Supreme Court New South Wales Medium Neutral Citation: Lewis v Motor Accident Authority of New South Wales & Ors [2012] NSWSC 56 Hearing dates: 28 July 2011 Decision date: 14 February 2012 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed. 2. Plaintiff to pay defendants' costs. Catchwords: MAA assessment - application for review - whether procedural unfairness by assessor of itself a ground to suspect material incorrectness - uncorroborated allegation of assessor's conduct during assessment - whether should be disregarded Legislation Cited: Motor Accidents Compensation Act 1999 Category: Principal judgment Parties: Michelle Anne Lewis (plaintiff) Motor Accidents Authority of NSW (first defendant) The Proper Officer of the Motor Accidents Authority of NSW (second defendant) Insurance Australia Group Ltd trading as NRMA Insurance (third defendant) Representation: M. Leeming SC & J.T. Kearney (plaintiff) M.A. Robinson (third defendant) Michael Karl Evers & Co Solicitors (plaintiff) Crown Solicitors Office (first and second defendants) Sparke Helmore Lawyers (third defendant) File Number(s): 2011/82491 Judgment Introduction 1The plaintiff was injured as the result of a motor vehicle accident on 9 July 2007 and claimed for damages pursuant to the Motor Accidents Compensation Act 1999 . The Act provides for medical assessments to be made by a single medical assessor for various purposes, essentially to determine the extent of injuries caused by the accident. The assessment was necessary in the first instance because the plaintiff and the insurer could not agree as to whether the plaintiff's psychiatric injuries were sufficiently severe to enable a claim for non-economic loss. In other words, whether she suffered a permanent impairment greater than 10% (vide s 131). The medical assessment was undertaken by Dr Norman Rose who certified that the plaintiff's impairment did not exceed 10%. The plaintiff disputed the correctness of a medical assessment and applied under s 63(1) of the Act for a referral of the medical assessment to a review panel. Such a referral is to be arranged "only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application". The proper officer, however, dismissed the application for review as she was "not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect". The question is whether, in arriving at that conclusion, the proper officer erred in law. The application for review 2In summary, the application identified the following matters as giving rise to a reasonable cause to suspect an error - 1. The assessor did not apply the correct test as to whether the psychiatric illness was caused by the motor vehicle accident; 2. The applicant was denied procedural fairness in that the assessor was biased in respect of her claim because of his own parental experience of adoption; 3. The assessor focused upon only one aspect of the applicant's history in forming a view about causation and failed to consider other factors as contributing to the claimant's psychiatric illness; 4. The assessor misstated the history given by the claimant during the examination. 3Attached to the application for review was a statutory declaration by the claimant in which she stated, that on 11 August 2010, she attended a medical assessment by Dr Norman Rose who said to her, early in the examination words to the effect, "I notice you're adopted. I know adopted children come with problems." She said, "I am not aware of any problems". He said, "I know because I have two adopted children myself". The plaintiff says, "at the time, I gained the impression that Dr Rose would not be bringing an independent mind to my case but was measuring it against his own family situation". The plaintiff also deposed that, during the consultation, Dr Rose asked her, "When Dr Gani advised that there would be no ongoing problems from the pancreatitis how did you feel, did you feel relieved?" The plaintiff replied, "I don't know. I don't remember". She said that Dr Rose then raised his voice, and said, "You must remember, you must have been relieved." She then repeated, "I don't remember" and that Dr Rose then said louder again, "You must have felt relieved". The plaintiff said that "the exchange was becoming heated. Dr Rose appeared to be becoming frustrated and angry with me for not remembering. In order to appease him I said, "Oh well Dr Gani is a good doctor and I respect his opinion. Ok then, I must have been relieved"." The conclusions of the proper officer 4The proper officer concluded that, in respect of the causation question, that the assessor applied the correct test and provided detailed reasons for his conclusions. There was nothing which indicated the conclusions were incorrect or based upon an incorrect history. In respect of the denial of the allegation of bias, the proper officer stated - 18. The applicant submits that there is: "... a reasonable inference that he did not in fact bring an independent mind to the Assessment. This is a denial of procedural fairness." 19. The applicant relies upon the statements of the Assessor in his reasons regarding the claimant being adopted and a statutory declaration from the claimant regarding statements made to the claimant during the Assessment. However, since only the claimant and the Assessor were in attendance, the veracity of this submission cannot be confirmed. 