Rodger v De Gelder [2012] NSWCA 167
NSW Court of Appeal1
In Brief
- In order to engage the provisions of s 111 of the Motor Accidents Compensation Act 1999 (the Act), a party must not only show that the new evidence is significant, but also whether or not the new evidence may have materially affected the assessment made by the claims assessor.
- In order to do this, one must look to the Statement of Reasons given by the claims assessor in assessing damages under s 94(1).
Background
The plaintiff sustained injuries in a motor vehicle accident on 24 August 2005. Liability was admitted by the defendant and the matter came before a claims assessor for assessment.
CARS proceedings
The issue for determination was whether or not the crush fractures in the plaintiff's thoracic spine at T5 and T6 were caused by the motor vehicle accident. A possible explanation for the crush fractures was that they were sustained in a work-related incident 3 months following the motor vehicle accident.
The plaintiff had undergone a further assessment at MAS in 2009 and a Further Certificate had been issued by Dr Best, who concluded that the plaintiff's impairment was not greater than 10% and the crush fractures to the plaintiff's thoracic spine were not caused by the motor vehicle accident.
The claims assessor held that he was bound by Dr Best's Further Certificate which was conclusive evidence, not only as to the plaintiff's entitlement to non-economic loss but also as to his entitlement to economic loss.
The plaintiff made an application to refer the matter back to MAS for a Further Medical Assessment pursuant to s 62(1)(b), which was refused by the claims assessor. The claims assessor assessed the plaintiff's damages at $0.00.
The plaintiff did not accept the Certificate and commenced court proceedings.
District Court Proceedings
The proceedings commenced before his Honour Judge Levy DCJ on 21 May 2012.
Several days prior to the commencement of the proceedings, the plaintiff served several supplementary medico-legal reports. The plaintiff had sent updated medical evidence, including treating doctors' clinical notes, to the doctors who were asked to advise if the material altered the opinion they had previously expressed as to whether or not the plaintiff had sustained fractures to his thoracic spine as a consequence of the motor vehicle accident. Each medico-legal expert confirmed their previous opinions that the fractures were probably a consequence of the motor vehicle accident.
Over objection, the trial judge admitted the further medical reports into evidence. The defendant then submitted that the proceedings be adjourned and the matter be referred back to the claims assessor in accordance with s 111 of the Act.
The trial judge refused the application providing his reasons as follows:
"In my view, the formulation of the test requires that the material be significant so that it may have materially affected the assessment in a way that new material may have mediated a different result in the assessment process. Here, in effect as I have already observed in an earlier interlocutory procedural decision in this matter, the so called new material is, in effect, essentially a re-statement of earlier opinions and in no sense of the word should be regarded as new material for the purpose of s 111(3)."
Court of Appeal Proceedings
The defendant filed a Notice of Motion seeking a stay of the District Court proceedings as well as a Summons seeking leave to appeal the trial judge's decision of refusing to adjourn the proceedings pursuant to s 111.
The matter came for hearing before Justices Beazley and Tobias on 23 May 2012.
The Court of Appeal ultimately refused the defendant leave to appeal. In forming their reasons, the Court noted the following two issues:
- That the defendant did not demonstrate that the trial judge's evaluation was wrong, in that the further medical material was not of such a nature that it may have materially affected the assessment if it had been made available to the CARS assessor.
- The defendant had not demonstrated that the provisions of s 111 had been engaged.
At paragraph 26, her Honour Justice Beazley stated the following:
"Section 111(3) involves an evaluation by the court as to whether evidence may have materially affected the assessment of the Claims Assessor. Minds might differ in determining whether that is so. On this court's consideration of the further medical evidence relied upon on the leave application to demonstrate that the matter fell within s 111(3) we were not satisfied that evidence may have materially affected the assessment and we saw no error in the Trial Judge's assessment of that question."
The claims assessor's determination of the damages to which the plaintiff was entitled was based upon his understanding that he was bound by Dr Best's Further Certificate. The certificate did not include the plaintiff's fractured thoracic vertebrae.
Accordingly, even if the claims assessor had the further medical evidence at the time of assessment, it would not have materially affected the assessment as he considered he was bound by Dr Best's certificate.
The claims assessor's decision was before the decision in Allianz Australia Insurance Limited v Serria Girgis & Ors 2 , where the court made it clear that the issue of causation is binding only as to the entitlement to non-economic loss damages.
In light of Girgis, had the provisions of s 111 been engaged and the new material which was relied upon by the plaintiff come back before the claims assessor, he may have referred the matter back to MAS pursuant to s 62 of the Act, or gone on to assess all other heads of damage contrary to the causation findings of Dr Best.
Implications
Section 111(3) is concerned with the assessment made by a claims assessor under s 94(1) for the purpose of issuing a certificate under s 94(4).
When determining whether or not to invoke the provisions of s 111, the parties must look at the material which is to be relied upon and then consider whether or not the provision of this material would have affected or materially altered the claims assessor's decision when the initial claims assessment was made.
Footnotes
1 Beazley JA and Tobias AJA
2 [2011] NSWSC 1424
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