Farache v Motor Accident Authority of NSW

[2011] NSWSC 446

Supreme Court

New South Wales

Medium Neutral Citation:	Farache v Motor Accident Authority of NSW [2011] NSWSC 446
Hearing dates:	27 April 2011
Decision date:	20 May 2011
Jurisdiction:	Common Law - Administrative Law
Before:	Hislop J
Decision:	Summons dismissed. The plaintiff to pay the defendants' costs of the summons.
Catchwords:	Common law - Administrative law - motor accident - medical assessment - referral to review panel - no error.
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Meeuwissen v Boden [2010] NSWCA 253, (2010) 56 MVR 453
Category:	Principal judgment
Parties:	Mahassen Farache (Plaintiff) Motor Accident Authority of NSW (1st Defendant) Josephine Redmond (2nd Defendant) Zurich Australia Insurance Limited (3rd Defendant)
Representation:	D. Stanton (Plaintiff) Submitting appearance (1st & 2nd Defendants) K. Rewell SC (3rd Defendant) Sanford Legal (Plaintiff) Crown Solicitor (1st & 2nd Defendants) Curwoods Lawyers (3rd Defendant)
File Number(s):	2010/291348

Judgment

Introduction

1. The plaintiff, by summons filed on 1 September 2010, sought the following orders:

"1. An order in the nature of certiorari setting aside the decision of the Second Defendant, an officer of the First Defendant, dated 1 June 2010 on the basis the decision was vitiated by:

i. Jurisdictional error and was beyond power.

ii. An error on the face of the record,

2. An order that the decision of the First Defendant dated 17 June 2010 following the decision of the Second Defendant referred to in (1) above be quashed.

3. An order in the nature of mandamus, or alternatively, an order pursuant to s65 of the Supreme Court Act 1970 (NSW) that the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 (the Act) to refuse the application made by the Third Defendant.

4. An order that the Third Defendant pay the Plaintiff's costs of these proceedings."

1. The third defendant opposed the application. The first and second defendants filed submitting appearances, save as to costs.

Background

1. The plaintiff was born in March 1979. She sustained injuries in a motor vehicle accident on 14 January 2008. She claimed damages for her injuries. The third defendant was the compulsory third party insurer of the driver of the vehicle at fault. It accepted liability.

1. A medical dispute arose between the plaintiff and the third defendant as to whether the plaintiff had sustained permanent whole person impairment in the accident which was "greater than ten percent".

1. The plaintiff sought the resolution of that dispute by making an application for referral of the dispute to a medical assessor pursuant to Pt 3.4 of the Act. The plaintiff alleged injuries to her neck, back and right shoulder in the accident. The third defendant, in its reply, identified the areas in dispute as:

"Neck - degree of impairment and causation, lumbar spine - degree of impairment and causation, right shoulder - degree of impairment."

1. The medical assessor to whom the dispute was referred issued a certificate of assessment under Pt 3.4 of the Act dated 26 March 2010. He certified:

"The following injuries caused by the motor accident give rise to a permanent impairment which, in total, is greater than ten percent:

• Right shoulder - traumatic adhesive capsulitis/mild acromioclavicular strain
• Neck - C5/6 Disc bulge/soft tissue injury."

He concluded that the alleged back injury was not caused by the motor accident.

1. The third defendant was dissatisfied with the medical assessor's conclusion and lodged an application for review pursuant to s 63 of the Act. The plaintiff opposed the application.

1. On 1 June 2010 the proper officer of the Authority arranged for the application to be referred to a review panel.

1. The review panel to which the application was referred concluded:

"The Panel revokes the certificate dated 26 March 2010 and issues a new certificate determining that:

The following injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than ten percent:

• Neck - soft tissue injury"

1. The review panel found that the accident was the cause of the injury to the plaintiff's neck and the right shoulder but was not the cause of the back injury. It concluded the neck injury gave rise to permanent impairment but that the injury to the right shoulder had resolved without causing permanent whole person impairment.