20. In relation to the above assertion, I refer to sections 61(4) and 63(3) of the Act. Consideration as to whether there has been a denial of procedural fairness to a party in connection with the issue of a certificate by a medical assessor is a matter for a court, and not a matter to be determined here. In considering whether this matter should be referred to a review panel of medical assessors, I must be satisfied that there is reasonable cause to suspect that the assessment was incorrect in a material respect. " 5In respect of the failure to take account of the factors specified in the application as part of the history the proper officer concluded, in substance, that the assessor had made sufficient reference to all the relevant factors and his failure to specifically deal with the effect of each particular factor did not indicate any error in the assessment. He noted, in effect, that the assessor is not required to deal in detail with every possible cause of the psychological injury suffered by the claimant. The effect of procedural unfairness by the assessor 6It is submitted by Mr Leeming SC for the plaintiff that, although it is true that s 61(4) of the Act permits a court to reject a certificate as to the matters certified in it on the ground of denial of procedural fairness (if admission of the certificate would cause substantial injustice), this does not exclude such a factor from giving rise to the reasonable suspicion that "the medical assessment was incorrect in a material respect" within the meaning of s 63(3) of the Act. Furthermore, the proper officer appears to have refused to consider the significance of the plaintiff's claim, in substance, because it could not be corroborated. Mr Leeming pointed to the absence, at all events, of any contradictory evidence but submitted that the mere fact that - should it be the case - contradictory accounts about the matter were given it would give rise to a reasonable suspicion within the meaning of the subsection, unless there were good reasons for discounting altogether the plaintiff's allegation. On behalf of the insurer it is, in substance, submitted that the allegation of procedural unfairness merely gave rise to a right to quash the decision, which was no part of the function of the proper officer's review. 7In my view, a mere denial of natural justice, whether it be by way of bias or a refusal to enable the plaintiff a reasonable opportunity to be heard in respect of her medical condition will not of itself make "the medical assessment... incorrect in a material respect". To my mind the incorrectness in question is confined to the medical findings and expression of opinion by the assessor. The possibility of a review is not concerned with the process by which these conclusions were reached unless the process (whatever its procedural characterisation) gave rise to a reasonable suspicion or reasonable cause to suspect that the conclusion or findings were incorrect in a material respect. Of course, an assessor must be fair and it would often be but a short step from a determination that an examination was unfair to a reasonable suspicion that there was a material error in a finding or assessment so that the proper officer would be obliged under s 63(3) to arrange for a referral to the review panel. Much would depend on the character of the alleged unfairness. However, it is the potential for material error that unfairness might cause which is the crucial issue, not the unfairness per se . 8Accordingly, the assessor was correct to decide that the claim of procedural unfairness was not a matter for him to determine. It may be that he should have gone on to consider the possible significance of the alleged unfairness on the assessor's conclusions. However, the matter was not put to him in that light. Here, it appears to be bias against attributing to the accident a significant contribution to the applicant's depression because of an opinion about the possible contribution of the fact that she had been adopted. A fair reading of the assessor's report demonstrates that there could be no reasonable suspicion that he undertook any such line of reasoning or was influenced in any way by an opinion about the effects of adoption, even if he in fact had the view attributed to him. The observation was a commonplace and, although it is possible that the assessor, for one reason or another, was sensitive to the possible psychological significance of adoption, this could not by any means reasonably give rise to a suspicion that it affected his findings or professional opinion. The mere fact that the plaintiff was concerned about it is immaterial. Accordingly, I would reject this ground of the application upon the basis that, even if there were an error of law (which I doubt), it was immaterial. Incorrect history taking 9That the plaintiff developed acute pancreatitis following from and likely caused by the accident is not disputed. The question is whether she was told that this condition would recur and whether it was her reaction to that information which gave rise to or contributed to her depressive illness. The acute pancreatitis had settled and she was much better after two to three days but the plaintiff claimed that whilst she was in hospital a doctor told her that afterwards she might be susceptible to developing diabetes and pancreatic disease with a potential for further episodes of pain and claims then that she was upset by "the unknown" and again to worry about what happened. Dr Gani, who had previously operated on her for bladder disease, according to the history taken by Dr Rose "reassured her" and that "this made her worry less about the future". Dr Rose said that the plaintiff told him that she trusted Dr Gani because of his previous treatment of her for gallbladder disease. 