Shutting the gate on deficient applications
Stocks v Insurance Australia Limited trading as NRMA Insurance & Ors  NSWSC 677
In an interesting case for compulsory third party (CTP) insurers to be aware of, the Supreme Court of New South Wales found that the Delegate of the President of the Personal Injury Commission (Delegate), in determining an application for further medical assessment of permanent impairment, must compare the new information against what was previously available. If the previous medical assessment found that an alleged injured was not causally related to the motor vehicle accident, the Delegate is required to address causation in their reasons to dismiss the application. The Court handed down its decision on 21 June 2023. In this article, we examine the case and comment on what CTP insurers should take away from the finding.
Warwick Tremayne Stocks (Claimant) was involved in a motorbike accident on 10 November 2006 and brought a claim under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The Claimant alleged that the injuries sustained in the accident gave rise to a whole permanent impairment (WPI) of greater than 10%.
The Claimant’s initial application for assessment of WPI dated back to 2009 and, since that time, several certificates were issued by the Medical Assessment Service (as it then was). This included the certificate of Assessor William Bye dated 5 March 2010, which assessed greater than 10% WPI, and Assessor Philip Truskett dated 5 July 2018, which reduced the assessment to not greater than 10% WPI.
On 18 July 2022, the Claimant filed an application for further assessment of WPI under section 62 of the MAC Act, relying on the report of Dr James Bodel dated 9 November 2021 and a statement of the Claimant’s personal trainer dated 23 August 2021 but addressing matters predating the accident.
This Claimant’s application was dismissed by the Delegate on the basis that, although the report and statement were additional relevant information under section 62(1)(a) of the MAC Act, the additional relevant information was not capable of having a material effect on the outcome of Assessor Truskett’s assessment under section 62(1A) of the MAC Act. In their decision, the Delegate outlined the procedural history, the legal test they were required to undertake, and the basis upon which the matter was dismissed.
The Claimant filed a summons seeking judicial review in the Supreme Court of NSW.
The primary issue was whether the Delegate, in considering causation and comparing the new and previously available evidence, ‘over-analysed’ the application and, in doing so, applied the wrong legal test and acted beyond their statutory power.
The Claimant submitted that the way in which the Delegate assessed the new information demonstrated that the Delegate ‘wrongfully sought to exercise herself the power or duty of a medical assessor and she applied the wrong legal test’.
His Honour Justice Chen SC stated that the role of the Delegate, in exercising their power under section 62(1A) of the MAC Act is as gatekeeper and ‘…calls for a comparison between the deterioration and/or additional information, and whether it is capable of changing the outcome of the previous medical assessment if it were placed before a medical assessor’, which is a matter for subjective satisfaction of the Delegate.
As Assessor Truskett had found that an alleged injury was not causally related to the motor vehicle accident, the Delegate was required to address causation in their reasons to dismiss the application. His Honour Justice Chen SC stated:
‘The argument in this Court had as its focus the issue of causation in connection with the cervical spine and lumbar spine… Given the nature of the issue presented, it is therefore entirely understandable why the Delegate was required to address causation of these impairments. To do so was not, as the plaintiff argued, evidence of the Delegate engaging in a “final assessment”, but merely a step in the comparative exercise that the Delegate was called upon to address under s 62(1A).‘
The Delegate’s decision was found to be consistent with the statutory directives and the Delegate’s approach was correct.
The Claimant’s summons was dismissed.
Implications for CTP insurers
This case applies to applications for further medical assessment brought under both the MAC Act and the Motor Accidents Injuries Act 2017 (MAI Act).
The Delegate, in determining that there is additional relevant information, must separately consider whether that additional relevant information is capable of having a material effect on the previous assessment. This will require a comparative analysis of the new and previously available evidence, and consideration of the issues and findings of the previous assessment (including causation if relevant).
Under section 7.24 of the MAI Act, parties may only apply for further assessment of a medical dispute once respectively. More than ever, it is important that CTP insurers undertake a timely analysis of the Delegate’s decision to determine whether judicial review should be sought on account of the Delegate’s failure to undertake a comparative analysis and consider the issues.
This article was written with the assistance of Liam Hart, Law Graduate.
 Stocks v Insurance Australia Limited trading as NRMA Insurance  NSWSC 677 at  (Stocks)
 Stocks at  referring to Rodger v De Gelder  NSWCA 97 at - and -; Miles v Motor Accident Authority of NSW  NSWSC 927 at -; AAI Ltd t/as AAMI v Chan  NSWCA 19 at  and 
 Stocks at 
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