NRMA Insurance v State Insurance Regulatory Authority (Kun Fen Chen) [2017] NSWSC 1566

Supreme Court New South Wales

Medium Neutral Citation: NRMA Insurance v State Insurance Regulatory Authority (Kun Fen Chen) [2017] NSWSC 1566 Hearing dates: 6 December 2016 Date of orders: 23 November 2017 Decision date: 23 November 2017 Before: Garling J Decision: (1) Summons dated 24 August 2016 dismissed. (2) Plaintiff to pay defendants' costs. Catchwords: ADMINISTRATIVE LAW – judicial review – whether Proper Officer erred in refusing a referral to a review panel under Motor Accidents Compensation Act 1999 (NSW), s 63 – whether Proper Officer erred in finding that there was no error of a material respect concerning assessment "on the papers" for claimants outside Australia – held no error Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143 Texts Cited: Not applicable Category: Principal judgment Parties: Insurance Australia Ltd t/a NRMA Insurance (P) State Insurance Regulatory Authority (D1) Kun Fen Chen (D2) Representation: Counsel: J Gracie (P) Submitting Appearance (D1) D Campbell SC/T Moisidis (D2)

Solicitors: Curwoods Lawyers (P) Crown Solicitor's Office (D1) Slater & Gordon (D2) File Number(s): 2016/254592 Publication restriction: Not Applicable

Judgment 1. On 24 August 2016, the plaintiff, Insurance Australia Ltd t/a NRMA Insurance ("NRMA Insurance"), brought proceedings by way of Summons against the first defendant, the State Insurance Regulatory Authority ("the Authority"), and the second defendant, Mr Kun Fen Chen. 2. The first defendant has filed a submitting appearance and has taken no active part in the proceedings. 3. The plaintiff's Summons seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (the "Supreme Court Act") of a decision of the Proper Officer of the first defendant dated 27 May 2016, in which the Proper Officer dismissed the plaintiff's application for review of a Medical Assessment Certificate ("MA Certificate") and Statement of Reasons dated 21 February 2016.

Background 1. On 11 March 2012, Mr Bai Zhou Chen (21 years old at the time) was killed in a motor vehicle accident in Braidwood, New South Wales. 2. Following the accident, Mr Chen's father, the second defendant ("the claimant"), his mother, Mrs Ruo Shan Wu, and his daughter, Ms Yan Fei Chen, commenced proceedings in the NSW District Court against NRMA Insurance, claiming damages for non-economic loss. In those proceedings, a dispute arose as to whether the claimants had suffered a degree of permanent impairment greater than 10%, being a precondition for an award of damages for non-economic loss under s 131 of the Motor Accidents Compensation Act 1999 ("the MACA"). 3. On 19 August 2014, pursuant to s 132 of the MACA, the permanent impairment dispute was referred to a medical assessor. On 21 February 2016, the medical assessor, Dr Matthew Jones, issued an MA Certificate for the claimant certifying the following: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: • Persistent complex bereavement disorder and major depressive disorder (not inconsistent with the list of injuries to be assessed)." 1. An MA Certificate in similar terms was issued for the claimant's wife and daughter. 2. On 8 April 2016, pursuant to s 63 of the MACA, NRMA Insurance applied to the Proper Officer of the State Insurance Regulatory Authority to refer Dr Jones' medical assessments to a review panel. On 27 May 2016, the Proper Officer, Ms Sarah Kallipolitis, rejected the referral applications and issued reasons for her decision.

Proceedings in this Court 1. On 24 August 2016, NRMA Insurance filed three Summonses in this Court, one Summons relating to the claimant and each family member. The Summonses sought an order pursuant to s 69 of the Supreme Court Act quashing the decision of the Proper Officer to refuse a review of Dr Jones' medical assessments for each of the claimants. The Summonses also sought an order that the medical assessments be referred to a review panel pursuant to s 63(3) of the MACA. 2. Each of the Summonses alleges the same error in the Proper Officer's reasons. Accordingly, although this judgment deals with the Summons filed in relation to the Proper Officer's decision on Mr Kun Fen Chen's medical assessment, the orders I make will apply equally to the other two Summonses which have been filed.