10So far as incorrect history taking is concerned the proper officer stated - 25. The applicant submits: "At page 8, the Assessor records the history as "furthermore, Ms Lewis does readily admit that Dr Gani was able to reassure her that she would not have serious complications of her acute pancreatitis. On the other hand, the history as recounted by the Claimant in the attached Statutory Declaration is quite different and suggests the claimant did not "readily admit" any such thing." 26. The specific details provided to the medical assessor by the claimant are known only to them. I cannot verify exactly what the medical assessor was told or what the claimant told the medical assessor. However, if the medical assessor has incorrectly recorded the details referred to above, these cannot be regarded as material errors. 27. The Statutory Declaration of the claimant also indicates the claimant in under the belief that this was further proof of the Assessor not approaching the matter with an open mind. This would again fall under the category of bias and denial of procedural fairness and as I have outlined above, is an issue best determined by the Court." 11It seems clear that the plaintiff accepted that Dr Gani told her that she would not have serious complications of her pancreatitis. She merely said that she could not recall her response. The assessor's summary of the plaintiff's extensive history showed that, although he gave some significance to Dr Gani's reassurance, his conclusion by no means depended on this factor. 12The history summarised by Dr Rose in his assessment noted that the plaintiff presented with epigastric pain following the motor vehicle accident one day earlier. She was diagnosed with pancreatitis and was submitted for pain relief. It was said that the abdominal pain settled and she was discharged home for follow up. There was no mention of any potential for further abdominal pains. Dr Ang, her treating psychiatrist, said that as a result of the accident the plaintiff developed soft tissue injuries to the neck and back and "traumatic pancreatitis, slowly becoming depressed after her admission into hospital so that, by October 2007, she was very morose in her thoughts after developing anxiety symptoms." Dr Ang diagnosed a first episode of major depression, which resulted from the motor vehicle accident, but was optimistic about the plaintiff making a full recovery. Dr White, the plaintiff's former treating psychiatrist, thought that the plaintiff was suffering from a unipolar major depression which he described as a constitutional mental illness requiring long term treatment. (Dr Rose thought this diagnosis was questionable.) Associate Professor Caplin expressed the view that, although the plaintiff might have developed major depression as a result of the accident, for all practical purposes the effects of that accident on her mood had resolved with no impairment, although there was a possibility she might have been having occasional hypermanic swings. Dr Vickery found no evidence of major depression and thought the plaintiff had suffered a panic attack. Dr McClure thought that the accident was a plausible cause, amongst others, of the plaintiff's major depressive episode but thought she had achieved at least a substantial partial remission as at the time of assessment on 15 June 2009. Dr Truscott, who had assessed the plaintiff some five months earlier thought that she did have some soft tissue injuries and had experienced traumatic pancreatitis but, in view of the lack of anatomical injury to the pancreas, conceded it most unlikely that there would be any long term sequelae to the pancreatic injury. Dr Lee, a psychiatrist, attributed the plaintiff's depressive disorder exclusively to the accident and to the development of pancreatitis and thought she was suffering from a recurrent major depression though she was unable to say how or why its recurrent nature arose from the motor accident. Dr Skinner also provided a psychiatric report in which she mentioned psychiatric problems significantly predating the motor vehicle accident and diagnosed major depression in partial remission but found it difficult to apportion the degree of disability arising from the motor accident. 13Dr Rose concluded that the plaintiff indeed suffered from a recurrent major depression with a possibility that in time she would have a hypermanic or manic episode and that the diagnosis would be that of bipolar disorder. Dr Rose discussed the possibility of a genetic factor but (for reasons that do not matter) was not able to regard this as more than speculative. He concluded - "Nevertheless, it is most unusual for somebody to develop such a severe recurrent depression after being told they might have further medical problems following an attack of acute pancreatitis. In my opinion, being told that there might be negative medical consequences arising out of the traumatic pancreatitis could not be seen as a reasonable cause of the worker's [sic] recurrent depression. The very recurrent nature of the depression also goes against attributing her depression to the subject motor accident and the subsequent traumatic pancreatitis. Given that she was depressed for a while immediately after the development of acute pancreatitis, it might have been reasonable to suppose that she could have developed a brief depressive illness thereafter. In fact, there is ample evidence that her depression did improve after treatment from Dr White. [Emphasis added.] The subsequent deterioration in her condition cannot be attributed to the subject accident or the traumatic pancreatitis. I am therefore inclined to believe that there is no current psychiatric illness which is attributable to the subject motor accident." 