Supreme Court New South Wales Medium Neutral Citation: QBE Insurance (Australia) Limited v Thomson [2015] NSWSC 650 Hearing dates: 22 May 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Jurisdiction: Common Law - Administrative Law Before: R S Hulme AJ Decision: 1. An order in the nature of certiorari setting aside the decision of the Second Defendant in her capacity as a Claims Assessor of the Motor Accidents Authority of New South Wales dated 27 October 2014 in CARS matter number 2013/12/2238. 2. An order in the nature of prohibition preventing the Defendants or any of them by their officers, servants or agents from acting on or taking any further step in reliance on the said decision. 3. An order in the nature of mandamus remitting the matter to the Third Defendant for determination of the application by a different Claims Assessor and according to law. 4. An order that the First Defendant pay the Plaintiff's costs of the proceedings. 5. An order that exhibits be returned. Catchwords: ADMINISTRATIVE LAW – Motor accidents compensation act 1999 – judicial review of claims assessor – failure to provide reasons – failure to take into account relevant considerations Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Craig v State of New South Wales (1995) 184 CLR 163 Kurt v R, Joshua v R [2014] NSWCCA 318 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for immigration and Citizenship v SZMDS (2010) 240 CLR 611 Tweedie v R [2015] NSWCCA 71 Category: Principal judgment Parties: QBE Insurance (Australia) Limited (Plaintiff) Janine Lee Thomson (First Defendant) Elyse White in her capacity as a Claims Assessor of the Motor Accidents Authority of NSW (Second Defendant) Motor Accidents Authority of NSW (Third Defendant) Representation: Counsel: Mark A Robinson SC (Plaintiff) Ian Cullen S W Gibb SC (First Defendant) A L McSpedden Solicitors: Moray & Agnew (Plaintiff) Napier Keen (First Defendant) Crown Solicitor for NSW (Second & Third Defendants) File Number(s): 2015/5772 Judgment 1. By summons filed on 7 January 2015 QBE Insurance (Australia) Limited seeks by way of judicial review to challenge a decision of Ms Elyse White in her capacity as a Claims Assessor of the Motor Accident Authority made on 27 October 2014. 2. The assessment resulted in a certificate dated 21 November 2014 recording that the First Defendant in these proceedings, Janine Thomson, was entitled to an amount of damages in a sum of $973,460.18. 3. Ms Thomson had, on 16 March 2011, been seated in a stationery motor vehicle which was run into from behind. She was employed as a dental hygienist but ceased work shortly thereafter and, apart from some attempts to return to work, has not worked since. 4. In the period between 16 March 2011 and Assessor White's assessment of Ms Thomson's claim, the latter saw numerous medical practitioners and was involved in numerous applications before the Motor Accidents Authority Assessors. A number of reports from those doctors and assessments which had been made were before Assessor White. Also in evidence before Assessor White was a video-recording taken by an investigator engaged on behalf of QBE. 5. Assessor White concluded that in the accident of 16 March 2011, Ms Thomson suffered injuries to her neck and back by way of an aggravation of pre-existing medical conditions. The Assessor's reasons included the following: 12 The Insurer submits that the Claimant suffered a minor neck injury at the time of the accident and made no complaints of low back pain until 5 to 6 days after the accident. They say the ongoing loss flowing from these injuries must be limited particularly in light of the extensive pre-accident history of pain, disability and psychological symptoms. 13 The police report refers to no visible damage to the Insured's vehicle. However, it does note damage to the rear of Ms Thomson's vehicle. Ms Thomson says immediately following the accident she felt neck pain and by the end of the weekend, low back pain. Of significance, the Independent MAS Assessor Harvey-Sutton found that Ms Thomson suffered cervical and lumbar soft tissue injury and assessed Whole Person Impairment at 5%. She did not discount for any pre-existing injury. Ms Thomson presented to the Assessor in a genuine and straightforward manner. 14 The Insurer relies on Dr Spira. He suggests that Ms Thomson's responses to his physical examination "were not credible". The doctor believes that Ms Thomson "has had a psychological reaction to the accident with gross over evaluation of injuries and the emergence of a behavioural disorder which does not relate directly to the physical trauma she sustained". He considers she has exaggerated her disabilities and the soft tissue injuries have long resolved. I note Dr Spira is a neurologist and not trained in psychiatry. He is the only doctor who has formed the opinion that Ms Thomson is not genuine. Dr Lahz does mention "frequent pain behaviour" during an examination. 15. In addition to Dr Spira, the Insurer has presented a number of video surveillance discs which show Ms Thomson attending medical examinations. From my observations she appeared to move at times with no restriction and at other times, I observed her to be severely disabled. I could find no reason for the change in her movements. However, nothing in the surveillance leads me to conclude that Ms Thomson is exaggerating her symptoms. 