Crnobrnja v Motor Accidents Authority of NSW - [2010] NSWSC 633

No judgment structure available for this case.

CITATION: CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES [2010] NSWSC 633

HEARING DATE(S): 10 December 2009

JUDGMENT DATE :
17 June 2010

JUDGMENT OF: Hulme J at 1

DECISION: 1.Set aside the decision of the Second Defendant dated 11 July 2008 in proceedings 2008/04/0463SC.
2.That the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 to refer the Plaintiff’s Application for Further Assessment of a Permanent Stabilisation of a Permanent Impairment Dispute, dated 8 January 2008 being annexure A to the affidavit of Vic Petrovich of 1 September 2009 and numbered 2008/04/0463SC, for further medical assessment according to law.
3. I reserve the question of costs.

PARTIES: Mirjana Crnobrnja (Plaintiff)
Motor Accidents Authority of New South Wales (First Defendant)
Josephine Redmond (Second Defendant)
AAMI Limited (Third Defendant)

FILE NUMBER(S): SC 30047/09

COUNSEL: Ms BK Nolan (Plaintiff)
MA Robinson (Third Defendant)

SOLICITORS: NSW Compensation Lawyers
I V Knight Crown Solicitor
Moray & Agnew

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

RS HULME J

File No: 030047/09

Thursday, 17 June 2010

MIRJANA CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NSW, Josephine REDMOND, and AAMI Limited

JUDGMENT

: By Summons filed on 8 July 2009 the above named Plaintiff seeks:-

certiorari

mandamus

Supreme Court Act 1970

Motor Accidents Compensation Act 1999

2 Particulars of the error referred to in the first prayer were:-

(a) The Second Defendant overstepped her statutory function, misdirected herself and/or asked herself the wrong question and/or applied the wrong principle as to what was required of her under s63(3) of the Act and has thereby exceeded her jurisdiction; and/or

(b) By failing to construe s63(3) of the Act correctly, the Second Defendant, so misdirected, formed an opinion not reasonably open to her under the Act.

3 The First and Second Defendants have filed submitting appearances. The Third Defendant opposes the relief sought.

4 The statutory scheme established by and under the Motor Accidents Compensation Act has been the subject of description in a number of decisions in this Court and the Court of Appeal including, recently, the decision of R A Hulme J in Pratap v Motor Accidents Authority of New South Wales and Ors [2009] NSWSC 1325. Accordingly, it is unnecessary for me to do more than refer briefly to its incidents. These include an assessment by a doctor of the degree of incapacity from which a person claiming to have been injured suffers, the provision of a certificate by the assessor as to the matters referred for assessment and inclusion in the certificate of the reasons for any finding. Guidelines have been laid down for the measurement or determination of any degree of incapacity. These Guidelines include:-

The Motor Accidents Authority’s Guidelines for the Assessment of the Degree of Permanent Impairment, of 1 October 2007 (hereinafter referred to as the “MAA Guidelines”);

The American Medical Association’s Guides to the Evaluation of Permanent Impairment (hereinafter referred to as the “AMA Guidelines”; and

The Motor Accidents Authority’s Medical Assessment Guidelines.

5 The assessment must be in terms of “Diagnosis-related estimates” (DREs) and matters that lead to a claimant being placed in a particular category are specified. Dr Truskett, the assessor in this case, placed the Plaintiff in the category DRE I. It is contended that this was the result of errors on his part and but for those errors he would have placed her in DRE II. Hence the Plaintiff’s Application for Review that led to the decision of the Second Defendant – events contemplated by s63 of the Act which, so far as is presently relevant, provides:-

“(1) A party to a medical dispute may apply to the Proper Officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) …

(3) The Proper Officer of the Authority is to arrange for any such application to be referred to a panel of at least three medical assessors, but 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.”

6 Some expansion, amplification or definition of, or matters to be taken into account by, the Proper Officer is provided by Chapter 10 of the Medical Assessment Guidelines to which I refer below.