The Medical Assessment 1. It is convenient to summarise the MA Certificate and Statement of Reasons of the medical assessor, Dr Jones. 2. Dr Jones began by noting several difficulties in assessing the three claimants. He explained: "I was originally asked to do a paper assessment and I considered this inappropriate as the most relevant information was three assessments done by Dr Bruce Westmore, psychiatrist, on 16 May 2014 in Guangzhou in China. Dr Westmore interviewed all three claimants together, in the presence of a Mandarin interpreter and received collaborative information from each of the other two claimants with regards to each of his reports … I considered this circumstance at length and believed that it was unreasonable to come to a conclusion based on predominantly this information and I thought that the information gleaned was likely tainted by the presence of the other two claimants during the interview. I suggested to the Medical Assessment Service that the fairest way to assess these three claimants was to send two medical assessors to China to do a panel style assessment so some concurrence could be obtained. This was deemed unfeasible. The second best alternative that we could come up with was to organise a panel style assessment by audio visual link to China and this was arranged for 18 September 2015 … Ms Chen was the first to be assessed and as the assessment commenced it was realised that she was utilising an electronic tablet for the assessment and that her parents were also in the room. This is despite it being stipulated that a tablet or iPad was not appropriate for the AVL assessment. Nor did we deem it appropriate that the other claimants were in the same room. On top of this, the quality of AVL was limited and disrupted and the assessment was subsequently abandoned." 1. Dr Jones went on to note that, in light of the difficulties with undertaking an audio visual assessment, he had been asked to undertake an assessment by reference to the documents with which he was provided, including the report of Dr Westmore dated 26 May 2014. Dr Jones continued: "As such I have little confidence in the fairness of the process however I have been requested to proceed nonetheless". 1. Dr Jones also noted that over 18 months had elapsed since Dr Westmore's reports, and therefore the claimant's present level of impairment was uncertain. Dr Jones stated that his MA Certificate related only to the claimant's level of impairment as at the date of Dr Westmore's assessment, being 16 May 2014. 2. Dr Jones recounted the claimant's history as contained in Dr Westmore's report. He noted that he had no history of psychiatric or psychological problems and that, prior to the death of his son, he was working full-time in stable employment as a sales consultant with a real estate company and did not have any impairment in functioning. 3. Dr Jones set out in detail a history of the claimant's symptoms and treatment following his son's death in the motor vehicle accident. The claimant had been seen by a psychiatrist and treated with medication. 4. As to the claimant's current functioning, Dr Jones noted that the claimant had told Dr Westmore that his contact with friends had significantly reduced since the accident and that he no longer had interests or hobbies. 5. A review of documentation was undertaken, including the report of Dr Westmore and documents from the Fourth People's Hospital in Shantou, China. Dr Jones noted: "Dr Westmore diagnosed persistent complex bereavement disorder and a major depressive disorder. He opined a whole person impairment of 19%". 1. Dr Jones also noted the following report from the Shantou Hospital dated 13 June 2012: "There were abnormalities noted on mental state and it says 'apparent anxiety, low mood, lost interest in previous hobbies, keeps saying life is meaningless, self blame, guilty, keep saying that he was not a responsible father, sad, teary'. The provisional diagnosis was 'stress related disorder, adaption disorder, depressing reaction'. …" (sic) 1. He further noted on 18 June 2012: "Psychological test demonstrates the patient experiences depressing emotion … There is recommendation for psychological treatment, half an hour at a time, twice a week …" 1. Dr Jones was also provided with a medical certificate, to which he had regard, dated 31 June 2012, which confirmed a diagnosis of a depressive illness. 2. Dr Jones recorded various details from statements made by Mr Chen dated 6 December 2013 and from a statement by his wife which was also dated 6 December 2013. 3. Dr Jones recorded the submissions of NRMA Insurance dated 8 September 2014, which suggested that due to the inadequacy of information and documents in support of the claim, that he, as a medical assessor, would not be in a position "… to conduct a proper assessment of the claimant's whole person impairment under the PIRS rating". 4. Dr Jones came to these conclusions about the claimant: "I have no evidence to suggest that Dr Westmore's assessment of Mr Chen was not essentially correct. My understanding of the documentation provided is consistent with Dr Westmore's diagnosis of persistent complex bereavement disorder and major depressive disorder. These have resulted from the death of his son in a motor vehicle accident and there appear to be no other competing factors as to causation." 1. Dr Jones went on to make the findings which I have recorded at [6] above. He assessed the claimant's whole person impairment at 19%. There was no evidence of any pre-existing or subsequent impairments to warrant any adjustment to this finding. 2. In so doing, Dr Jones, as required by the Guidelines, completed the relevant PIRS table, allocated the appropriate score and by the required method came to the percentage of whole person impairment which I have set out above.