16. I accept injuries to her neck and back sustained in this accident are ongoing. Dr Casikar provided an opinion for the Workers Compensation Insurer. He believed her injuries relate to an aggravation to pre-existing medical conditions. Coupled together with this opinion and the assessment of Dr Harvey-Sutton, I accept these findings. I also accept that Ms Thomson has developed a secondary psychological reaction to her injuries which are described by Dr Lahz as a "Chronic Pain Syndrome". 1. Summarised, the errors attributed to Assessor White during the course of these proceedings were: First error 1. The Assessor failed to identify as an issue and make a determination as to Ms Thomson's credit. 2. The Assessor denied QBE procedural fairness in failing to consider or make a finding that Ms Thomson's credit was adversely affected without first indicating to QBE that no such finding would be made. Second error A finding concerning matters depicted on a video recording that "I could find no reason for the change in her movements" was not logical or rational, constituted a failure of Assessor White to consider a relevant consideration and is afflicted by legal unreasonableness. Third error Assessor White failed to take into account relevant considerations she should have taken into account, namely the findings of Dr Breslin and Dr Fitzsimons. Fourth error Assessor White failed in a number of important respects to set out any proper reasons, namely: 1. why the video surveillance did not found an adverse determination concerning Ms Thomson's credit; 2. why different versions of events given by Ms Thomson to different medical specialists did not go to her credit; 3. how a weekly loss of $1,596.75 was determined when Ms Thomson "had determined to resign from her work" before 11 March 2011; 4. how and why it took 3½ years for Ms Thomson's weekly economic loss to decrease. 1. The limits on a court asked to review a decision of a claims assessor have been considered on a number of occasions and there is no need for me to say more on the topic than that to succeed in setting aside an assessor's decision a party must establish jurisdictional error, a constructive failure to exercise jurisdiction or legal unreasonableness – Craig v State of New South Wales (1995) 184 CLR 163, 179; Minister for immigration and Citizenship v SZMDS (2010) 240 CLR 611, 645; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 363. Particularly given the requirement in s 94(5) of the Motor Accidents Compensation Act 1999 (NSW) and clause 18.4 of the Motor Accidents Authority Claims Assessment Guidelines (the Guidelines) that an assessor provide reasons, albeit reasons which are brief, a failure to provide reasons constitutes an error within the group to which I have referred – Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [31], [33], [130]. 2. The decision of the majority in Minister for Immigration and Citizenship v Li makes it clear that legal unreasonableness encompasses circumstances where: A decision maker has failed to give adequate weight to a relevant factor of great importance (at [72]); A decision maker has reasoned illogically or irrationally (ibid); A decision lacks evidence and intelligible justification (at [76]); and It is not apparent how a conclusion was reached, but the decision itself bespeaks error (at [82] and [85]). 1. Notwithstanding the limits of proceedings by way of judicial review, a number of the grounds advanced on behalf of QBE require attention to a deal of the evidence which was before Assessor White. It is convenient to refer to such evidence as I deal with particular grounds. Having regard to the conclusions at which I have arrived I do not find it necessary to deal with all of the grounds relied upon by the Plaintiff. Ground One 1. The Assessor failed to identify as an issue and make a determination as to Ms Thomson's credit . 2. The Assessor denied QBE procedural fairness in failing to consider or make a finding that Ms Thomson's credit was adversely affected without first indicating to QBE that no such finding would be made. 1. Although the Assessor could have been more explicit on the topic of the first aspect of this first ground, I do not regard it as made out. In paragraphs 12 to 16 of her reasons the Assessor refers to a finding by Assessor Harvey-Sutton and, in effect quoting from Dr Harvey-Sutton's report, records that "Ms Thomson presented to the Assessor in a genuine and straightforward manner". 2. In the next paragraph she then refers to the opinion of Dr Spira that Ms Thomson's responses to his physical examination "were not credible" and that she had exaggerated her disabilities and observed that he was the only doctor who had formed the opinion that Ms Thomson was not genuine, albeit adding a somewhat elliptical reference to Dr Lahz. 3. Assessor White then refers to the results of the video surveillance, concluding that there was nothing in it that would lead her to conclude that Ms Thomson was exaggerating her symptoms. Assessor White then goes on to accept findings of Dr Casikar and Dr Harvey-Sutton and conclude that Ms Thomson suffers from an aggravation of pre-existing medical conditions. A major tenor of this analysis by Assessor White is the existence of conflict in the evidence before her, including direct evidence of Ms Thomson's movements what evidence should be accepted. Thus it is that the first aspect of Ground One fails. 