7 The arguments presented to me also make it necessary to record those parts of the Guidelines as define the differences between DRE I and DRE II. As an indication of the specificity involved, I also record the exposition of DRE III. As amended by the MAA Guidelines, the AMA Guidelines lay down as the specification for these DRE Categories as follows:-

DRE Lumbosascral Category 1
Description and Verification: The patient has no significant clinical findings, no muscle guarding, no documentable neurological impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

DRE Lumbosascral Category 2

Description and Verification:

no

Structural Inclusions:

without

A spinous or transverse process facture with displacement without a vertebral body fracture is a category II impairment because it does not disrupt the spinal canal.

DRE Lumbosacral Category III: Radiculopathy

Description and verification

Structural Inclusions

not

with

Differentiation from congenital and developmental conditions may be accomplished by examining pre-injury roentgenograms or a bone scan performed after onset of the condition.

8 The specification for Lumbosacral Categories IV to VIII and Cervicothoracic (i.e. cervical – see MMA Guidelines, clause 4.4 ) and Thorocolumbar (i.e thoracic) Categories I to VIII contain roughly similar levels of detail to DRE Lumbosacral Category III.

9 The MAA’s Permanent Impairment Guidelines for the assessment of the degree of permanent impairment include the following:-

1.3 The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.

1.40 Some Tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, assessors should make no separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA 4 Guides should not be used. However, each chapter of the AMA 4 Guides includes an allowance for associated pain in the impairment percentages

1.42 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of claimants’ efforts. The assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly…

4.6 The assessor should start with table 4.1 of these MAA guidelines to establish the appropriate category for the spine impairment. …

4.16 If an assessor is unable to distinguish between two DRE categories, then the higher of those two categories should apply. The inability to differentiate should be noted in the assessor’s report and explained.

4.19 DRE I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor. DRE II applies when there are clinical findings made by the assessor, as described in the sections “Description and Verification” … with the amendments, for each of the three regions of the spine. Note that symmetric loss of movement is not dysmetria and does not constitute an objective clinical finding.”

4.20 When allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions.

10 There are definitions of some of the clinical findings including “Muscle spasm”, “Muscle guarding”, “Nonuniform loss of spinal motion (dysmetria)” and “Non-verifiable radicular complaints”. These are:-

Muscle spasm

Muscle guarding

Nonuniform loss of spinal motion (dysmetria)

Non-verifiable radicular complaints

11 The Explanatory Note to the Medical Assessment Guidelines say they instruct officers of the MAA, parties to claims and others how to make and deal with an application to the Medical Assessment Service (hereinafter referred to as “MAS”). Chapter 10 refers to Reviews of Medical Assessments and envisages that any request for a Review may result in a reply and that the Proper Officer will take any Reply into account when considering the Application. Paragraphs 10.10 and 10.11 include the following:-

10.10 The Proper Officer may only refer a matter to a review panel if satisfied that there is reasonable cause to suspect the assessment of the single medical assessor is incorrect in a material respect, having regard to:

10.11 For the purposes of section 63 the word “material” means relevant and capable of altering the outcome of a dispute about:

10.11.1 …

10.11.4 permanent impairment from “Not Greater than 10% Whole Person impairment” to “Greater than 10% Whole Person Impairment” or vice-versa; or …”

12 Relevantly for present purposes, there have been 4 stages in the process under the Act to which reference must be made. These are:-

1. A Further Certificate of Determination of Assessment made under Part 3.4 of the Act as to the Degree of Permanent Impairment of the Plaintiff arising from an accident she had suffered on 8 July 2003. This was issued on or about 2 May 2008 by a Dr Truskett.

2. An Application for a Review of Dr Truskett’s Assessment, made by the Plaintiff on or about 28 May 2008.

3. A Reply to that Application, made on behalf of the Third Defendant on or about 11 July 2008.

4. The decision of the Second Defendant Josephine Redmond, described as the Acting Proper Officer, Motor Accidents Assessment Service and recorded in a “Statement of Reasons for Decision; Application for Review”, made on of about 28 July 2008.

13 It is not necessary that I refer to details of the Reply but it is necessary to make reference to some of the detail in the other documents in order to understand the argument before me.