Decision of the Proper Officer 1. On 8 April 2016, NRMA Insurance applied to the Proper Officer for a review of Dr Jones' assessment. In support of the application, NRMA Insurance made the following submissions: 1. The reliance by Dr Jones on the out-dated report of Dr Westmore and foreign clinical records gave rise to unfairness, which Dr Jones himself recognised in his Statement of Reasons; 2. The medical assessment did not proceed in accordance with the Guidelines for the Assessment of the Degree of Permanent Impairment ("the Guidelines"). In particular, Dr Jones was not provided with all relevant medical and hospital records, and did not have the opportunity to conduct a clinical examination of the second defendant; and 3. The lack of up to date information available to Dr Jones meant that it was impossible for him to form an opinion as to the second defendant's current state of permanent impairment by applying his medical experience and expertise. 1. On 12 May 2016, the claimant lodged a response to the application. The claimant submitted that it was reasonable and necessary for the medical assessment to take place "on the papers", as he could not travel to Australia for a medical assessment and continued to reside in a rural location in China. The claimant further submitted that Dr Jones had considered all the available material. 2. On 27 May 2016, the Proper Officer dismissed the application for review. She determined that she was not satisfied that there is cause to suspect that the medical assessment is incorrect in a material respect. 3. In her Statement of Reasons for Decision, the Proper Officer said: "1. The applicant provides numerous submissions, which are not detailed here, in support of the Review application submitting that the medical assessment proceeded incorrectly according to the [Medical Assessment Service] Guidelines, and that "The incorrect procedures in the Medical Assessment was an error in a material respect…" 2. The respondent submits that: 'The Review Panel can only lawfully endorse the certificate of Assessor Jones and cannot consider the underlying procedures. It is submitted that the MAS Review Application should not be referred to a Review Panel as the submissions provided by the Insurer are incorrect and unwarranted'. 3. As stated by the respondent, 'All options with respect to a MAS Assessment have already been exhausted. The Claimant's circumstances have not changed. The Claimant cannot travel to Australia for the purposes of a MAS Assessment and continues to reside in the regional centre of Shantou in mainland China. The Claimant is unable to access adequate technology … SIRA determined that the only option was for the assessment to proceed on the papers. This has been conducted and a valid MAS Assessment has been provided by Assessor Jones'. 4. The claimant is unable to travel to Australia for assessment, the attempt to Skype was unsuccessful, and therefore Assessor Jones was told to assess the claimant on the papers. The applicant's objection to this prior to the assessment was acknowledged, however it was determined that the matter needed to proceed in this way. 5. The applicant has not demonstrated any evidence to indicate that Assessor Jones' assessment of the degree of permanent impairment is incorrect in a material respect. The applicant in fact states that, 'The errors in the procedure were not caused by the Assessor. The cause was the lack of information and the reliance upon an outdated report of a medico-legal psychiatrist'. 6. It cannot be argued that the assessment was incorrect because of the nature of the information before the Assessor. However, if either party was to get additional information about the claimant's condition, this could possibly form the basis of an application for a further assessment under section 62 of the Act." 1. The Proper Officer concluded that she was not satisfied that there was reasonable cause to suspect that the original medical assessment was incorrect in a material respect. Accordingly, the Proper Officer dismissed the application for a review.