4. The second aspect of this ground also fails. QBE had the opportunity to make submissions concerning Ms Thomson's credit, an opportunity of which its written submissions indicate it took full advantage. There is no obligation on a judge or tribunal, minded to reject submissions made, to give a party a second bite of the cherry, so to speak, by warning that that submissions made are liable to be rejected. See Tweedie v R [2015] NSWCCA 71; Kurt v R, Joshua v R [2014] NSWCCA 318. Ground Two A finding concerning matters depicted on a video-recording that "I could find no reason for the change in her movements" was not logical or rational, constituted a failure of Assessor White to consider a relevant consideration and is afflicted by legal unreasonableness. 1. The remarks quoted in this ground, appearing as they do just after the Assessor has referred to what might be regarded as substantial inconsistency in Ms Thomson's movements suggests an abdication of the Assessor's responsibility. 2. During much of the video-recording of Ms Thomson's movements, she seems to move perfectly normally and not be in any unusual emotional state. Included in the period when her condition appeared as I have described was a period concluding with her entering a building in which Dr Harvey-Sutton's rooms were situate. Despite this, Dr Harvey-Sutton recorded that she: observed Ms Thomson in the waiting room and also in the consultation room. She came to the consultation distressed. 1. As I have indicated in my consideration of the first ground, there was a significant challenge to Ms Thomson's credibility. The contrast between Ms Thomson's appearance just before seeing Dr Harvey-Sutton and during consultation provided even further reason for the Assessor to deal with the inconsistency in movement that she records. 2. Thus there is much to be said for the view that this ground should succeed. However, in light of the conclusions I have reached below I do not need to make any final decision on this ground. Ground Three Assessor White failed to take into account relevant considerations she should have taken into account, namely the findings of Dr Breslin and Dr Fitzsimons. 1. Dr Breslin is a urologist who examined Ms Thomson in August 2012. He found numbness in some areas of her groin, and reported on the results of a urodynamic test carried out in November 2011, concluding that Ms Thomson's bladder symptomatology, of which the most obvious symptom was a degree of incontinence, was neurogenic. He recorded that Ms Thomson had walked into his office and gave her history in a straightforward and pleasant fashion, and that she pointed to her lumbar spine as the site of discomfort and was unwilling to do any flexion or extension so this was not persisted with. 2. I do not see in Dr Breslin's report anything of relevance to the reasons of Assessor White or to Ms Thomson's earning capacity. 3. Dr Fitzsimons is a neurologist who saw Ms Thomson in January 2014 having been asked by a review panel to consider whether or not there is "objective evidence that there is a neurological injury causing left-labial numbness and possible sexual dysfunction" relating to the March 2011 accident. Dr Fitzsimons report extends to some 10 pages and deals with a variety of bodily changes that could account for symptoms of which Ms Thomson complained and also of possible causes of such bodily changes. 4. It is not necessary for the purposes of these reasons to canvass those matters but included in Dr Fitzsimons' remarks are the following: …the situation is complicated by the unusual distribution of variably intense sensory impairment in the left leg and apparently non-organic distribution of impaired sensation in the left leg as well as global foot weakness… Nevertheless, on examination, she reported some impaired sensation down the whole of the lateral aspect of her left leg, which did not conform to any particular nerve distribution as well as dense loss of sharp sensation over the medial thigh. … The presence of very probably non-organic manifestations makes the assessment of any underlying pathology in this case particularly difficult. This has been alluded to in the various earlier reports. Within the constraints of the referral, it is far from clear that there is an underlying organic disorder requiring the kind of high level care she is receiving. 1. These remarks clearly raise a question whether Ms Thomson was being honest or genuine in her complaints to Dr Fitzsimons. 2. Assessor White did rely on Dr Harvey-Sutton's assessment that Ms Thomson "presented in a genuine and straightforward manner" though perhaps unfairly ignoring the balance of the same sentence from Dr Harvey-Sutton's reasons, viz. "but there were non-organic/inconsistent signs with reported pins and needles on performing a Tinel's-type test on the left upper arm, with pins and needles extending between the elbow and shoulder". 3. In Campbelltown City Council v Vegan at [121] Basten JA remarked in the context of statutory medical assessments made under the NSW workers compensation legislation: Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. 1. Assessor White having chosen to rely on one prior assessment bearing on the Plaintiff's credibility and without providing any reason why it was particularly important or preferred, it behove her to explain why evidence, apparently credible, obviously significant and tending, at least arguably, in the other direction was rejected or discounted. I would add, although I do not feel it necessary to rely on the fact, that a number of other reports also commented on the apparent inconsistency between symptoms reported by Ms Thomson and other information doctors had. This argues for it being more important for Assessor White to properly consider and refer to matters such as those commented on by Dr Fitzsimons. 