Case update: Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192

Background

Mr Spratt (worker) was injured at work in a motor vehicle accident (MVA) on 11 October 2011.

The injury was sustained in circumstances in which the worker could claim compensation under both the Workers Compensation Act 1987 and the Motor Accidents Compensation Act 1999 (MACA).

The worker alleged that he sustained an injury to his cervical spine in the MVA and this was disputed by the employer.

As a result of an Arbitration hearing in the Workers Compensation Commission (WCC) (now known as the Personal Injury Commission), on 9 May 2015, Arbitrator Perrignon determined that the worker sustained an injury to his cervical spine in the MVA and he was referred for whole person impairment (WPI) assessment of the cervical spine.

The worker commenced proceedings against the driver and his employer claiming damages in the District Court relying on the MACA. The worker was assessed by MAS Assessor Dr Schutz for the purposes of seeing if his level of WPI was ‘greater than 10%’ as required by section 131 of the MACA to claim non economic loss (NEL) damages.

Dr Schutz found that the worker did not suffer an injury to his cervical spine in the MVA and the worker was assessed at below the NEL threshold.

The worker made an application to the MAS Proper Officer for review of Dr Schutz’s decision pursuant to section 63 of the MACA, arguing that Dr Schutz was estopped from finding that the worker did not suffer an injury to his cervical spine as determined by Arbitrator Perrignon on 9 May 2015 in the WCC.

The Application for Review was rejected by the Proper Officer. The worker filed a Notice of Motion in the District Court pursuant to Section 62(1)(b) of the MACA to have the matter referred back to Assessor Schutz. The worker argued that a medical assessor making an assessment under the MACA is bound by the findings of the WCC on the issue of causation of the worker’s injury to the cervical spine. His Honour, Judge Bozic declined to refer the matter for further assessment.

The worker appealed the primary judge’s decision arguing, inter alia, that the decision was contrary to law as it found a medical assessor was not to apply the concepts of causation as they would be applied by a court. The worker sought judicial review of the decision of the Proper Officer and sought leave to appeal the interlocutory decision of His Honour Judge Bozic.

The matter proceeded to the NSW Court of Appeal on 27 July 2016 constituted by Justice McColl , Justice Gleeson and Justice Leeming.

Decision

Justice Leeming delivered a judgement dismissing the worker’s appeal with costs. Justice McColl and Justice Gleeson agreed with Justice Leeming’s reasons and did not provide separate judgements.

The Court of Appeal held that the worker’s appeal must fail for two reasons:

• There was no issue estoppel as the worker’s motor accident claim was against the driver of the vehicle but his worker’s compensation proceedings were against the driver and employer, with liability for the latter being purely vicarious. The Court of Appeal held that as the driver could not be regarded as a privy of his employer, he could not be bound by issue estoppel
• Even if an issue estoppel arose as to causation, it does not bind an assessor determining a medical dispute in accordance with Pt 3.4 of the MACA. In this regard, the Court of Appeal noted that the MACA ‘makes clear’ that primacy is to be given the determination of the medical assessor on causation issues.

The Court of Appeal followed the reasoning in Motor Accidents Authority of NSW v Mills [2010] NSWCA 82 noting that it was factually similar and at the forefront of submissions advanced on the respondent’s behalf. The Court of Appeal noted that the MACA provides for the exclusive determination by medical assessors on questions of permanent impairment and causation and abrogates common law issue estoppel to the ‘extent that it would otherwise preclude a medical assessor from performing the tasks imposed on him or her’ under the MACA.

Implications

• MAS assessors are not bound by findings on causation made by WCC Arbitrators.

• This decision is consistent with the supremacy given to MAS Assessors under Pt 3.4 of the MACA to determine whether injuries are causally connected to a MVA and assessing WPI to see if it is greater than the 10% threshold imposed by 131 of the MACA to claim NEL damages.

• A MAS assessor’s determination on injury causation is binding only for the purposes of a MAS assessor’s assessment of WPI. CARS assessors and judges may form a different view on causation and award damages in respect of the other heads of damages.