Amended Summons 1. On 6 December 2016, when NRMA Insurance's Summons came on for hearing in this Court, leave was granted to file in Court an Amended Summons dated 5 December 2016. 2. It is convenient to set out the grounds of the Amended Summons. They are as follows: "(a) The Proper Officer's consideration of the matter was not attended by a proper, genuine or realistic consideration of the material before her. … (b) The Proper Officer failed to publish any relevant analysis thereby causing the decision to be attended by uncertainty. (c) The Proper Officer adopted an incorrect test as part of her decision. … (d) The Proper Officer failed to consider relevant considerations concerning the conduct of the medical assessment. (e) The reliance upon the report of Dr Westmore by the medical assessor and the medical assessment procedure was unfair. (f) The permissive exercise by which the First Defendant compelled the medical assessor to act contrary to Guidelines constituted: (i) a matter which might have given rise to a material incorrectness within s 63. (ii) an impermissible act of direction by the First Defendant to the medical assessor, in that she recorded that the medical assessor had been told to assess the Second Defendant on the papers. (iii) the inflexible implementation of a policy. (iv) an exercise which satisfied section 63(3) on any reasonable criteria. (g) The decision of the Proper Officer was so unreasonable that no reasonable authority could have so decided. … (h) The Proper Officer identified the wrong question. … (i) The Proper Officer identified the wrong test and applied an improper test."

The Application for Review 1. Having regard to the submissions in this Court of an error on the part of the Proper Officer, the detail of which will be referred to later, it is appropriate to record a summary of the plaintiff's submissions to the Proper Officer. 2. At the commencement of that application, the plaintiff set out a précis of the grounds for contending that the MA Certificate should be set aside. The plaintiff said: "2. The grounds the Insurer relies upon are enumerated as follows. Consistent with instructive authority the Proper Officer is invited to consider the following matters en globo rather than separately: 2.1 There is reasonable cause to suspect that significant error has been made which, in fairness, suggests that the review should be allowed to proceed. 2.2 The medical assessment itself proceeded incorrectly. 2.3 The incorrect procedures in the medical assessment was an error in a material respect and was not trivial, insignificant or immaterial. 2.4 The errors were material in the sense that they contributed to a decision which was or might have been different, but for the errors. 2.5 The Guidelines promote the need, in psychiatric medical assessments, for a clinical examination with the claimant. There having been no effective clinical examination, there is error in a material respect. 2.6 The medical assessor was unable to assess the ingestion of medication and was thereby unable to assess the prospects of improvement or adjustment of the Whole Person Impairment. There having been no opportunity to assess this, there is error in a material respect. 2.7 The particulars set out in the application were insufficient to permit the medical assessor to properly conduct his function such that all matters taken together could lead to different results. 2.8 The medical assessor was, by the manner of presentation on the application for medical assessment, impeded in forming his own medical opinion and did not form his medical opinion based upon his own medical experience." 1. All of these grounds were directed towards the procedure followed by the medical assessor in coming to the conclusions expressed on the MA Certificate of Assessment. NRMA Insurance claimed that such were the deficiencies that the assessment was incorrect in a material respect. 2. In aid of these submissions, NRMA Insurance cited the Medical Assessment Guidelines ("the Guidelines"), and the importance placed in them on a clinical examination as a tool for a thorough and accurate assessment of permanent impairment. NRMA Insurance emphasised to the Proper Officer, that no clinical assessment had been undertaken personally by the assessor before issuing the MA Certificate. 3. In these proceedings, the plaintiff, NRMA Insurance, complains that the Proper Officer did not properly address the question posed by the legislation, because, in effect, the Proper Officer did not grapple with the real issue before her, namely whether the underlying assessment procedure was fair and adequate to enable a proper assessment to occur. 4. NRMA Insurance criticises the statement and acceptance of the claimant's position that a Review Panel "… cannot consider the underlying procedures". The Proper Officer's conclusion in this respect was: "6. It cannot be argued that the assessment was incorrect because of the nature … of the information before the assessor. …"