14 The Further Certificate of Determination referred to reasons which were attached and were stated to be part of the assessor’s determination. They included reference to a variety of matters including a list of documentation (including radiological images and reports), a review of the documentation, a history of symptoms including approximately half a page devoted to recording the Plaintiff’s complaints of pain in her neck and back, “Findings on Clinical Examination”, a table wherein there was specification of the relevant parts of Guidelines by reference to which an assessment of the Plaintiff’s incapacity had to be, or had been, made and a section recording the assessor’s determinations and comments. In the section entitled “Findings on Clinical Examination”, Dr Truskett said, inter alia (I have numbered the passages for ease of later reference.):-

(i) “(The Plaintiff) walked with a slight limp involving her right leg. She could dress and undress without difficulty and climbed on and off the examination couch without difficulty. She had a flat affect.

(ii) On examining her neck, neck flexion and extension were normal. Lateral flexion to the left and right were normal. Rotation to the left and right were normal. There was no para-cervical muscle spasm. Movements were performed slowly and deliberately. There was mild local tenderness.

(iv) Straight leg raising was possible to 80 degrees on the right and 90 degrees on the left. Reflexes in both the lower limbs were normal.

(v) Back flexion was possible to reach her knees without stretched fingers. Back extension was normal. Lateral flexion to the left and right was normal. Rotation to the left and right was normal. There was some discomfort at movement of (sic) the extremes of range. She could walk on her toes and heels. She could manage a half squat. This squat was reduced by knee pain.”

15 Under a heading “Comments” on page 13 of his Reasons Dr Truskett included the following:-

(vi) “Cervical spine – a 0% whole person impairment has been assigned as on clinical examination of the descriptor most appropriate is DRE Cervicothoracic Category 1, as there is no significant clinical findings, no muscle guarding and no documentable neurological impairment.”

(vii) Thoracic Spine – a 0% whole person impairment has been assigned as a descriptor fit DRE Category 1, where is no muscle spasm and no neurological deficit (sic).

16 Dr Truskett’s review of the radiological images and reports included the following:-

Ex-ray Thoracic and Lumbar spine CT Thoracic and Lumbar Spine dated 16 September 2003 – these were essentially normal studies.

MRI Thoracolumbar Spine dated 15 March 2004 – this was a normal study.

MRI Whole Spine dated 18 April 2005 – this was a normal study.

17 The errors or mistakes said in the Plaintiff’s Application of a Review of a Medical Assessment to be apparent or reflected in the passages just quoted were, in summary:-

(a) Dr Truskett had failed to be transparent as he should have been, given the Code of Conduct for medical assessors.

(b) He has failed to measure the degree of movement of extension, flexion and rotation and report on those matters.

(c) He failed to use a measuring device such as an inclinometer.

(d) He was obliged to report on asymmetric movement; therefore he must measure the degree of movement and report this and failed to do so.

(e) The diagnosis related estimates incorporate a criteria which requires testing for asymmetric loss of motion and hence measurements must be taken and the degree of movement obtained.

(f) The assessment does not indicate the degree of movement for flexion, extension, lateral rotation and lateral tilt.

(g) Dr Truskett did not state what was normal.

(h) The statement that “movements were performed slowly and deliberately” is equivalent to muscle guarding.

(i) The reasons omitted reference to the presence or absence of pain, muscle guarding or asymmetric movement in the course of examination.

(j) The conclusion expressed in the paragraph I have numbered (vi) does not reflect the findings on examination which were recorded and is not supported by those findings.

(k) The absence of findings in relation to asymmetry and muscle guarding mean that Dr Truskett could not assign a DRE Category 1.

(l) The statement in the paragraph I have numbered (vi) above does not reflect Dr Truskett’s findings during examination and recorded on page 7 of his report

(m) Any doubt in relation to the category within which a claimant should fall should be resolved in favour of the higher category and Dr Truskett failed to consider this;

(n) In accordance with paragraph 8.1 of the Code of Conduct for Medical Assessors, a medical assessor should act honestly and truthfully in performance of their assessment responsibilities; and

(o) The statement that the claimant could dress and undress without difficulty could not (honestly and truthfully) be made because Dr Truskett did not observe the claimant dress or undress (as she did behind a curtain) and there was no mention that the claimant requested a small chair to sit on while dressing and undressing.