14I have already pointed out that the plaintiff, in the statutory declaration submitted with the application for review, claimed that she did not, at least at first, tell Dr Rose that she felt relieved following Dr Gani's advice that there would be no ongoing problems. She claimed that she conceded that she must have been relieved as a result of Dr Rose's apparent frustration and anger with her from not recalling this being so. In substance, she said that she did not know whether she was relieved or not following Dr Gani's advice and that her concession was made because of pressure. 15Of course, the plaintiff's perception of Dr Rose's manner may well have been mistaken. It is easy enough to accept that the doctor might have expressed a degree of scepticism about the claimant's denial of recollecting her feelings one way or another following Dr Gani's advice, when it was her asserted fear of recurrent pancreatitis which, it appeared, had beset her. Much depended on the way in which the dialogue proceeded and it might be that the doctor's description of a ready acknowledgment of relief following Dr Gani's advice was a somewhat mistaken impression. However, these are matters of nuance. If, in fact, the plaintiff had denied being relieved and the assessor had based his opinion to any significant extent on the mistaken view that she was so relieved, then that may have provided reasonable cause to suspect that the assessment was incorrect in a material respect, namely whether the plaintiff's attribution of her unhappiness to her fears of future pancreatitis was correct. 16The proper officer considered the issue upon the assumption that the history recounted by the claimant was correct and dismissed the mere incorrect recording of what she told the doctor as immaterial. This, as far as it goes, must be correct or at least have been open to him. He did not go on to consider whether the assessor proceeded on the basis of a mistaken understanding of the plaintiff's position but he was not requested to do so. Moreover, in the circumstances, the appropriate conclusion was that, even if the assessor had mistakenly thought the plaintiff had said she felt relieved after being reassured by Dr Gani as distinct from not remembering what her response was, this matter did not rise to the significance of providing reasonable cause to suspect a material error. There was a great deal of other material to which the assessor referred that supported his view that her concern about the consequences of an acute attack of pancreatitis did not materially contribute to her depression. I am unable to see how a mistake by the assessor of the kind actually claimed gives rise to any breach of procedural fairness. Even if the proper officer was somewhat confused about the materiality of the complaint - a confusion which was not clarified by the plaintiff's application for review - this was an error of fact, not law. The dismissal by the proper officer of the materiality of the plaintiff's belief as to the assessor's prejudgment or bias was plainly correct. Objectively, the matter complained of did not suggest any such attitude of the assessor. Accordingly, the complaint about this matter should be dismissed. Uncorroborated allegations 17Because of its possible significance in other cases I should deal I think with the "word against word" argument. Of course, such an argument is not limited to claims about any denial of natural justice or of procedural fairness. It is not at all impossible that a claimant may wish to contradict an assessor's report either as to history or examination or even conclusion based upon a statement of what occurred during the assessment. The mere fact that such a statement might not be able to be corroborated cannot be a reason for dismissing it as possibly giving rise to a suspicion that the assessment was incorrect. Each case must be considered upon its own merits. There can be no automatic dismissal of a contradiction simply because there is no corroboration for it. The proper officer commented that the only basis for the alleged errors on behalf of the assessor was the assertions of the plaintiff and I would accept that he apparently considered that it followed he should disregard them. However, he did not actually rest his conclusion on this point but, rather, on the consideration that a mere assertion of procedural unfairness did not amount to a reasonable suspicion of material incorrectness. For the reasons I have explained above, this is correct as far as it goes. Accordingly, I would dismiss this ground of the application. The test of causation 18The plaintiff submits that the assessor's statement of the test of causation was in error. Firstly, Mr Leeming points to the description of the plaintiff as a "worker" in the assessor's conclusion (the full passage is set out above), and submits that the assessor may have applied the test for causation applicable to a workers compensation case, namely whether the motor vehicle accident was a "substantial contributing factor" to her injury. He also points to the reference to the assessor's