Method of Assessment 1. The facts underlying the method of assessment are uncontroversial. Largely they are derived from the report and reasons of the assessor. Relevantly, they are these: 1. the claimant lives in the People's Republic of China, in a rural area outside a regional city, Shantou; 2. the claimant was examined and assessed by Dr Bruce Westmore, an expert psychiatrist, who travelled for that purpose to the People's Republic of China. A report dated 26 May 2014 was prepared and served in support of the claim for personal injury; 3. the claimant sought a medical assessment "on the papers" in the application made to the Authority. NRMA Insurance, in submissions in reply, did not explicitly oppose such an assessment, but sought that it be delayed "… to allow up to date treating records" to be provided by the claimant; 4. NRMA Insurance did not seek the delay so as to enable it to arrange for an expert assessment of the claimant in the People's Republic of China. Nor did it place any further material before the assessor; 5. NRMA Insurance added this remark at the end of its submissions: "The insurer queries whether the [Authority] still arranges overseas assessments as it has for overseas claimants in the past"; 1. the medical assessor initially considered a paper assessment to be inappropriate. He suggested an assessment in person by sending two medical assessors to the People's Republic of China. This was rejected by the [Authority] as unfeasible. An attempt was made by the medical assessor, together with another medical assessor, to conduct a panel assessment via an audio visual link (AVL) to the People's Republic of China. This attempt was abandoned for a number of reasons including the limited quality of the AVL which was often disrupted; 2. subsequently, the medical assessor was directed by the relevant office of the Authority to undertake the assessment based on the documents provided; 3. the medical assessor expressed a number of reservations about the certainty with which an assessment of the current level of impairment could be made. He also said that he had "… little confidence in the fairness of the process" although he recognised that he had been requested to proceed nonetheless. 1. It is of significance that the medical assessor was able, proceeding in the way in which he had been directed, to reach a conclusion about the level of whole person impairment, notwithstanding the expressed reservations.

NRMA Insurance's Argument in the Proceedings 1. NRMA Insurance submitted that the provisions of s 63 of the MACA do not preclude an examination by a review panel of the nature and methodology of the underlying procedure followed by the medical assessor. NRMA Insurance submitted that the term "medical assessment" as it is used in s 63 is properly to be regarded as including the assessment process, the result of which is the publication of an MA Certificate containing an assessment of whole person impairment. NRMA Insurance pointed to clause 16.21.1 of the Guidelines which, it submitted, permits full re-examination of all aspects of the assessment made by the medical assessor, which it further submitted must include the methodology used by the medical assessor. 2. Clause 16.21 of the Guidelines is in the following form: "16.21 The Review Panel is to hold an initial meeting on teleconference within 30 days of the date the panel is convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and, if so, set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original assessor is to be confirmed or revoked; …" 1. As well, NRMA Insurance pointed to the contents of subsection 63(3A) of the MACA, which is in the following terms: "The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned." 1. NRMA Insurance points to, and calls in aid, the judgment of Basten JA in Meeuwissen v Boden [2010] NSWCA 253; (2010) 78 NSWLR 143 at [18] where his Honour said: "18. The phrase 'in a material respect' is imprecise. It undoubtedly can mean that 'the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353 (Mason CJ). On the other hand, it can refer to the process by which the outcome was achieved. The latter approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome. There are various considerations in s 63 which suggest the latter view is to be preferred. 19. First, what must be incorrect in a material respect is 'the medical assessment' and not the certificate which results from the assessment. … In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error. 20. Secondly, and consistently with the first reason, the phrase 'in a material respect' is less precise than 'capable of having a material effect on the outcome of the previous assessment', being the language of s 62(1A). … 21. Thirdly, the power conferred on the proper authority is not discretionary, once the requisite state of satisfaction is achieved. Thus, once satisfied as to the relevant matter, the proper officer 'is to' arrange for the application to be referred: s 63(3). 22. Fourthly, the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that 'there is reasonable cause to suspect' that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation as opposed to identifying possible error. 23. Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 is that of a gatekeeper, not a decision-maker. When there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. … 24. Finally, the role of the Review Panel is not limited to a review of 'that aspect of the assessment' affected by a possible error. Rather, the Panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured so that a proper assessment has been made of the whole of the matters in dispute."

