MAS Jurisdiction Clarified
June 24, 2016
Insurance Australia Ltd t/as NRMA Insurance v Scott  NSWCA 138
Date of judgment: 22 June 2016
The New South Wales Court of Appeal (Basten, Ward and Gleeson JJA) has unanimously allowed an appeal by an insurer which contended that unpaid attendant care services are ‘treatment’ for the purpose of s 58 of the Motor Accidents Compensation Act 1999 (NSW) (‘The Act’), enlivening the power of the Medical Assessment Service to assess disputes in respect of such services.
Ms Sonia Scott (‘the claimant’) was injured in a motor vehicle accident on 15 May 2010. The insurer admitted liability, but disputed the claimant’s entitlement to damages for future gratuitous care and for the loss of capacity to provide unpaid services for her dependent daughter.
The insurer made an application to the Motor Accidents Medical Assessment Service (‘MAS’) to adjudicate what it contended was a ‘medical dispute’ pursuant to section 60 (s 60) of the Act. Specifically the insurer alleged a ‘medical dispute’ arose as to whether attendant services provided voluntarily to Ms Scott were reasonable and necessary, or casually connected to the injuries sustained in the accident.
The Motor Accidents Authority (now known as the State Insurance Regulatory Authority) (‘The Authority’) subsequently referred the dispute to the MAS, from which three certificates were provided. The certificates were unfavourable to the claimant, who subsequently sought judicial review contending that the referral by MAS for assessment amounted to a jurisdictional error and as such the certificates were invalid.
The Act provides that a medical dispute may be referred to the Authority for assessment under Part 3.4 by either party, the court, or by claims assessors. A medical dispute is defined as a disagreement or issue to which Pt 3.4 applies: section 57. Section 58 provides that a disagreement between a claimant and an insurer includes (among other medical assessment matters) whether treatment provided was reasonable and necessary, or causally related to the motor vehicle accident. Accordingly, attention was directed to the statutory definition of ‘treatment’ under the Act, which included ‘attendant care services’, which are defined in section 3 to mean services which aim to provide assistance to people with everyday tasks including (for example) personal assistance, nursing, home maintenance and domestic services.
First Instance Judgment
Ms Scott contended the Authority had fallen into jurisdictional error in referring the matter to MAS, submitting that ‘treatment’ under section 58 of the Act was confined to professional services for which the claimant would or may incur a fee.
Justice Campbell held that gratuitous attendant care services were not ‘treatment’ and as a result the Authority had committed a jurisdictional error by referring the dispute for assessment. His Honour reasoned that while the definition of attendant care services under section 3 was capable of encapsulating paid or unpaid care, section 42 set out an exhaustive list of things which could form the basis of disputes in MAS, and that list was confined to services provided by qualified professionals, for which there was or may be a liability to pay.
His Honour found that unpaid services provided by benevolent but unqualified amateurs (relatives, usually) did not constitute treatment, and could not be the subject of dispute resolution by MAS. His Honour also considered there was no genuine dispute between the parties requiring adjudication.
The insurer appealed on four grounds:
- The primary judge had erred in holding the definition of ‘attendant care services’ under section 3 was distinct from its definition under section 42
- His Honour had further erred in concluding s 58(1)(a) of the Act only applied to professionally provided treatment, and had failed to apply the ordinary and natural meaning (being that services may be provided without being paid for)
- His Honour’s interpretation of ‘attendant care services’ was unreasonable and failed to acknowledge the legislative purpose
- Justice Campbell had erred in finding there was no genuine dispute between the parties concerning section 141B of the Act that allowed for an application for a medical assessment pursuant to section 58 of the Act.
The Court of Appeal agreed the primary judge had erred in confining the meaning of ‘treatment’ in section 58 to treatment provided by professionals, or requiring payment. The definition of ‘attendant care services’ under section 3 was not so confined and if upheld, his Honour’s construction would fail to serve the intended legislative purpose. The Court relied upon the High Court’s decision in Daly v Thiering (2013) 249 CLR 381 as authority for the proposition that attendant care services encapsulated in the definition of ‘treatment and care needs’ under the then s 130A of the Act included gratuitous services. The Court noted that although Thiering related to a different scheme (the Lifetime Care and Support Scheme for people seriously injured in motor vehicle accidents), the general CTP scheme was relevantly indistinguishable. Accordingly, the Court held MAS has jurisdiction to hear disputes as to whether or not attendant care services, however provided, are reasonable and necessary, or causally related to the subject accident.
Justice Gleeson considered a medical assessment dispute under section 58 did not extend to a claim covered by s 15B(2) of the Civil Liability Act 2002 (NSW), being loss of the claimant’s capacity to provide gratuitous domestic services to their dependents. Justice Basten also entertained some reservations about whether MAS could assess s 15B disputes, although did express a concluded view.
In relation to ground 4, the Court found that whether or not there was a dispute was a question of fact to be determined by the Proper Officer of MAS, and not by the Court.
This decision affirms that MAS has jurisdiction to hear and determine disputes regarding unpaid or paid attendant care services claimants assert they require as a result of motor accident, and several which have been on hold pending the appeal will now no doubt be reactivated. The judgement leaves unclear whether MAS can assess disputes about lost capacity of claimants to provide unpaid care to their dependents.
Authored by Sarah Sackville, Graduate at Law, Judith Waldock, Partner, Sydney
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