Not such a narrow door! Broadening the grounds of s 62 of the Motor Accidents Compensation Act 1999 (NSW) – Jubb v Insurance Australia Ltd [2016] NSWCA 153

This is an appeal by the plaintiff of the decision of the Supreme Court of New South Wales (Supreme Court) in Jubb v Insurance Australia Limited t/as NRMA Insurance.⁴ The full background of this matter is set out in our previous Case Note. For convenience, the key facts of the matter are set out below:

• The plaintiff sustained physical and psychological injuries in a motor vehicle accident on 21 July 2011. A MAS Assessor assessed his physical injuries at 5% whole person impairment (WPI)

• On 9 August 2013, Assessor Baker assessed the plaintiff's psychological injuries at 13% WPI. The defendant subsequently lodged an application for review pursuant to s 62(1)(a) of the MACA on the basis of 'additional relevant information', consisting of five items of further evidence

• The Proper Officer considered that only the clinical records of the plaintiff's treating psychologist and the statement of the plaintiff’s manager satisfied the test of 'additional relevant information'. This was on the basis that they post-dated the accident and presented a new opinion. As such, the Proper Officer referred the plaintiff for further assessment and the plaintiff's psychological injuries were re-assessed at 7% WPI.

The plaintiff sought judicial review of the decision of the Proper Officer and the subsequent certificate of the MAS Assessor in the Supreme Court on the grounds, inter alia, that:

1. 'Additional relevant information' needs to amount to more than expressing a different opinion to that of the MAS Assessor
   
   
2. 'Additional relevant information' must raise an issue that has not already been considered by the MAS Assessor, namely, the plaintiff’s relationships with his children and the plaintiff’s work performance.

The trial judge rejected these grounds on the basis that the correct, lower-threshold test had been applied pursuant to s 62(1)(a) of the MACA, 'such as to be capable of having a material effect', in conjunction with the deference afforded to the Proper Officer. On appeal, Gleeson J stated that implicit in the trial judge's approach "was a rejection of the appellant’s argument that the phrase ‘additional relevant information’ is to be given such a narrow meaning as to exclude information concerning an issue which has already been considered by the previous medical assessor".⁵

The plaintiff's key grounds on appeal were that:

1. Section 62(1A) of the MACA had been misconstrued by the Proper Officer as the further evidence did not raise any new issues;
   
   
2. The Proper Officer had failed to take into account relevant considerations in the exercise of her discretion in relation to whether the 'additional information' was obtained with due diligence and whether the 'additional information' considered the same issue appraised by Assessor Baker.

Same issue ground

As part of submissions with respect to this ground, the plaintiff submitted that 'additional relevant information' should be read down to exclude issues already considered by Assessor Baker.⁶ This was supplemented by a consideration of the MACA holistically, with emphasis on the objects of the MACA, namely encouraging early resolution of compensations claims, and other avenues for review available under the MACA.

In rejecting this ground, Gleeson J observed that:

• The clear language of s 62 suggests that 'additional information' can address the same issue. This includes the use of the phrase 'referred again'
  
  
• The power of referral is not inconsistent with the objects of the MACA. It ensures that accurate information is before the Assessor, prevents further adjournment of court proceedings at a later stage and ensures the 'correct and preferable decision' is made⁷
  
  
• The idea that this interpretation would invite further applications – the 'floodgates argument' – may be rejected on the basis of the Proper Officer's discretion pursuant to s 62
  
  
• A narrow construction of 'additional relevant information' would be productive of injustice for both parties. For example, the parties may be bound by a history or assumptions which were incomplete or inaccurate⁸
  
  
• That other provisions of the MACA allow review of a medical assessment at different stages does not compel s 62(1)(a) to be read down. His Honour stated that "those powers are complementary and none is expressed to have primacy over the other".⁹
  
  
• His Honour also noted that the plaintiff’s adoption of common law analogies was misplaced, including reference to the principle of finality, principles of evidence law with regard to adducing new evidence and the principle of abuse of process.

There was also an admonishing comment with respect to Singh v Motor Accidents Authority of NSW (No 2),¹⁰ that s 62(1A) is not for determination by a court as an objective fact, but the subjective satisfaction of the Proper Officer.

His Honour denied the plaintiff leave to ventilate this submission, which had not been raised at trial, however, provided some insight into why this ground would have been unsuccessful in any event.

Primarily, a 'relevant consideration' is a reference to a factor that the decision-maker is bound to take into account.¹¹ In this instance, the plaintiff’s case was tied up in factors that the Proper Officer was called on to consider, rather than factors expressly prescribed by the MACA.¹²

Gleeson J (with Meagher and Payne JJA agreeing) granted the plaintiff leave to file an amended summons deleting the first ground (that is that the trial judge did not provide adequate reasons) and adding the relevant considerations ground.

Arguably, this decision broadens the ambit for cases to access the 'additional relevant information' provision found in s 62 of the MACA.

When looking to adduce 'additional relevant information', it is not useful to focus on issues that have already been considered by a MAS Assessor. For example, in this case the plaintiff unsuccessfully argued that the statement of the plaintiff's manager was already addressed by the MAS Assessor’s appraisal of work performance.¹³ An application is better served by consideration of whether the information could have a 'material effect' on the outcome. This case demonstrates that a useful starting point in this respect is to ask, for example, does the new evidence post-date the assessment or does it present inconsistencies?

The pre-condition of 'material effect' itself is not a high threshold, with further evidence assessed as being 'capable of having a material effect', not 'would have a material effect'. For example, where further evidence does not add new symptoms or opinion is not an outright exclusion, this would confuse 'deterioration of the injury' and 'additional relevant information'.¹⁴