18 Reasons for why these passages were said to contain error were given. It was said that the errors were material because Dr Truskett should have awarded a DRE category II impairment assessment of 5% and, because the Plaintiff was assessed as having impairments to other parts of her body, placing her back in DRE II would result in the Plaintiff exceeding the 10% whole person Impairment threshold.

19 The Second Defendant’s reasons for arriving at the conclusion she did include the following:-

“The medical assessor has commented on the movement of the cervical and lumbar spine, noting movement in all planes to be normal. (p.7). I am satisfied he has assessed the spinal impairment in accordance with 4.1 and 4.2 of the MAA Guidelines and after careful and thorough examination. I am not satisfied he has erred in not specifying the absolute degree of movement. He has clearly indicated spinal movement to be symmetric and normal. There is no error here.

In regard to the submission that the medical assessor failed to mention other criteria such as pain and guarding, I note the medical assessor comments on the claimant’s symptoms of pain at pages 5-6 of his reasons... . In regard to ‘guarding’, the medical assessor notes that DRE Cervicothoracic category 1 was most appropriate as “there is no significant clinical findings, no muscle guarding and no documentable neurological impairment”.

“Although the medical assessor does not specify “guarding” but refers instead to “spasm” for the lumbar spine, he clearly states the lumbar impairment to be DRE Category I. Additionally, the medical assessor has not indicated at any stage that he was unable to distinguish between two DRE categories and the application does not provide evidence to suggest a higher DRE category is applicable. I am not satisfied that there is an error here.”

“In regard to the assertion the medical assessor failed to observe the claimant dress and undress, despite his comments to the contrary, I note that the claimant has not indicated how this may be material to the assessment. I cannot verify whether the medical assessor did or did not observe the claimant dress/undress and, if the medical assessor has incorrectly recorded the details referred to above, this cannot be regarded as material error. I would concur with the Respondent that the medical assessor has based his impairment assessment on the defined clinical findings.”

20 The Plaintiff’s principal complaints in this Court seemed to me to be that the Second Defendant:-

(i) Failed to recognise the lack of transparency and breach of procedural fairness in Dr Truskett’s Assessment in that he -

(a) failed to measure and report on the degree of movement, and

(b) did not record “DRE estimates” and did not report on the presence or absence of pain, muscle guarding and asymmetric movement (recording only one criterion, viz. muscle spasm).

(ii) Failed to recognise the Assessor’s lack of transparency, breach of procedural fairness and erroneous fact finding in recording that the Plaintiff dressed and undressed without difficulty when in fact he had failed to observe this.

(iii) Took into account considerations beyond those provided for by s63(3).

(iv) Misdirected herself as to the test to be applied as laid down in s63(3) and thereby overreached her statutory task.

(v) If she had applied the proper test, such were the number of obvious errors in Dr Truskett’s Assessment that the Second Defendant had to be satisfied that there was reasonable cause to suspect that the Assessment was incorrect.

21 The third of these submissions was largely withdrawn. To the extent to which it was not it is answered by the decision in Pratap to which I have referred and with which I agree. Accordingly, there is no need for me to further consider that submission.

22 In paragraph 4 of the written submissions advance by Ms Nolan on the Plaintiff’s behalf, it was asserted that the complaint in relation to the assessment related to the lumbar spine. Later paragraphs concentrate attention on this area and during the course of proceedings before me counsel for the Plaintiff reaffirmed that that was her understanding of the complaint although when she was taken to one of the paragraphs of the application for Review that clearly quoted the assessor’s comments in respect of the cervical spine she sought to expand the argument before me. Counsel for the Defendant objected but in light of the clear terms of the Application for Review, it seems to me that I must deal with the matter on the wider basis.

