Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Gonzalez [2013] NSWSC 362 Hearing dates: 5 December 2012 Decision date: 18 April 2013 Jurisdiction: Common Law Before: Adams J Decision: (1) Declare that the injuries which were the subject of the Certificate of Dr Lim are not within the operation of the Motor Accidents Compensation Act 1999. (2) The Certificate (including Reasons) of Dr Lim issued on 21 November 2011 is quashed as beyond jurisdiction and void. (3) The decision of the Fourth Defendant dated 12 March 2012 refusing the application for review by a Medical Review Panel is quashed as beyond jurisdiction and void. (4) The matter is remitted to the Second Defendant to be determined according to law. (5) The First Defendant is to pay the Plaintiff's costs of and incidental to this Summons. Catchwords: ADMINISTRATIVE LAW - Review of decisions of Proper Officer and Medical Assessor. CAUSATION - claimant intimidated by other driver - consequent psychiatric injuries not caused directly by accident - utility of "but for" test - application of s 3A - Motor Accidents Compensation Act 1999 Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 Nominal Defendant v Hawkins [2011] NSWCA 93 Ross v Transport Accident Commission [2000] VSC 112 Mani v Nominal Defendant [2002] QSC 152 Coley v Nominal Defendant [2003] QCA 181 Category: Principal judgment Parties: Allianz Australia Insurance Ltd (plaintiff) Carmen Gonzalez (first defendant) Motor Accidents Authority of New South Wales (second defendant) Janet Ashpole, Proper Officer of the second defendant (third defendant) Dr Leslie Lim, Medical Assessor on behalf of the second defendant (fourth defendant) Representation: Counsel: K P Rewell SC (plaintiff) P S Jones (defendant) Solicitors: McCourts Solicitors (plaintiff) Colin Daley Quinn (first defendant) I V Knight, Crown Solicitor (second, third and fourth defendants) File Number(s): 2012/172585 Judgment Introduction 1Ms Carmen Gonzalez sustained some minor physical injuries from a motor vehicle accident on 23 September 2008 at Warwick Farm Railway station. She also claimed, as arising from the accident, to have sustained psychological injury that resulted from the conduct of Mr Phuc Cuong Dang, the other driver and his friends immediately following the accident and on the next day. Mr Dang's insurer, Allianz Australia Insurance Ltd, accepted liability in respect of the physical injuries but denied that any psychological injury was suffered from the accident itself. Rather, Allianz contended, that any such psychological harm was caused by separate events, thereby breaking the chain of causation and thus falling outside the scope of the Motor Accidents Compensation Act 1999. 2The issue of the cause of the psychological injuries was referred to the Medical Assessment Service. The claim was first assessed by Dr Lim, who found that Ms Gonzalez suffered psychological injuries which were caused by the accident. Allianz disputed Dr Lim's findings and the matter was referred to the Proper Officer in accordance with s 63 of the Motor Accidents Compensation Act. The Proper Officer upheld the assessment of the Doctor. Allianz now appeals the review to this Court. The legislation 3The Motor Accidents Compensation Act provides - 3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control. 4In relation to the question of causation, the Motor Accidents Authority, pursuant to its power under s 44 of the Motor Accidents Compensation Act, has issued the MAA Medical Guidelines. Clause 1.9 of the Guidelines sets out the test of causation - There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes. Facts 5The report of 21 November 2011 by Dr Lim, made at the behest of the Medical Assessment Service, usefully sets out what happened at the time of the accident - The claimant reported that on 23 September 2008 she was sitting in her car [a Nissan] in the car park at the Warwick Farm railway station waiting for her son who was returning home by train. This was about 8 to 8.30 in the evening. She reported that another car reversed into her car [a Honda]. She noticed that the man who was driving was having a quarrel with a woman sitting in the front passenger seat at the time. The claimant reported that the woman ran off when the accident happened. She reported that "all the back of my car" was damaged. The claimant reported that as soon as she had the collision she went into "shock". She felt pain in her knees and neck. She was worried that she might have aggravated her back injury [having undergone a L5/S1 discectomy on 13 October 2006]. She telephoned for an ambulance. When the ambulance arrived, she was examined by the ambulance officers and was told by them that she did not need to go into hospital. The