2. In so concluding I do not ignore the guideline that the Assessor's statement of reasons should be "set out as briefly as the circumstances of the assessment permit" but she has said nothing about the reasoning process that led her to ignore Dr Fitzsimons' observations. 3. Thus, the Assessor has failed to give adequate weight to a factor of great importance and her decision is legally unreasonable. Ground Four Assessor White failed in a number of important respects to set out any proper reasons, namely: 1. why the video surveillance did not found an adverse determination concerning Ms Thomson's credit; 2. why different versions of events given by Ms Thomson to different medical specialists did not go to her credit; 3. how a weekly loss of $1,596.75 was determined when Ms Thomson "had determined to resign from her work" before 11 March 2011; 4. how and why it took 3½ years for Ms Thomson's weekly economic loss to decrease. Ground four (iii) and (iv) 1. $1,596.75 was an agreed figure as representing the amount that Ms Thomson was earning at the time of the subject accident. The Assessor concluded that "Ms Thomson's past loss is the wages she was earning at the date of the accident until the present time". 2. The Plaintiff contends that this finding is inconsistent with evidence that the Assessor accepted. In that connection the Assessor's reasons include the following: 17. At the time of the accident Ms Thomson had been working as a dental hygienist for over 30 years. Her job involved sitting in an awkward position for long periods, leaning over patients. According to Dr Casikar, the job created problems for her back. He believes that doing this type of work for over 30 year has had "a significant cumulative contribution on her pre-existing degenerative disease of her back". 18. According to her employment records and her own evidence at the assessment conference, Ms Thomson was actively looking for alternate work at the time of the accident. The reason for this was she was unhappy with her work environment and hoped to alter her job description to a more managerial and training-mentor role. In fact, she says prior to the accident she had negotiated an agreement with Dr Sellia. Unfortunately I have no corroboration of this opportunity. Ms Thomson has not approached Dr Sellia since the accident. She does not know if there is any position, such as managerial or as a trainee/mentor still available with Dr Sellia. Ms Thomson says she believes she could work as a dental hygienist but could only tolerate 1 patient a day. 19. The Insurer says before the accident, Ms Thomson would have changed her employment working lesser hours for substantially less money. The basis for this argument is the difficulty she was experiencing in the dental practice and her recurring back complaint. Other than Ms Thomson's evidence, I have no corroborative evidence of Ms Thomson's likely opportunities if and when she left her employment but for the accident. 20. [In this paragraph the Assessor refers to an earlier period of incapacity, and gradual improvement and continues]: From early August [2010], she was rendered fit for pre-injury duties with 10 minute breaks to enable her to stretch. She remained fully fit until the accident in March 2011. 21. Mr Stone submits that these certificates demonstrate a gradual improvement in her condition with a return to full-time duties 7 to 8 months before the accident. Although I agree, her past history of recurrent back complaints were increasing and she was off work for longer periods. 22. Applying s 126 of the Motor Accident Compensation Act (the Act), the most likely future circumstances that Ms Thomson would have gradually decreased her hours as a dental hygienist and changed her role from hands on to training and mentoring younger professionals. This gradual change would have impacted on her wages. 25. I prefer the diagnosis of Dr Harvey-Sutton, an Independent MAS Assessor. At the time of the accident Ms Thomson was working at her full capacity. She intended to change her employment, because of this accident this did not happen. She has worked full-time as a dental hygienist for over 30 years. There is no evidence to support the Insurer's submission that I should accept a substantial decrease in the Claimant's past economic loss from $1,596.75 net per week to $200 net per week. However, I do accept that she would have gradually decreased her hours and her role over a period of time. Nevertheless, this would have been a gradual change. I therefore accept that Ms Thomson's past loss is the wages she was earning at the date of the accident until the present time. The calculation therefore is as follows: Past 26. There is an agreement between the parties that Ms Thomson was earning $1,596.75 net per week at the time of the accident. Apart from a couple of trial days, she has not worked since 29 March 2011. Taking into account the actual earnings since the accident, I have calculated the number of weeks as approximately 186 weeks @ $1596.75 NPW. 26.1 186 weeks x $1596.75 = $296,995.50. 26.2 … 29. As set out above, I do accept that the most likely future circumstance is Ms Thomson would have sought suitable duties that allowed her the opportunity to take on a more managerial role which included training and mentoring. She is likely to have continued to see patients. She did reveal at the Assessment Conference that although she was highly skilled, few deantal practices could afford to employ her. As such, opportunities to secure employment were infrequent. 