statement that he was "inclined to believe", in effect, that the plaintiff's current condition was not attributable to the accident, submitting that "inclination" is not the correct test. The proper officer said that the reference to inclination did not indicate the assessor's application of a wrong test of causation but, rather, outlined his conclusion. What this means is not altogether clear but I agree that went to the standard of proof rather than the nature of the test. An inclination is not, on its face, the appropriate test, though it may mean the same as "it is probable" which is not incorrect. However, I think that the doctor simply used an inapt vernacular term. The immediately preceding sentence does not imply any doubt about the conclusion and the two are plainly intended as having the same import. This is confirmed by considering the report as a whole. 19The proper officer's discussion of the issue of causation was as follows - "14. The Assessor is not required to outline the test of causation in his decisions. It is evident the Assessor doesn't believe the accident would give rise to the type of recurrent depressive illness the claimant suffers. The Assessor refers to the report of the former treating psychiatrist Dr White, who outlines "an accident at work" (p.9) and the stressors associated with the psychological illness suffered by family members. He notes the treatment received and that she made a good recovery, was euthymic and " by then she was free of depression " (my emphasis). On pages 9 -10 he notes Dr White diagnosed a unipolar major depression which he described as a ' constitutional mental illness which would require long term treatment ' and the Assessor adds that the presence of diurnal variation of depression, with depression being worse in the mornings 'is characteristic of a biologically determined major depression ' (my emphasis)." He added - "16. In reading the reasoning of the Assessor I don't believe that the Assessor referring to the claimant as the "worker" at one point within the decision implies an incorrect test, being that applicable to workers' compensation cases, has been applied. He has at no point indicated he felt the injury was a contributing factor for the current illness and he makes no reference to the injury not being a "substantial contributing factor". Had he used this term in his reasons I would have been more than inclined to suspect an incorrect test had been applied but there is nothing in his reasons which would indicate that this was the case. He concludes "it might be reasonable to suppose that she could have developed a brief depressive illness... (but) in fact, there is ample evidence that her depression did improve after treatment with Dr White. The subsequent deterioration... cannot be attributed to the subject accident or the traumatic pancreatitis" (p.12). 17. The Assessor has provided detailed reasons for his conclusions and the applicant has not provided evidence to indicate that these conclusions are incorrect or based upon an incorrect history. The fact that the applicant disagrees with the Assessor's findings does not indicate that the assessment is incorrect." 20The Motor Accident Act Guidelines essentially proposes the "material contribution" test which is not, to my mind, significantly different from the "substantial contributing factor" test, "substantial" and "material" meaning virtually the same, though I confess that arguments about causation seem to invite distinctions of which even the scholastics of the early Middle Ages would be envious. At all events, I think that the assessor was well aware that this was not a workers compensation case, and the reference to "worker" was a mere inconsequential slip. As it happened, the assessor did not actually specify the test of causation that he applied. His report makes it clear, however, that there were a number of possible factors that may have given rise to the plaintiff's condition and he certainly did not apply a test that required the accident to be the sole or even major contributing factor. The proper officer appears to have thought that a "substantial" contribution test would have been a material error but, as I understand her statement of reasons, she held that since the assessor did not think that the accident contributed at all to the plaintiff's continuing illness, the question of the extent of contribution, was irrelevant. It seems to me that the proper officer's view of the assessor's report is correct and thus, even assuming that interpreting the report is a question of law, no error is established. 21The plaintiff submits that the use of the word "indicate" in the paragraph last quoted above demonstrates that the proper officer applied a test other than satisfaction that there is reasonable cause to suspect that the assessment is materially incorrect. The proper officer correctly stated the test at the outset of her statement of reasons. In my view, the sentence in question should be read as concluding that there was nothing to indicate that the test was satisfied. This is not demonstrative of error. Conclusion 22I am not satisfied that the proper officer erred in law in determining whether there was reasonable cause to suspect that the assessment was incorrect in a material respect. Accordingly, the summons is dismissed with costs. ********** Amendments 17 February 2012 - replace the word "fairness" with "unfairness" Amended paragraphs: Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2012