claimant reported that when the accident occurred, the driver made some telephone calls and she was soon surrounded by 5 men. She said they were all Asians. She said that they crowded around her and pressured her to say that another man was driving as the actual driver was a P-plater and may lose his licence because of the accident. She said, "They put me in a circle. One of them was getting agitated. He started going to his car, opening the boot. It was dark. I was by myself. One of them was playing with his keys and constantly doing that (waving her hand back and forth to demonstrate the movements) and telling me to say to the police the owner (another man) of the car was the one who was driving." The claimant reported that, by the way the men were crowding around her, with one of them swinging his keys and opening the door of his boot and kept turning to it, she became fearful they were "going to do something" to her. She said that it felt like she was being crowded and menaced for a long time. She said that the men were very aggressive and even swore at her. The son arrived at about the same time the ambulance arrived. When she was being examined by the ambulance officers in the ambulance, she could not see her son and began to worry for the safety of her son. She said that she had difficulty telling the ambulance officers how she felt as she was in a shock. The claimant's husband eventually arrived and took her home. The following day, the driver went to Ms Gonzalez's home to inspect the damage that was sustained to her vehicle. Diagnosis of psychological injury 6Ms Gonzalez attended her local General Practitioner, Dr Nguyen, the next day with pain in her right shoulder, her neck and her left leg and was referred to Mr Herrera, a psychologist. 7Dr Lim assessed only Ms Gonzalez's psychological condition. Under the heading of "Diagnosis and Causation", Dr Lim stated (emphasis original) - This assessment has found the claimant to be suffering a Posttraumatic Stress Disorder (DSM-IV 309.81) and a co-morbid Major Depressive Disorder, Single Episode, Chronic (DSM-IV 296.2) from the subject motor accident. Although the accident was a low-speed accident, the psychiatric damage was done by the behaviours of the driver and his friends. Through their behaviours at the accident and the day after the claimant felt fearful for her life. The fear and psychiatric manifestations are repeatedly experienced by the claimant in flashbacks, behavioural changes (checking for cars and being followed) and when talking about the accident (as in giving her history in the current assessment). The detachment from family members and friends, fear of driving are additional symptoms supporting this diagnosis. The claimant's depression since the subject accident is documented by Dr Nguyen, Mr Herrara and Dr Dowla. In the current assessment, the claimant described depressed mood, loss of interest, loss of motivation and poor concentration. The claimant's clinical presentation at this assessment is one of depression, confirming her description of being depressed. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident: Posttraumatic Stress Disorder (DSM-IV 309.81) Major Depressive Disorder, Single Episode, Chronic (DSM-IV 296.2) 8It was this diagnosis and finding as to causation that was the subject of review by the Proper Officer. 9The Proper Officer (Ms Ashpole) reviewed the report of Dr Lim on 12 March 2012. The grounds of the review were that Dr Lim erred in finding that the psychological injuries of Ms Gonzalez were causally related to the accident as they resulted from the subsequent actions of the driver and his friends; these were separate from the accident itself and therefore outside the scope of the Act. It was submitted for Ms Gonzalez, on the other hand, that the actions of the driver and the other people were concurrent and interdependent causes of the claimant's injury. 10Ms Ashpole set out the test for causation under clauses 1.8 and 1.9 of the MAA Guidelines. In her review, the Proper Officer stated - In making his assessment Assessor Lim has clearly stated and provided reasons that the psychiatric damage was done by the behaviours of the driver and his friends. Had it not been for the accident, those behaviours would not have occurred and the injury would not have resulted to the extent it has. I am therefore satisfied that the actual accident and the actions of those called as a response to the accident does not constitute a break in the chain of causation. 