1. Ms Thomson gave evidence before Assessor White and was cross-examined. I am informed that in accordance with the usual practice there was no recording of the evidence beyond whatever parts the Assessor referred to in her report. However Ms Thomson did affirm some affidavits. In them she referred to a disagreement with the practice manager of the business in which she was employed, that she had continued in her employment until April 2011 but that: For many months leading up to my resignation I had been told by my employer to perform duties outside my scope of practice. My authority to perform orthodontic work was limited to mechanical adjustments upon direction from the dentist. My position did not allow me to make certain decisions regarding the treatment of orthodontic patients however when I sought direction from my employer I was often told that "you know more about the work than I do" and directed to carry out whatever work I considered was required. I frequently raised these issues with my employer that these directions were outside the scope of practice. I was becoming increasingly concerned that if a patient complained it could affect my licence to practise. This was part of the reason I handed in my resignation. 1. The topic was adverted to in a number of the reports that were before the Assessor. It is sufficient to refer to one. Dr Lahz, who it may be inferred was recounting information given to her by Ms Thomson, observed: At the time of the accident she was in the process of arranging alternative employment with a greater administrative role. … Immediately prior to the accident, she had been pain free although she had planned to change jobs because she could not change the workload in her present job. She intended to work fewer hours in a more administrative role. … She had enrolled in an on-line health management course and was keen to change career. … At this stage, she explained that she had been seeking alternative work (with another dental practice) before the subject accident, due to concerns about employer requests that she perform "orthodontic" duties "outside the scope of her professional training". … Immediately prior to the subject accident, Ms Thomson had been negotiating a possible position with another dentist who owned five dental practices. 1. Not all of these statements are consistent. To plan to change jobs is not as suggestive of an early or imminent change as "seeking alternative work" or "being in the process of arranging alternative employment". 2. On the other hand Ms Thomson's statement that she had been in contact with Dr Selia and made plans to meet with him suggests that, at least as far as it lay within her power to obtain another job on reasonable terms, she would do so sooner rather than later. Ms Thomson's concern at being required to perform duties outside her scope of practice and the possibility of losing her licence argues in the same direction. 3. There is certainly some difficulty in reconciling the Assessor's conclusions that Ms Thomson was actively looking for alternate work at the time of the accident, probably would have gradually decreased her hours with an impact on her wages with the Assessor's conclusion that Ms Thomson's wages would have remained at the same level from the date of the accident, 11 March 2011 to the date of the assessment, viz. 21 November 2014, a period of something over 3½ years. It is not obvious why the decreased income that was envisaged would not have occurred at all within that period and Assessor White provides no reasons for her conclusion. In this respect also there is error in her assessment. 4. It might also be noted that, given the Assessor's remarks in paragraphs 18, 22 and 26, that error is apparent on the face of the record even if one ignores the other evidence to which I have referred. 5. Section 94(5) of the Motor Accidents Compensation Act requires a claims assessor to set out the assessor's reasons for the assessment. Clause 18.4 of the Guidelines promulgated under the Act requires that an assessor set out "the reasoning processes that lead the assessor to the conclusions made". In neglecting to state why, despite these indications of an earlier reduction in income, the Assessor calculated Ms Thomson's damages on the basis of her pre-accident income the Assessor has failed to comply with these provisions. Decision 1. The errors to which I have referred in my consideration of Grounds 3 and 4(iii) and (iv) mean both that the decision of Assessor White must be set aside and I do not need to embark on a consideration of Grounds 2 and 4(i) and (ii). 2. The form of orders appropriate in the circumstances was not the subject of discussion during the hearing. Those which seem to me appropriate are as follows: 1. An order in the nature of certiorari setting aside the decision of the Second Defendant in her capacity as a Claims Assessor of the Motor Accidents Authority of New South Wales dated 27 October 2014 in CARS matter number 2013/12/2238. 2. An order in the nature of prohibition preventing the Defendants or any of them by their officers, servants or agents from acting on or taking any further step in reliance on the said decision. 3. An order in the nature of mandamus remitting the matter to the Third Defendant for determination of the application by a different Claims Assessor and according to law. 4. An order that the First Defendant pay the Plaintiff's costs of the proceedings. ********** 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: 29 May 2015