Guidelines” in ss 44, 45, 65(1) and 133(2), but the definition was identical, and so I have used the current statutory language in the foregoing.)
- Although s 133(2) is expressed more strongly than s 65(1), it was not mentioned in the insurer’s submissions. There may be a reason for that, or a subtlety I have overlooked, but prima facie it would appear that regard ought also be had to s 133(2). There are two other matters which emerge from the foregoing. It is plain from comparing the two provisions that statute treats different aspects of the tasks to be performed by medical assessors differently. And it is plain from ss 65(1) and 133(2) that the Guidelines do not bind of their own force.
- It is true that the Medical Assessment Guidelines contain two statements about their own status. Immediately following the table of contents, the Guidelines contain an explanatory note:
These Guidelines are made pursuant to section 44(1)(d) of the Motor Accidents Compensation Act 1999 (‘the Act’). They apply in respect of a motor accident occurring on or after 5 October 1999. Pursuant to section 65(1) of the Act these Guidelines operate by force of law as if they were delegated legislation” (emphasis added).
- Further, cl 1.1 provides:
“Introduction and commencement date
1.1 These Guidelines may be referred to as the ‘Medical Assessment Guidelines’ and are made pursuant to section 44(1)(d) of the Motor Accidents Compensation Act 1999 (‘the Act’). They apply in respect of a motor accident occurring on or after 5 October 1999. These Guidelines are delegated legislation” (emphasis added).
- I cannot see how either or both of those two (mutually inconsistent) sentences in the explanatory note and cl 1.1 within the Guidelines themselves can, self-levitatingly, alter their status. Whether something is or is not delegated legislation turns upon what the Parliament has done, rather than the language of the instrument.
- In any event, unlike the Medical Assessment Guidelines, the Permanent Impairment Guidelines do not purport to have the force of delegated legislation, nor do they state that they operate as if they were delegated legislation, and it was the Permanent Impairment Guidelines which were the principal focus of the insurer’s submissions.
- Consistently with their force being less than legislative, cl 1.3 of the Permanent Impairment Guidelines provides:
“The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.”
- The Guidelines do not state what force is to be given to text which is not in bold, but it is plain that it is something less than a “directive”.
- Finally, it will be seen that the insurer relied on cl 1.19 (evaluation of impairment), 1.33-1.35 (pre-existing impairment) and 1.42 and 1.43 (consistency). None of those clauses is in bold. All of the clauses relied on by the insurer therefore amount to something which is less than a directive.
- Reading the clauses in the Permanent Impairment Guidelines on which the insurer relied together with the provisions of statute, I would conclude that an argument based upon a breach of statute must grapple with the more qualified obligation to conduct an assessment in accordance with guidelines all of which fall short of being directive. I do not wish to be taken as saying that such a submission could never succeed in giving rise to judicially reviewable error; I do not express a view either way on that issue. But it will be seen that it is quite a different submission from that propounded by the insurer.
- Further, the foregoing would appear to confirm that there is nothing in the Guidelines – and certainly nothing in those parts of the Permanent Impairment Guidelines which have less than “directive” force – which of itself leads to the conclusion that a failure to have regard to some matter vitiates the assessor’s determination.
- In short, I cannot agree that the Guidelines are “delegated legislation” in the sense that they bind of their own force. Instead, if judicial review is sought of a decision of an assessor based upon guidelines, it will be necessary to address the provisions of statute which make the guidelines applicable, and it will be necessary to address the particular clauses relied on, because both the Act and guidelines made pursuant to it proceed on the basis that they are not all of the same legal force.