11The officer then went on to find that Dr Lim did not err in his medical assessment and that the claimant's current impairment was caused by the accident and dismissed the appeal. Allianz's Submissions 12Mr Rewell SC for the plaintiff submitted that the decisions of Dr Lim and the Proper Officer as to the causation of Ms Gonzalez's psychological condition were incorrect. Dr Lim had not specified the test he applied, whilst Ms Ashpole's application of the Guidelines did not reflect the limitations of the "but for" test to which they referred. It was submitted that this amounted to jurisdictional error. 13The phone calls and ensuing conduct by Mr Dang and his friends constituted a novus actus interveniens, breaking the chain of causation between the collision and Ms Gonzalez sustaining her psychiatric injuries. These conditions were not caused by the fault of Mr Dang in the "use or operation" of his vehicle; nor were they the "result of and ...caused ...during ... the driving of the vehicle" or the other events specified in paras (b), (c) or (d) of s 3A(1). In short, the events listed in sub-sec 3A(1) were over at the time Ms Gonzalez was assailed, both at the scene and later at her home. It followed that those injuries were not compensable. This contention was put in a number of other ways to which it is unnecessary to advert. 14As to the submission made on Ms Gonzalez's behalf that she went into "shock" as a result of the accident, it was argued that the Doctor did not attribute any part of Ms Gonzalez's psychological injuries to the "shock" he mentioned in the history he took from her. Ms Gonzalez's submissions 15It was contended by Mr Jones of counsel that Ms Gonzalez suffered immediate mental injury upon the impact occurring and that this was exacerbated by the conduct of the driver and his friends immediately after the impact. This, it was submitted, was so intricately connected to the collision that it fell within the operation of s 3A(1)(b) or (d) of the Act. There was a temporal nexus between the collision itself and the arrival of the five men, as it was the driver that phoned his friends to attend the scene in response to the fact that the driver holds a provisional licence and he may lose his licence as a result of the collision. Thus the accident itself brought about Ms Gonzalez's psychiatric injuries. Moreover, she herself refers to feeling "shock" at the time of the collision and the conduct of the driver and his friends exacerbated this psychological injury that was sustained when the accident occurred. It was submitted that there was a susceptibility to a psychiatric reaction given Ms Gonzalez's history, a susceptibility to concerns about her back, given that she had recently had surgery on her back, and the fact that one of the people from the other car had run off and made a phone call, all of which manifested the psychological injury which she then suffered and was made worse as events developed at the scene and on the following day. 16Mr Jones submitted that the brief lapse of time between the collision and the arrival of the driver's friends and their subsequent behaviour showed that what happened was, in reality, a single event and there was no novus actus interveniens. Further, "but for" the collision occurring, Mr Dang and his friends would not have tried to have intimidate Ms Gonzalez, and her mental injuries would not have arisen. He also relied on Dr Lim's determination of the cause of Ms Gonzalez's psychiatric injuries as being the accident as, indeed, had Mr Herrara. These opinions were accorded with paragraphs 1.8 and 1.9 of the Motor Accidents Authority Permanent Impairment Guidelines. 17In the alternative, it was submitted that, if the psychiatric harm was caused to Ms Gonzalez as a result of the conduct of the driver and his friends, this resulted from the "dangerous situation" brought about by the accident within para 3A(1)(d). Discussion 18A necessary starting point is Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568, in which the High Court held that the relevant "injury" for the purposes of the Motor Accidents Compensation Act was, that which had, as its immediate or proximate cause, the specified use of the motor vehicle. McHugh J said - [53] The above examination of the subject, scope and purpose of the Act suggests three matters that are relevant in the construction of Pt 6 of the Act. First, the Act does not provide a universal compensation scheme for all injuries sustained in connection with a motor vehicle. Secondly, cost-saving and the need to keep the scheme affordable are significant objects of the Act. Thirdly, the Act has tightened the definition of injury by reference to its cause. These three matters indicate that, in the inquiry into the question of causality, an approach that limits the scope of the Act is preferable to one that would extend its application. This in turn suggests that a close causal connection is required for the injury to satisfy the requirement the injury be "caused ... by a defect in the vehicle". 