23 Turning to the first principal complaint, it was submitted by Ms Nolan that what was said in the paragraph of Dr Truskett’s remarks that I have numbered (ii) did not constitute findings in relation to asymmetry and amounted to a constructive failure to exercise the function on which Dr Truskett was engaged. She sought support for this approach from the fact that Dr Truskett was fulfilling the role of an administrative decision maker and submitted that the terms of the definition of dysmetria indicated that there needed to be some reproducible finding of particularity and specificity. She submitted that “normal” was an inappropriate word to be used in the exercise of discharge of the doctor’s statutory function.

24 Unsurprisingly, Ms Nolan had no authority to support this latter proposition which is to deny the ordinary use of the English language. Asymmetry would be quite inconsistent with normal movement in the respects to which Dr Truskett adverted and I am satisfied that there was no error in Dr Truskett’s expression of his findings or in the Second Defendant’s conclusions on this topic. Furthermore, although I do not need to rely on the fact, it is not apparent how one can rely Ms Nolan’s submission with the terms of clause 1.42 of the MAA Guidelines.

25 The complaint that Dr Truskett did not report on the presence or absence of pain is answered by a combination of 2 matters. The first and principal matter is the half page account Dr Truskett gave of the Plaintiff’s complaints in that regard. The second lies in the paragraph 1.40 of the MAA Guidelines that I have quoted above.

26 I turn to the complaint that Dr Truskett did not report on the presence or absence of muscle guarding. One of Ms Nolan’s submissions was that regard could not be had in this connection to statements as to clinical matters contained in the paragraphs I have numbered (vi) to (viii) except insofar as these but reproduced matters earlier stated under the heading “Findings on Clinical Examination”. I was not taken to anything in the Act or Guidelines to support this contention and, with all due respect to its author, the submission has only to be stated to be rejected. The law has long since passed that sort of formalism.

27 However, it is the fact that the only express reference Dr Truskett made to muscle guarding was in the paragraph I have numbered (vi), a paragraph devoted to the cervical spine. The question arises whether he was obliged to refer to it when considering the other areas.

28 In this connection it is appropriate to recognise that in respect of none of the cervical, thoracic or lumbar spine did he refer either to there being “no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury of illness” – other aspects of the description of DRE I. And although Dr Truskett had earlier referred to the radiological examinations, he nowhere said that they were conducted in circumstances of “lateral flexion and extension”. It seems to me that ultimately the question boils down to whether an assessor is obliged to refer, either expressly or by necessary implication, to each of the matters necessary to place a claimant in DRE Category I if that is what an assessor concludes.

29 Given the different terminology in the descriptions of other Categories, different considerations may well apply to them but the description in the AMA Guidelines of Category 1 requires the absence of each of 5 distinct matters, viz:-

significant clinical findings,

muscle guarding,

documentable neurological impairment,

significant loss of structural integrity on lateral flexion and extension roentgenograms, and

indication of impairment related to injury or illness.”

30 Clause 4.19 of the MAA Guidelines is not as specific although in its statement that “DRE I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor”, it is equally categorical about the absence of “objective clinical findings”. I do not find it necessary in the circumstances of this case to decide whether a formulation simply in terms of clause 4.19 would be sufficient statement of reasons.

31 Clearly relevant in this connection is clause 4.20 which, at the cost of repetition dictates that, “when allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions”. It must also be recognised that the clause is not printed in bold and thus not a directive as to how the assessment should be performed but given the obligation in an assessor to provide reasons - an obligation that must extend to reasons explaining or justifying the decision - it is difficult to see how an assessor can do so without referring, expressly or by implication, to either the absence of “objective clinical findings” or all of the 5 matters listed in paragraph 29 above.

32 Thus I do not regard Dr Truskett’s Assessment as complying with the obligation, contained in s61(9) of the Act to provide reasons.

33 Consistently with the approach that should have been taken, Dr Truskett also erred in the reasons he gave in the paragraphs I have numbered (vii) and (viii) dealing with the Thoracic and Lumbar Spine. Although muscular spasm may well be a significant clinical finding, the absence of only muscular spasm and neurological deficit does not justify a classification of DRE Category I. The absence of other matters to which Dr Truskett did not refer was also required.