NRMA Insurance's Oral Submissions 1. Between the time of the filing of the written submissions and the oral submissions, NRMA Insurance came into possession of a document entitled "Venue Policy" of the Medical Assessment Service of the Authority. Whether or not that policy was previously available was debated, but it is not necessary to determine that question. 2. Relevantly, the Venue Policy included the following statement: "2. The facilitation of assessments for claimants residing overseas 2.1 MAS is unable to offer in person medical assessments to claimants residing overseas. 2.2 Where a MAS assessment is requested for a claimant who resides overseas, MAS will, where reasonable and necessary, request the claimant to return to Australia for a medical assessment. 2.3 Urgent MAS assessments can be allocated for short term return visits to Australia. 2.4 Where travel to Australia is unreasonable, unnecessary or prohibited, MAS will allocate the assessment to a medical assessor to be conducted in Australia on the papers. 2.5 A party to an assessment may make a submission to the Proper Officer if they consider that it is reasonable or necessary for the claimant to travel to Australia for a medical assessment. The Proper Officer will consider any such submission and determine the way in which the assessment is to proceed." (emphasis added) 1. In the course of oral submission, counsel for NRMA Insurance informed the Court that it would not be open for a panel of medical assessors to undertake an assessment of the claimant whilst in the People's Republic of China as part of a statutory function. Senior counsel for the claimant did not demur from this proposition. 2. Counsel for the plaintiff submitted however that the appropriate arrangement which ought to have been made would be to have sent two medical assessors to Hong Kong where they would be entitled to carry out their statutory function, of assessing the claimant and his family members. 3. Counsel acknowledged that the Authority could not require or compel the individual claimants to attend an assessment in Hong Kong, but submitted that any failure so to do may form a proper basis for a different form of proceedings, and relief, the details of which were not specified. 4. Counsel went on to draw attention, in light of the contents of paragraph 2.1 in the Venue Policy, to the proposition that the Proper Officer, when determining the application for a further assessment, applied that policy in a non-flexible way, without adequately expressing any reasons for such approach. 5. The submission continued: "So in the background, the plaintiff in these proceedings has said look, it seems to be the case on what little we can find, that the Proper Officer may have been subject to an inflexible policy of her employer and the document which has been provided yesterday fits squarely within that designation. It is a policy which would have informed the Proper Officer had she turned her mind to it. Perhaps more importantly, your Honour, the plaintiff in these proceedings would then know the reason or a reason why it failed in its review application. And the reason could have been clearly stated. The first defendant does not facilitate the assessment of all overseas MAS assessments. … All of the disinhibitions that might be found in overseas foreigners who nonetheless are entitled to the benefit of this Act, are swept away by a single, what appears to be, inflexible, policy." 1. Counsel also pressed the submission that the reasons of the Proper Officer were inadequate, thereby constituting an error of law on the face of the record.