19Gummow, Hayne and Heydon JJ said (omitting references) - [102] The use in the definition of the emphatic and intensive phrase "if, and only if" directs attention to notions of predominance and immediacy rather than to more removed circumstances. The definition of "injury" looks, for the CTP insurance system, to notions of proximate cause found in insurance law ... That construction is consistent with the subject, scope and purpose of the 1995 Act. Callinan J said (omitting references) - [131] It is significant that after the words "is a result of" no expression such as "or is contributed to by" is used. The indefinite article "a" does not imply in my opinion that one of multiple causes may suffice, even if "cause" and "result" were taken as synonyms in the definition. Each of the separate expressions "is a result of" and "is caused during" has to be given its full and presumably different meaning. They have a cumulative reinforcing effect. Each has its own separate and important work to do. The words "if, and only if," refer both to result and the event or, to put it another way, what is happening in relation to the vehicle when the injury is caused. It follows that subpara (iv) of the definition should be read in this way: "'injury': (a) means personal ... injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is caused during such use or operation of the vehicle of the kind referred, or by a defect in it". "Such" is the key word. It means "[o]f the character, degree, or extent described, referred to, or implied in what has been said". Furthermore, the expression "use or operation" as used in the introductory words of the definition have separate and sufficient work to do. That work is to identify the event in the course of which there is fault, the "fault" earlier referred to. The use or operation of the vehicle earlier described and referred to in subpara (iv) is the use or operation of the vehicle in the manner most recently and proximately referred to in the definition, that is, in motion, as set out in subparas (i), (ii) and (iii). 20Applying this approach in the present case would, as I think, lead to the rejection of the case advanced by Ms Gonzalez. 21The question is not so much whether the conduct of Mr Dang and his friends, outrageous and disgraceful as it was, caused Ms Gonzalez's psychiatric injuries, but whether they were caused in the use or operation of the vehicle and, temporally, during the events specified in paras (a), (b), (c) and (d). As to the last of these, the driving of the vehicle did not, as it seems to me, cause the "dangerous situation". Rather, that was caused by the decision of the driver to collect his friends and intimidate Ms Gonzalez. The "but for" test in this context does not identify more than a necessary as distinct from a sufficient link in the causal chain. In March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 Mason CJ pointed out (at 517) that, for its usefulness, "the 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act". See also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 and Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182. 22The character of the necessary link between faulty driving and the injury was considered in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529. The plaintiff was injured whilst working in a warehouse occupied by the respondent. He and others removed boxes from a container and put them onto a pallet which was taken by a forklift up a ramp. As it did so, it caused the ramp, the landing and the container to vibrate. This vibration caused boxes stacked in the container to fall and strike the plaintiff as he stood about a metre inside the container. That the plaintiff's injury was caused by the forklift was undisputed but was it "caused by the fault of the owner or driver in the use and operation" of the forklift, within the definition of "injury" in s 3(1) of the Motor Accidents Compensation Act? It was contended that the fault was the system of work and not that of the driver. A plurality of the High Court held - It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded. The necessary link, therefore, between the fault and the driving was not established, even though it was vibration caused by the forklift that caused the collapse of the boxes onto the plaintiff. So, it is contended for Allianz, there was faulty driving here but the psychological injuries to Ms Gonzalez were not caused by that driving, that is to say, by "the use or operation of the vehicle", on the assumption of course that those injuries were not attributable to the "shock" which she mentioned to the Doctor. 