Connors v Nominal Defendant (No 1)

[2020] NSWDC 435

District Court

New South Wales

Medium Neutral Citation:

Connors v Nominal Defendant (No 1) [2020] NSWDC 435

Hearing dates:

4 June 2020, 9-12 June 2020, 15-16 June 2020.

Date of orders:

4 June 2020

Decision date:

04 June 2020

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Application refused.

Legislation Cited:

Civil Liability Act 2002

Civil Procedure Act 2005

Motor Accidents Compensation Act 1999

Category:

Procedural and other rulings

Parties:

Summer Rain Connors – Plaintiff
Nominal Defendant - Defendant

Representation:

B. Adams (Adams & Co. Lawyers) - Plaintiff
L. Patrick (Vardanega Roberts Solicitors) - Defendant

File Number(s):

2018/00159755

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: These proceedings are currently listed for hearing during the sittings of the Court commencing at Lismore on Tuesday 9 June 2020. Monday 8 June 2020 is the Queen's Birthday public holiday. There is one working day between this day and the scheduled commencement of the current proceedings. As the list at Lismore currently is, it is likely that these proceedings will start on the first day of the sittings, that is, next Tuesday 9 June 2020, probably about midday or immediately after lunch. The defendant seeks an adjournment, which necessarily involves the removal of this matter from the list matters to be heard at Lismore during the fortnight commencing 9 June.

2. As I understand it, there is only one other matter that is ready to proceed to trial in the sittings, as other cases had either been adjourned or been settled. The important point to note is that the Court will have time to hear and determine the current proceedings, commencing next Tuesday. The proceedings arise out of a fatal motor vehicle accident, which occurred on 22 September 2013, almost seven years ago. In that motor vehicle accident, the plaintiff's father was killed. The plaintiff's claim is what lawyers would traditionally call "nervous shock", but now, in accordance with the Civil Liability Act 2002, ought be called "mental harm".

3. The proceedings were commenced by the plaintiff on 22 May 2018. I am unaware of what may have occurred before that time but the defendant does not seek to raise any limitation defence. The only defence which the defendant wishes to plead is contributory negligence. I have granted leave to the defendant, which has not yet filed a defence, to file a defence limited to contributory negligence.

4. The plaintiff's claim, according to the current particulars, is for posttraumatic stress disorder, a depressive disorder with anxiety symptoms, cannabis dependency, and panic disorder with agoraphobia. The plaintiff has been assessed by Dr Mark Scurrah, a psychiatrist retained by the Medical Assessment Service, under the Motor Accidents Compensation Act 1999. The certificate generated by Dr Scurrah is this:

"The following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%:

a chronic posttraumatic stress disorder,

a chronic depressive disorder with anxiety symptoms,

cannabis dependence,

panic disorder with agoraphobia."

Dr Scurrah in fact diagnosed a whole person impairment of 26%. The certificate of Dr Scurrah bears the date of 10 December 2018. To make his assessment, Dr Scurrah interviewed the plaintiff on two occasions; on 26 September 2018 and 10 December 2018.

5. The defendant made an application for a review of the medical assessment pursuant to s 63(1) of the Motor Accidents Compensation Act 1999. The Proper Officer of the Medical Assessment Officer Service dismissed that application, for reasons dated 2 April 2019. The Proper Officer was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Not only are Dr Scurrah's certificate and reasons before me but also are the reasons of the Proper Officer dismissing the application for review.

6. The proper officer summed up the issues in dispute as being whether insufficient weight had been given by the medical assessor to the plaintiff's pre accident medical history, whether too much reliance was placed by the medical assessor on the history given to him by the plaintiff and whether there was any assessment of any pre-existing impairment, none having been made by the medical assessor but, in the opinion of the defendant, such an assessment ought to have been made. The reasons of the proper officer include these:

"18. It is clear the Assessor has considered the documentation and questioned the claimant at the second assessment to clarify her drug and alcohol use prior to and since the motor accident, in light of the letter from Tarmons House. He has used this information to determine the claimant's diagnoses at five distinct periods and assessed the extent to which her pre accident lifestyle, activities and habits have changed as a result of the motor accident. He notes she 'denied significant depression and significant anxiety prior to her father's death. In my opinion, the degree to which it was present is not quantifiable, given Ms Connors' denial and given she was functioning, attending school, TAFE and the traineeship'.