Statutory Scheme 1. It is necessary when considering the submissions of the plaintiff with respect to the nature of the assessment, to consider the statutory scheme. The Medical Assessment Service is an operational unit of the Motor Accidents Authority (now the first defendant Authority) pursuant to s 57A of the MACA. 2. When a disagreement exists between a claimant under the Scheme and an insurer about, inter alia, the degree of permanent impairment of a person whose injury was caused by a motor vehicle accident, and whether that permanent impairment exceeds 10%, such disagreement is dealt with under Pt 3.4 of the MACA. 3. Section 59 requires the Authority to appoint a medical assessor, or medical assessors, for the purposes of the Part. 4. Section 60 of the MACA enables a medical dispute to be referred for assessment by the Authority to one or more medical assessors. 5. Section 61 provides that a medical assessor is to give a Certificate as to the matters referred to him or her for assessment. In context, this means the medical assessment matters of the kind defined in s 58. Relevant here was whether the whole person impairment exceeded 10%. Section 61(9) of the MACA provides that a Certificate issued by a medical assessor is to set out the reasons for any finding as to any matter certified in the Certificate. 6. Section 65 of the MACA is also relevant. It provides: "(1). Medical assessments under this Part are subject to relevant provisions of Motor Accident Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment. (2) … (3) A medical assessor is not subject to control and direction by the Authority or any Public Service employee with regard to any of the decisions of the assessor that effect the interests of the parties to a medical assessment …" 1. A number of the Guidelines are also relevant here. 2. At the time of the assessment in question, the Guidelines which were in effect were those gazetted on 11 July 2008 with effect from 1 October 2008. 3. The Guidelines are made pursuant to s 44(1)(d) of the MACA and, as is clear from s 65(1) of the MACA, the Guidelines operate by force of law, in effect as if they were delegated legislation. 4. Although, in general terms, disputes are allocated to medical assessors promptly, Guideline 9.7 provides that an officer of the Authority may defer the allocation of a dispute to a medical assessor for a period not exceeding six months at a time. 5. Guideline 9.10 includes the following: "9.10 When a dispute is considered ready to be allocated for assessment, an officer of [the Authority] shall determine the way in which an assessment is to proceed and may: 9.10.1 request that a claimant attend a medical or other examination or examinations at a designated location (see cl 9.11); 9.10.2 request that one or more medical assessors assess the dispute on the documentary material provided, having considered any submissions from the parties on this issue (see cll 9.11 and 9.12); …" 1. The officer of Authority responsible for the allocation of a dispute is entitled, according to the Guidelines, to make the determination set out in cl 9.10.2 above. Any such determination has to accord with cl 9.12 which is in the following terms: "9.12 In the case of cl 9.10.2, an officer of MAS may determine that a matter be assessed without a medical examination if the officer of MAS is satisfied that: 9.12.1 the parties consent; 9.12.2 that an examination is considered unnecessary or impractical; or 9.12.3 there are other reasons why an examination is not feasible or appropriate." 1. Clause 9.18 permits a proper officer to reallocate a matter to a different assessor if the assessor is unable to deal with the matter. 2. Chapter 11 of the Guidelines provides that an assessor may determine their own procedure for the conduct of an assessment and may enquire into any issue in such manner as they think fit. The assessor is also to inform him or herself on any issue "… as they see fit". 3. It is to be observed from the contents of the medical assessor's reasons set out in [12] above that the term "unfeasible" was recorded by the medical assessor as being the basis for the rejection of his proposal that two medical assessors travel to China to do a panel-style Assessment. 4. There is no direct evidence as to the steps taken within the Authority with respect to the determination of the method by which the assessment was to be undertaken in respect of these three claims. 5. It is clear however, having regard to the terms of the Guidelines, and what the medical assessor says, that an officer of the Authority determined that the assessment should take place on the documents in accordance with cl 9.10.2 of the Guidelines and, further, that the officer of the Authority who made that determination must have been satisfied that a medical examination of the claimant was not feasible or appropriate, or else was impractical within the meaning of those terms in cl 9.12. 6. Given the circumstances, that the claimant was located in Shantou, and that a medical assessment by audio-visual link was unsuccessful, a determination that the assessment should take place on the papers as was made by the relevant officer of the Authority, was on its face unexceptional. It was certainly a determination that was open to the relevant officer. 7. That determination necessarily pre-existed and was entirely separate from the assessment. It was the determination by which the methodology of the assessment was to take place. 8. Consequent upon that determination, notwithstanding his reservations, the medical assessor undertook the very task that he was directed so to do. In so saying, I am not suggesting, nor did the medical assessor say, that he had been directed as to what the result of his assessment should be. Such a direction, if ever given, would be contrary to the Guidelines and the appropriate procedure.