34 Of course, I am not sitting on appeal from Dr Truskett. The matters to which I have just referred are but background to the decision of the Second Defendant and error on the part of Dr Truskett does not necessarily lead to the conclusion that there was any error on the part of the Second Defendant in concluding that she was not “satisfied that there is reasonable cause of suspect that the assessment is incorrect in a material respect” or, more relevantly, that she erred in a way calling for judicial review.

35 However, in the circumstances of this case, I am satisfied that the decision of the Second Defendant was so affected by error that the Court should interfere. In the first place, the Second Defendant’s reasons do not expressly address the fact that in the paragraphs I have numbered (vii) and (viii) above, the assessor states as his reasons for assigning Category 1 to the Thoracic and Lumbar Spine only the finding that there is “no muscle spasm and no neurological deficit” and does not address the other (cumulative) characteristics of that Category. Had any of the other matters to which Dr Truskett did not refer been present, then DRE Category I was at least arguably not appropriate. (I have so expressed the matter because the difference in terminology in the descriptions of DRE I and DRE II is such that it is not obvious that some departure from the requirements of DRE automatically leads to the conclusion that DRE II is appropriate. The matter was not argued, and accordingly it is not appropriate that I say more than that Dr Truskett’s errors in this area were such that they were capable of altering the outcome.)

36 It must be acknowledged that the Second Defendant’s quotation from the assessor’s reasons as “there is no significant clinical findings, no muscle guarding and no documentable neurological impairment” was an appropriate response to the complaint of a failure to mention guarding if and insofar as the complaint related to the cervical spine. The passage provides grounds for thinking that the assessor was unlikely to have neglected consideration of the topic of guarding when dealing with the thoracic and lumbar spines although it is not clear that the Second Defendant appreciated that, of itself, the quotation did not answer the criticism that the assessor did not find that there was no guarding in these other areas (though it may be that that is the proper conclusion in the case of at least part of the spine given the assessor’s references to “normal” in the paragraph I have numbered (v)).

37 The Second Defendant seems also to have regarded Dr Truskett’s reference to “spasm” as an answer to the complaint that he did not refer to “guarding” in relation to the lumbar spine. In this she erred. As the definition of both terms makes clear, they are different concepts and “spasm” is not referred to in the explanation of DRE (at least unless it is encompassed within the expression “significant clinical finding” and if it is, its presence would make Category I inapposite).

38 The Second Defendant was correct in her statement that the assessor “clearly states the lumbar impairment to be DRE Category 1” although it is not apparent what significance she attached to this. Being a statement of the ultimate conclusion, it provides no evidence of the reasons which led to that conclusion unless the inference be drawn that the assessor must, by arriving at it, have found that the characteristics of that Category existed. Such an approach goes a long way to making otiose any addressing of individual characteristics and does not in any event comply with the statutory requirement to set out reasons for any (relevant) matter certified.

39 Ms Nolan relied also on the references in the Second Defendant’s reasons, “there is no error” and “I am not satisfied”. At face value these expressions are departures from the test in s63(3) of the Act which involves the Proper Officer merely being “satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect … .” The statement “there is no error” probably carries with it the implication that the Proper Officer was satisfied there was no reasonable cause to suspect error on the part of the assessor but the statements to the effect “I am not satisfied” clearly do not.

40 It must be acknowledged that, in addition to the passages just quoted the Second Defendant said, both at the beginning and end of her remarks, that she was “not satisfied that there is reasonable cause to suspect that (Dr Truskett’s) assessment is incorrect in a material respect” and it was submitted that whatever infelicities of expression there may have been relating to individual topics, it is clear that she understood and applied the correct ultimate test. There is force in this view but, one may ask, if the Second Defendant did so understand her task, why did she mis-state the test in the passages referred to? It is not sufficient simply to recite the relevant words of s63(3) so to speak as a mantra, but in fact apply a different test as, at least in relation to some matters, the Second Defendant seems to have done.

41 In the result, and despite the references at the beginning and end of her remarks to the test laid down in s63(3), I am satisfied that the Second Defendant in some respects did misdirect herself to the test to be applied. Further demonstration of the Second Defendant’s failure to direct herself properly lies in her failure to recognise the number of errors to which I have referred in Dr Truskett’s assessment. Insofar as a number of these errors relate to the elements necessary to a finding of DRE Category I, they are clearly material.