19. The Assessor has determined the PIRS assessment based on diagnoses of chronic PTSD, Cannabis Dependence, Chronic depression with anxiety, and Panic disorder with agoraphobia. He has determined her pre-existing impairment based on diagnosis [or] diagnoses of Cannabis Abuse, Alcohol Abuse, Amphetamine Abuse, noting any depression or anxiety at the time was not quantifiable. He notes that despite her drug and alcohol use she was attending school, TAFE and traineeship and attending social functions. While I note the applicant's opinion and supposition that the claimant would have had poor hygiene, self-care and anger management issues prior to the accident, has always been dependent on others for transportation and would have had drug related concentration problems due to her drug use prior to this accident, the applicant does not point to any information before the

Assessor that would substantiate this claim.

20. I am satisfied the Assessor has conducted his assessment in accordance with cl 1.18 of the Guidelines. He has reviewed the available evidence, considered the claimant's history and reported symptoms from the time of the assessment. He has recorded his findings and provided reasons for his decisions, which I am satisfied set out the extent to which the claimant's functioning has changed since the motor accident. I do not accept the applicant's views over the properly trained medical assessor's and it follows that the applicant has not satisfied me of reasonable cause to suspect a material error in the assessment."

7. Following upon that decision, the defendant arranged for the plaintiff to be examined by Dr Graham Vickery on 15 July 2019. The plaintiff failed to attend that appointment. As I understand it, the plaintiff was pregnant at that time. The plaintiff was delivered of a boy child in or about early March.

8. Subsequently, the matter came before Levy DCJ on 5 November 2019. His Honour made these orders:

"1. Defendant to serve any expert medical evidence relied upon by 10 February 2020.

2. Plaintiff to serve any expert medical evidence relied on by 10 February 2020.

3. Defendant to determine if it will seek a review of the MAS certificate dated 10 December 2018 by 10 February 2020.

4. Any application for review of the MAS certificate is to be filed with MAS and served upon the plaintiff by 10 February 2020.

5. Listed for directions hearing for further orders on 17 February 2020."

9. Despite those orders and that timetable, the defendant did not commence to make inquiries about a re-examination of the plaintiff until 16 January 2020. On 21 January 2020, the defendant received an email from the plaintiff pointing out the plaintiff's inability to travel. At that time she would have been very heavily pregnant.

10. The matter came before Levy DCJ again, at Lismore, on 10 February 2020, at the commencement of the sittings, which were to last a fortnight. Why the matter was dealt with on 10 February, as distinct from 17 February, is not clear. In any event, his Honour made these orders:

"1. The parties are to attempt mediation or informal settlement conference on or before 31 March 2020.

2. The plaintiff is to serve any evidence it intends to rely upon, on or before 15 April 2020.

3. The defendant is to serve any evidence it intends to rely upon, on or before 22 April 2020.

4. The plaintiff is to serve any evidence in reply on or before 30 April 2020.

5. The matter is listed for hearing, with an estimate of two days (plus), at the sittings of the District Court at Lismore commencing 9 June 2020."

11. On 10 March 2020, the defendant arranged for the plaintiff to be examined by another psychiatrist, Dr Chris Rikard-Bell, on 23 April 2020. Unfortunately, because of the COVID-19 emergency, the plaintiff could not travel from her home, in the northern rivers, to Sydney to attend upon Dr Rikard-Bell because flights between Ballina and Sydney were cancelled. Eventually, the examination with Dr Rikard Bell took place, on 23 April 2020, by means of Skype.

