The ACT Supreme Court has handed down its first decision on the Motor Accident Injuries Act 2019 (ACT) (the MAIA) since its introduction in February 2020. The insurer was successful and Moray & Agnew acted in the proceedings.

The decision is significant as it has clarified the class of claimants that are entitled to bring common law proceedings as a result of a motor accident in the Australian Capital Territory.The effect of the decision is that the class of persons is a limited one. Parties must rely on the Whole Personal Impairment (WPI) assessment provided by an independent medical examiner (IME), and arranged through an authorised IME provider, to determine whether there is an entitlement to common law.

Factual Background

The claimant was involved in a motor accident in July 2020. A compliant claim was lodged and liability for statutory benefits was accepted by the insurer.

The claimant lodged a quality of life benefits application pursuant to Part 2.6 of the MAIA. That application is the primary doorway by which a claimant enlivens common law rights and involves undergoing WPI assessments with IMEs arranged by an authorised IME provider. Relevantly, that IME provider is entirely independent of the insurer.

To obtain common law damages, a claimant must ordinarily obtain a WPI of 10% or more. The issue in these proceedings was whether that WPI determination had to be made by the IME (through the authorised IME provider, as contended by the insurer) or whether a claimant could rely on the WPI assessment of a private medical examiner (PME) who, by chance, was engaged by the same authorised IME provider.

The Quality of Life Benefits Process

1. NRMA referred the claimant for WPI assessments. Those assessments were arranged through MLCOA, an authorised IME provider
2. MLCOA arranged for WPI assessments with two IMEs, who provided WPI reports that assessed WPI at 0% and 5% respectively. Based on the WPI reports provided by MLCOA, NRMA determined that WPI was 5%
3. The claimant elected to obtain other WPI reports in response. Those doctors, one of whom was also engaged through MLCOA, provided second WPI reports that assessed WPI at 14% and 15% respectively
4. The key to the claimant’s case was that the second WPI report had been arranged through MLCOA. That report fitted the definition of being prepared by both a ‘private medical examiner’ and an ‘independent medical examiner’ and, on the claimant’s contention, satisfied all requirements of the legislation to enliven common law
5. NRMA provided the second WPI reports to MLCOA and requested that the IME’s prepare a Notice of Affirmation or Increase. Both IMEs affirmed their WPI assessments of 0% and 5%
6. Based on those affirmations, NRMA contended that the claimant had no entitlement to bring a common law claim as her WPI, as assessed through the quality of life benefits process, did not exceed 10%.

The Arguments and Findings

The parties held opposite views on the proper application of the quality of life benefits process. The claimant argued that her doctor was an independent medical examiner as he was a doctor who, under an arrangement with MLCOA, conducted medical examinations for WPI assessments. Her WPI report satisfied all requirements of the legislation; and accordingly, the claimant was entitled to common law damages.

We opposed that position for NRMA, arguing that properly considered within the context and purpose of Division 2.6 of the MAIA, the second WPI report was not prepared by an IME. The only IMEs under the MAIA were those selected by MLCOA to conduct WPI assessments. Accepting that definition of an IME, the only WPI reports that were relevant to the insurer’s consideration, in this case, were those affirmed by the IMEs; and based on those affirmations, the claimant had not satisfied all requirements of the legislation, and she had no entitlement to common law damages.

McCallum CJ agreed with the insurer’s approach. In coming to that decision, her Honour noted that the MAIA distinguished between a first WPI assessment upon referral to an authorised IME provider and the second WPI assessment that can be arranged by claimants. The findings of the former on WPI were binding on the insurer; the latter were not.

McCallum CJ held that the only role of the second WPI assessment was to afford an opportunity to a claimant to persuade the IME to increase their WPI assessment. The MAIA was not designed for the second WPI report to be determinative of the WPI that would govern the outcome of a quality of life benefits application and, by extension, any common law entitlement. Whether the second WPI report comes from a PME who also happens to be an IME does not elevate the status of the second WPI report within the statutory scheme.

Conclusion

Stewart v Kirk has clarified the limited class of persons who can bring common law claims under the MAIA.

To successfully bring a common law action, claimants will first need to undergo a WPI assessment through an authorised IME provider that assesses a WPI of 10% or more. Where their WPI is less than 10%, the claimant may challenge that IME’s opinion with a second WPI report. However, that report will not be binding on the insurer or enshrine any common law entitlement unless the original IME is persuaded to increase their WPI assessment in a Notice of Affirmation or Increase.

It remains open for claimants to challenge the first WPI reports and final WPI offers. However, the recourse for that challenge is administrative review in the ACT Civil & Administrative Tribunal, and not the institution of Supreme Court proceedings based on the unbinding WPI of a second WPI report.

The judgment is therefore of great assistance to licensed and interstate insurers managing MAIA claims in the Australian Capital Territory. It provides definitive guidance on the proper process to be followed in Quality of Life Benefits applications and will assist in resolving Part 2.6 disputes that arise in the future.

Further information / assistance regarding the issues raised in this article is available from the authors, John Solomon and Chase Deans, Partners, and Izaac Molenkamp, Lawyer, or your usual contact at Moray & Agnew.