Jubb v Insurance Australia Ltd [2016] NSWCA 153

PUBLISHED 04 Nov 2016

From our wealth of experience in motor accident compensation cases, the full extent and severity of a claimant’s injuries is usually the most contested moot points in the life of the claim. How permanently impaired an individual is from the injuries sustained in a motor accident is described as a whole person impairment, which is expressed as a percentage.

The percentage (and it has to be greater than 10%) is to assist in determining a claimant’s entitlement to general damages/ or also known as damages for non-economic loss, i.e compensation that cannot be quantified such as for the pain, loss and suffering inflicted by the injuries. Claimants and insurers frequently dispute about a claimant’s Whole Person Impairment percentage, especially in cases when it is determined to be over 10% and in circumstances where there is additional information such as to be capable of having a material effect on the outcome of the assessment.

In this article, we explore a recent NSW Court of appeal case Jubb v Insurance Australia Ltd [2016] NSWCA 153 where the parties were in dispute over the claimant’s whole person impairment concerning his psychiatric injuries.

General Facts

On 21 July 2011, David Jubb was injured in a motor vehicle accident. He made a claim against the third party insurer for damages with respect to injuries suffered in the accident. The insurer admitted liability on 1 June 2012. However, there was a dispute about the degree of permanent impairment suffered by the claimant.

Dr Baker from the medical assessment service completed the claimant’s first assessment on 9 August 2013, and determined the claimant’s psychiatric degree of permanent impairment as 13 percent, an adjustment disorder with Mixed Anxiety and Depressed Mood.

On 27 August 2014, the insurer lodged an application for a review of Dr Baker’s assessment, pursuant to s 62 of the Motor Accidents Compensation Act (“the Act) on the grounds that there was “additional relevant information” about the claimant’s injury, namely a statement of Mr David Rushworth dated 27 March 2014 (the claimant’s manager at his employer-company); and clinical notes of Ms Derya Ozturk (the claimant’s treating psychologist).

It was submitted by the insurer that the material was capable of having a material effect on the outcome of the previous assessment of Dr Baker. Why the information was material was because that the statement of Mr Rushworth appeared to suggest the claimant’s work performance was not below the standard requiring performance management.

The contention

As the insurer pressed for Dr Baker’s assessment to be reviewed, a Proper Officer from the Medical Assessment Service had to make a decision on the merits of the review. On considering the additional information, the Proper Office made the following observations:

“I note the clinical records of Dr Ozturk, indicate that he was the claimant’s treating psychologist since April 2013. Dr Ozturk recorded on 16 June 2013 that ‘things were going well’ and that the claimant seemed ‘cheerful and looked forward to seeing his children’.

“The statement made by David Rushworth dated 27 March 2014 may also be considered as additional relevant information as it post – dates the original assessment……………. the statement indicate that there are inconsistencies in relation to claimant’s reported reasons why his employment became redundant.”

On these observations, the Proper Officer decided that the information was capable of having material effect on the outcome of the previous assessment by Dr Baker.

The claimant sought judicial review of the decision of the Proper Officer and asserted that:

1. ‘Additional relevant information’ needs to amount to more than expressing a different opinion to that of the MAS Assessor. (Dr Baker in this case).

2. ‘Additional relevant information’ must raise an issue that has not already been considered by the MAS Assessor, namely, the claimant’s work performance. The claimant submitted that to permit a further assessment on the “same issue” as considered by the previous medical assessor, would discourage early resolution of compensation claims because there would be no end to the controversy.

The Decision

The Court decided that the language of section 62 of the Act that “A matter referred for assessment under this Part may be referred again…….on the grounds of…..additional relevant information”, where the phrase “referred again” suggested that additional information can relate to the “same issue” as considered by the previous medical assessor. The Court dismissed the argument that there would be no end to the controversy as a Proper Officer had a discretionary power to refer matters under section 62.

Secondly and most importantly, the Court was of the view that to prevent an Assessor from revisiting the same issues would arguably cause injustice to the parties, as an “issue” considered by the previous medical assessor could be either incomplete or inaccurate and this would have to be remedied through considering additional information that was capable of having a material effect on the outcome of the previous assessment.

This decision is certainly of value to both claimants and insurers in medical assessment disputes as the decision serves to emphasise and shift the focus on the importance of addressing what additional information is capable of having a material effect on the outcome of an assessment; and not whether the information assists to raise new issues to be  considered or issues already considered by an assessor.

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