42 Although it is unnecessary for me to do so, it seems appropriate to say something about the second challenge listed above. Dr Truskett did not provide any indication as to how he took his stated observation to the effect that the Plaintiff had dressed and undressed without difficulty into account or as to the significance or weight he placed on it. The Plaintiff’s actions if as described accorded with the assessor’s findings on clinical examination so did not have the significance they may otherwise have had if there was inconsistency. If, as the Plaintiff asserted, the assessor did not see her dress or undress, then that activity on her part could have no effect on his assessment.

43 Certainly, a factual error as blatant as, on the Plaintiff’s account the assessor made is, given his position, a matter of considerable concern. However, once regard is had to the definition of “material” in clause 10.11 of the MAA Medical Assessment Guidelines, in the circumstances of this case it is impossible to conclude that the Second Defendant’s conclusion that the matter was not material was not open to her.

44 The final question that arises is the topic of delay. The Plaintiff provided no explanation for the 12 months delay in instituting proceedings in this Court and the Third Defendant submitted that on discretionary grounds, relief should be refused. On the other hand, the Third Defendant provided nothing to persuade me that it was in any significant sense prejudiced by the delay. Upon the basis that there is a community interest in achieving results that are legally correct, I am not disposed to refuse the Plaintiff relief.

45 One question that arises is whether I should grant the Plaintiff relief in the form of the second order it seeks or, in that connection, simply refer the matter back to the Second Defendant for her to properly consider the matter in accordance with these reasons. Having regard to the errors in Dr Truskett’s reasons to which I have referred, it seems to me that the latter course would be an exercise in futility as there is only one proper conclusion at which the Second Defendant could arrive. Accordingly, and subject to the parties ensuring that I have correctly identified the number of the proceedings below – not all documents annexed to affidavits agree - I make the orders set out below.

46 No parties addressed on the topic of costs. I seems to me to be a case where, subject to one matter, costs should follow the event. The one matter arises from the fact that a number of the documents annexed to the first affidavit of the Plaintiff’s solicitor were the wrong ones. The costs on of both parties associated with that error should be borne by the Plaintiff or her solicitor. An appropriate way of dealing with this might well be to order the Defendant to pay a percentage of the Plaintiff’s costs – say 90% but I will give the parties an opportunity of dealing with the topic before making any costs order. If the parties can agree and submit a consent order to my Associate there will be no need for a further appearance. In default of the submission of such an order within 14 days, I will re-list the matter to deal with the question of costs.

47 I order:-

1. Set aside the decision of the Second Defendant dated 11 July 2008 in proceedings 2008/04/0463SC.

Motor Accidents Compensation Act

3. I reserve the question of costs.

**********

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Citations

Crnobrnja v Motor Accidents Authority of NSW [2010] NSWSC 633

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Pratap v Motor Accidents Authority of NSW [2009] NSWSC 1325

CITATION:	CRNOBRNJA v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES [2010] NSWSC 633
HEARING DATE(S):	10 December 2009
JUDGMENT DATE :	17 June 2010
JUDGMENT OF:	Hulme J at 1
DECISION:	1.Set aside the decision of the Second Defendant dated 11 July 2008 in proceedings 2008/04/0463SC. 2.That the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 to refer the Plaintiff’s Application for Further Assessment of a Permanent Stabilisation of a Permanent Impairment Dispute, dated 8 January 2008 being annexure A to the affidavit of Vic Petrovich of 1 September 2009 and numbered 2008/04/0463SC, for further medical assessment according to law. 3. I reserve the question of costs.
PARTIES:	Mirjana Crnobrnja (Plaintiff) Motor Accidents Authority of New South Wales (First Defendant) Josephine Redmond (Second Defendant) AAMI Limited (Third Defendant)
FILE NUMBER(S):	SC 30047/09
COUNSEL:	Ms BK Nolan (Plaintiff) MA Robinson (Third Defendant)
SOLICITORS:	NSW Compensation Lawyers I V Knight Crown Solicitor Moray & Agnew