Discernment 1. In all of those circumstances, I reject the submission that the Proper Officer, in undertaking her function in accordance with the legislation, applied the wrong legal test. On the contrary, I am satisfied that the Proper Officer's approach to the issue of whether it was open to the Review Panel to engage in questioning whether the assessment should take place on the papers, by determining that it was not a function which it was entitled as a matter of law to perform, was correct. 2. Consequently, that determination did not provide a basis for a referral by the Proper Officer to a Review Panel, on the basis that the assessment was incorrect in a material respect. 3. There are a number of reasons for this conclusion. 4. First, whilst the assessment undertaken by the medical assessor was done in a constrained manner – on the papers – such a form of assessment is contemplated as a permissible one for a medical assessor acting in accordance with the Guidelines. 5. Secondly, NRMA Insurance did not point to any reason why the constraint assessment did not arrive at the correct result. Rather, it chose to concentrate on disputing the correctness of the constraint placed upon the process. It must be taken to have accepted that there was no error of a material kind in the substantive assessment. 6. Thirdly, in substance and effect, NRMA Insurance sought to attack the earlier decision of the relevant officer of the authority to direct an assessment on the papers by contending that the medical assessor was in error in a material respect by conducting the medical assessment in that way. But, the medical assessor had, in the particular circumstances, no choice. He either conducted the assessment in that way, or declined so to do. NRMA Insurance did not contend that the medical assessor made a material error by failing to decline to conduct the assessment. That is unsurprising. The logical consequence of such an approach would have resulted in the Review Panel declining to conduct an assessment. 7. Fourthly, on the material before this Court, and before the Proper Officer, the decision made by the relevant officer of the Authority to direct an assessment on the papers, assuming it to have been open to challenge, was an obviously correct one. The claimant was living in the People's Republic of China. A medical assessment under the statute by one or more appointed medical assessors could not take place in China. The relevant officer was confronted by the inadequacy of an attempted assessment via AVL, and it was not apparent that the claimant, or his family members, were intending on travelling to Australia, or anywhere else outside China. On that view, the only available course, and certainly a rational one, was to direct that the assessment take place on the papers. 8. It is necessary to note that this conclusion is not inconsistent with the decision of Meeuwissen, set out earlier. That decision was not directed to, and not authority supporting, the proposition that the Proper Officer must consider the mode of assessment which another officer of the Authority has directed to take place. On the contrary, the decision is directed to whether the Proper Officer considered both the context of the assessment as revealed by the Statement of Reasons of the medical assessor, as well as the final percentage of whole person impairment set out in the MA Certificate. 9. It is for these reasons that NRMA Insurance has not persuaded me that the Proper Officer's refusal to refer to the medical assessment and the MA Certificate to the Review Panel for its consideration was attended by any error at all. 10. The remaining issue is whether the Proper Officer gave adequate reasons. The Guidelines address this question. 11. Guideline 16.11 requires that the Proper Officer is to consider the application for review within 10 days of the final compliance date for the interested parties to lodge their documents. Clauses 16.12 and 16.13 of the Guidelines deal with a decision to refer an assessment to a Review Panel. Clause 16.14 deals with a decision to dismiss the application. Clause 16.15 of the Guidelines is in the following form: "16.15 The Proper Officer shall advise the parties as to whether the application is accepted and will be referred to a Review Panel or is dismissed, supported by a brief statement of reasons, within five days of considering the application." (emphasis added) 1. It is clear from the existence of a reasonably short timetable within which the Proper Officer is required by the Guidelines to make a decision, and to provide reasons, when considered with the requirement for the Proper Officer only to support their decision "by a brief statement of reasons" that the Guidelines do not call for any extensive record of the decision, and the reasons underlying it. 2. Here, the Proper Officer set out the material which was taken into account, the issues in dispute, and noted the submissions which had been made.. This was provided together with the Proper Officer's conclusion that the decision to conduct an assessment on the papers was correct and that there is nothing in the material relied upon by the applicant for the review which demonstrated the requisite error. Brief reasons for that are recorded, namely, that the argument about error, in effect, did not refer to the correctness of the assessment made by the medical assessor but, rather, sought to attack the assessment process which was used by the medical assessor, which the Proper Officer concluded was not open for attack. 3. Nothing more, in this case, was required by the Proper Officer for the expression of her decision. 4. I am satisfied that although the reasons were brief, they were adequate and fell within the Act and Guidelines. No error of law has been demonstrated. 5. It follows that the applicant's Summons must be dismissed with costs.

Orders 1. I make the following orders: 1. Summons dated 24 August 2016 dismissed. 2. Plaintiff to pay defendants' costs.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2017