“Judicial consideration of section 63(3) of the Motor Accidents Compensation Act confirms “Material” and “Error” are mutually dependant terms ” – Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWSC 106

Author: Cherilyn Ribbons

Judgement Date: 25th February, 2010

Citation: Meeuwissen v Boden and Motor Accidents Authority of New South Wales [2010] NSWSC 106

Jurisdiction: New South Wales Supreme Court[1]

In Brief

  • In referring an application for Review, a Proper Officer must hold a reasonable belief or suspicion that correction of the alleged error will result in a materially different outcome of the Assessment, where there is an allegation that a Medical Assessment Service (MAS) Assessor has made a reviewable error.
  • The error must be of some material significance.
  • “Material” within the meaning of s 63(3) of the Motor Accidents Compensation Act (MAC Act) has been judicially defined as being whether or not the correction of the error has the potential to result in a whole person impairment assessment falling below, or exceeding, the 10% threshold as set out at s 131 of the Motor Accidents Act.

Background

The plaintiff brought an application pursuant to the provisions of s 69 of the  Supreme Court Act  1970, contending that a decision by the MAS Proper Officer to dismiss a MAS Review Application was wrong in law and amenable to judicial review.

The plaintiff was injured in a motor accident on 22 May 2000 and sustained fractures to the left ulnar and elbow.

In 2004, the plaintiff sought an assessment of permanent impairment (WPI) by the Medical Assessment Service.

The plaintiff’s injuries were assessed at 10% WPI. Accordingly, there was no entitlement to non-economic loss, as per section 131 of the MAC Act.

In 2009, the plaintiff lodged an Application for Further Assessment pursuant to section 62 of the MAC Act as medical evidence indicated that the plaintiff’s injuries had deteriorated since the earlier 2004 assessment. 

The medical evidence in question had been obtained by the plaintiff’s qualifying specialist who assessed the plaintiff’s injuries in June 2008 at 12% WPI.

Notably, this would have would have entitled the plaintiff to non-economic loss if a MAS Assessor had made the same assessment.

The Further Assessment application was successful and the further assessment of the plaintiff’s injuries took place on 31 March 2009. However, the allocated Assessor, Dr Boyce, certified that the plaintiff’s WPI still fell below the 10% WPI threshold. Specifically, a 4% WPI was assessed.

A Review Application was brought by the plaintiff, pursuant to s 63 of the Act, with the plaintiff alleging a material error in the assessment. The alleged error being that the Assessor had failed to assess the left elbow condition, whereas the Assessor conducting the 2004 had assessed that condition.

The Proper Officer dismissed this Application for Review stating that a correction of the identified error in Assessor Boyce’s assessment would not result in a WPI assessment which exceeded the 10% WPI threshold, and therefore the omission was not a material error.


Judgment

The Application came before Latham J for determination.

Her Honour turned her mind to various judicial definitions of “material” in reaching her ultimate decision that the MAS Proper Officer was not wrong in law and the decision of the Proper Officer was therefore not amenable to review.

Her Honour ultimately held that a “material” error was one having the potential to change the claimant’s entitlements to non-economic loss. Her Honour decided, at paragraph 2:

“I would construe s 63(3) as requiring a belief on reasonable grounds that the assessment involved an error, which was a relevant error having regard to the purpose of the assessment, namely, to determine whether the plaintiff had a WPI above 10%, and that it affected the outcome of the assessment in that respect.”

Thus, in section 63(3) “material” is used to define the nature of the error made by the Assessor.

In this instance, for the plaintiff’s application to pass through the filter mechanism of s 63(3), the Proper Officer had to believe that the error influenced the assessment to the extent that a WPI of greater than 10% would have been found but for the error.

While the Proper Officer accepted that the Assessor had made an error in his failure to assess a particular injury, ultimately the error was not material to the assessment. The Proper Officer had calculated the WPI to include the omitted injury and arrived at a WPI which did not exceed the threshold.

Her Honour dismissed the plaintiff’s application on the basis that there was no error in law, because that approach to materiality (ie consideration of the earlier MAS assessment), as argued by the plaintiff:

“[W]ould require the proper officer to go well beyond the remit of section 63(3). In my opinion, the proper officer applied the correct test and there has been no jurisdictional error.”


Implications

This case examines the construction of section 63(3) and the mutually dependant relationship between the terms “material” and “error”.

An error will only be considered material if it has the potential to change the injured person’s entitlement to non-economic loss.


[1]        Justice Latham