12. Dr Rikard-Bell did not provide his report to the defendant until 25 May 2020. That was served upon the plaintiff by letter dated 29 May 2020. One will note immediately that, although the directions were given by Levy DCJ on 10 February 2020 requiring the defendant to serve any evidence it intended to rely upon before 22 April 2020, the defendant delayed one month, until 10 March 2020, in order to make arrangements for the plaintiff to be examined by Dr Rikard Bell on 23 April 2020, which would have made it impossible for the defendant to comply with the third order made by his Honour on 10 February 2020. Nevertheless, the plaintiff takes no objection to the tender of Dr Rikard-Bell's report.

13. The defendant seeks an adjournment because it has made a further application to SIRA for a further assessment of a dispute as to permanent impairment, pursuant to s 62(1)(a) of the Motor Accidents Compensation Act1999. That application was made yesterday. In essence, the opinion of Dr Rikard-Bell is that the extent of the plaintiff's whole person impairment is 7% but that is to be reduced to 6% because, of that 7%, one seventh was due to a pre-existing impairment. In essence, Dr Rikard-Bell provides an opinion different to that of Dr Scurrah and the defendant wants to seek to persuade the Medical Assessment Service to issue a fresh certificate, in essence one which would certify the plaintiff's permanent impairment as being less than 10%, such that the plaintiff would not be entitled to damages for non-economic loss.

14. Section 61(2) of the Motor Accidents Compensation Act 1999, provides this:

"Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned."

The assessment of Dr Scurrah means that I am bound by his diagnoses and I am bound by his finding that the extent of the impairment exceeds 10%, such that the plaintiff is entitled to damages for noneconomic loss. It does not mean that I am bound to find that the extent of the whole person impairment is 26%, nor does it mean that I am bound not to find that there may have been improvement in the plaintiff's condition since the time that she was examined by Dr Scurrah. The binding nature of the opinion of Dr Scurrah only concerns those matters contained in his certificate, not in his reasons.

15. The application is made extremely late. There has been delay on the defendant's part. That delay can be seen in a failure by the defendant to follow up the failure of the plaintiff to attend upon Dr Vickery and not doing anything until after the orders made by Levy DCJ on 5 November 2019. Even then, there was delay in making arrangements for the plaintiff to be examined between that date and the directions hearing at Lismore on 10 February 2020. Even then, there was a delay of another month before the appointment of the examination with Dr Rikard-Bell for 23 April 2020.

16. Civil Procedure Act 2005, s 56(1), provides that "The overriding purpose of this Act and rules of court in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of real issues in the proceedings". These proceedings, as I said, have been on foot for two years and three months. They ought to have been finalised within 12 months. As I pointed out, it is almost seven years since the fatal motor accident which underlies these proceedings. The plaintiff is a relatively young woman, who now has two young children and has had what might be referred to as an unsatisfactory or difficult adolescence and young adulthood. She wants these proceedings heard and determined. Her life can hardly have been an easy one. Her only full sibling committed suicide in 2017. Whether that was in any way related to the death of the father of the plaintiff and her brother in September 2013, I do not know. It may have some part to play; it may not.

17. However, things must be brought to a head. The very nature of a claim for mental harm is that continuously giving histories to medical practitioners and the like, recounting them to lawyers, then recounting them to the Court revivifies, often, the hardship which the sufferer has experienced in the past, and the end of litigation can often lead to amelioration of symptoms because, once the proceedings are complete, the matter can be put behind the sufferer, in this case, the plaintiff. Both principle and commonsense indicate that the hearing ought proceed.

18. The defendant may not be successful in its application to the Medical Assessment Service because the mere opinion of another medical practitioner may be insufficient to enable the Medical Assessment Service to permit the review of the original decision of Dr Scurrah. It may not change anything at all.

19. Bearing in mind the delay to which I have referred and the long history of this matter, I believe it completely inappropriate to adjourn the proceedings. The application for adjournment is accordingly refused. I confirm the listing of the matter at Lismore on Tuesday 9 June 2020.

20. The defendant will pay the plaintiff's costs of this application.

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Decision last updated: 11 August 2020