23The nature of the link was again explored in Nominal Defendant v Hawkins [2011] NSWCA 93. The plaintiff was cycling along the Pacific Highway followed by a vehicle, with its horn beeping and the occupants yelling. The vehicle was driven close alongside at a speed that was adjusted to approximate the cyclist's and, immediately after he was struck by an object thrown from it that caused him to lose control, accelerated away, moving out of the kerbside lane. The trial judge's conclusion that the vehicle was intentionally driven in that way in order to permit or facilitate something being thrown at the cyclist was upheld on appeal. The appellant contended, however, that the "immediate or proximate" cause of the "injury", as required by the Motor Accidents Compensation Act was the throwing of the object by a passenger and not any driving. Hodgson JA (with whom the other members of the Court agreed) said - [33] ... I do not understand their Honours in ... [Allianz] to be altogether ruling out the possibility that there may be more than one cause which is sufficiently predominant or immediate or proximate to satisfy the requirements of causation in the definition of "injury" in the MAC Act. However, clearly in my opinion they are saying that the fault in the use or operation of the vehicle, and the driving of the vehicle (in those cases where par (a) of the definition of "injury" is in question), must have a very substantial causative role; and that in the former case its character as fault must be related to the actual use and operation of the vehicle as such, rather than merely as fault (with the aid of the motor vehicle) in facilitating a dangerous or criminal act by a passenger unconnected with the actual driving or operation of the vehicle. His Honour concluded - [44] In the words of the definition, there was fault in the use or operation of the vehicle, which was not merely a fault in putting the thrower of the object in a position to ... [throw the object at the plaintiff]: there was fault in the manner of driving so as to harass the plaintiff, and the throwing of the object was part of and incidental to this harassing driving. In those circumstances, I think it can be said that ... [the plaintiff's] injury was caused by the driver's fault in the use or operation of the vehicle, and was a result of the driving of the vehicle, within the definition of "injury" in the MAC Act. 24Although it is necessary to be cautious about reasoning from factual examples, it seems to me that the test applied by Hodgson JA is, if I may respectfully say so, useful. The closeness of the link between the incident and the driving is very much a question of fact and degree but it must be "very substantial" in order to satisfy the requirements of predominance, immediacy and proximity. Thus, if a driver merely holds the vehicle steady so that a gun can accurately be fired by a passenger at a nearby house, that will not suffice: ibid at [30] - [31]; see also Ross v Transport Accident Commission [2000] VSC 112; Mani v Nominal Defendant [2002] QSC 152 and Coley v Nominal Defendant [2003] QCA 181. 25As I have already mentioned, Mr Jones of counsel for Ms Gonzalez sought, as it were, to bridge the gap between the driving and the wrongful conduct of Mr Dang and his friends by contending that the references in the medical reports (that of Dr Lim in particular) to Ms Gonzalez "shock" at the time of the collision itself should be taken as the commencement of the chain of causation of Ms Gonzalez's psychiatric injuries, to which the subsequent intimidation was an additional and not separate strand. In my view, when the reports are read as a whole it is not possible to accept this interpretation of the Doctor's opinion about the cause of Ms Gonzalez's psychiatric injuries. Conclusion 26It is unnecessary for me to deal with the other ways in which the respective cases were put by the parties. It seems to me that the conclusion is inevitable that Ms Gonzalez's psychiatric injuries do not satisfy the requirements of the Motor Accidents Compensation Act. Accordingly, I make the following orders - (1)Declare that the injuries which were the subject of the Certificate of Dr Lim are not within the operation of the Motor Accidents Compensation Act 1999. (2)The Certificate (including Reasons) of Dr Lim issued on 21 November 2011 is quashed as beyond jurisdiction and void. (3)The decision of the Fourth Defendant dated 12 March 2012 refusing the application for review by a Medical Review Panel is quashed as beyond jurisdiction and void. (4)The matter is remitted to the Second Defendant to be determined according to law. (5)The First Defendant is to pay the Plaintiff's costs of and incidental to this Summons. ********** 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: 11 November 2013