1. It is the decision of the proper officer which is the subject of the plaintiff's challenge.

Determination

1. Section 63 of the Motor Accidents Compensation Act 1999 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) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(2A) ...

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 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.

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) ...

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

(7) ..."

1. In Meeuwissen v Boden [2010] NSWCA 253; (2010) 56 MVR 453 the Court of Appeal held:

" [18] The phrase 'in a material respect' is imprecise. It undoubtedly can mean that 'the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353 (Mason CJ). On the other hand, it can refer to the process by which the outcome was achieved. The latter approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome. There are various considerations in s 63 which suggest that the latter view is to be preferred.

[22] ...the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that 'there is reasonable cause to suspect' that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error.

[23] ...The power under s 63 is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred."

1. The third defendant in its application for review provided the following reasons for review:

" Relevant page/paragraph of MAS certificate

Page 3, History of the Motor Accident

What is the error or mistake?

Page 3 - The Insurer respectfully submits the Assessor has not complied with MAA Guideline 4.10, page 23, 'to provide a comprehensive, accurate history'. Specifically, the history of presentation at hospital and subsequent attendance to Dr Hong reference only an injury to the right shoulder.

Furthermore, the alleged cervical and lumbar spine injuries reported under History of the Motor Accident do not match the sites identified under Review of Documentation - specifically the ambulance report notes that 'the patient denies LOC, neck pain & spinal pain'. This is restated in the hospital records.

The first report of alleged neck pain was four months post-report [sic post-accident]. On the basis of all points raised, there is a material error in accepting that the C5/6 disc bulge was caused by the subject motor vehicle accident."

Relevant considerations

1. The plaintiff was conveyed by ambulance from the accident scene to Hornsby and Ku-ring-gai Hospital. The ambulance report recorded "...Pt denies LOC, neck pain and spinal pain." It noted a complaint of right shoulder pain.

1. The hospital notes recorded that the plaintiff complained of right shoulder pain and tingling in the right arm. There was no record of any injury or complaint of pain in the neck. It also noted "LOC and neck pain denied".

1. The plaintiff attended the practice of Drs Henry and Grace Hong. Dr Henry Hong's report dated 9 September 2008 contained the following:

"4. Initial complaints and symptoms and your subsequent diagnosis. Is the injury consistent with the motor vehicle accident?

On 19/1/08, Mrs Farache presented to this practice post motor vehicle accident on 14/1/2008, complaining of right shoulder pain, occipital headache, worried, unable to eat or drink, insomnia. Dr Kailainathan's impression was mild right acromioclavicular joint injury...Subsequently I saw Mrs Farache on 14/2/2008 regarding other gynaecological complaints mainly, then she was still experiencing insomnia, headache relating to car accident. Her symptoms are consistent with post motor vehicle accident - post closed head injury - post concussive syndrome."

1. Dr Grace Hong, on 11 December 2008, reported:

"On 27/05/2008 complained of a stiff neck and painful right shoulder."

1. The third defendant qualified Dr Menogue. Dr Menogue, had regard to the contemporaneous evidence, and concluded:

"There is no evidence whatsoever to support a primary and isolated injury to her cervical or lumbar spine in the subject accident. There is no evidence to link causation of any lumbar or cervical spine injury with the subject accident."

1. The plaintiff was referred to Dr Habib. He recorded a history that she had neck and right shoulder pain which was checked in the hospital. The plaintiff was also referred to Dr O'Neill, who obtained a history that

"she herself was seen in hospital at that time [ie following the motor accident] and was told that her x-rays were all right and she was put into a sling for her right arm for two weeks. I understand she felt quite well for a few months following this but then developed pain in the right side of her neck and right shoulder."

Doctors Habib and O'Neill appear to have assumed, without discussion, that the plaintiff's neck injury was causally related to the motor accident.

1. All of the above reports and records were before the medical assessor when considering the matter.

1. The medical assessor, in the reasons attached to his certificate, recited a history obtained from the plaintiff that:

"She was wearing a seatbelt at the time and sustained neck strain injury together with a seatbelt injury to her right shoulder. There was no head injury against the glass window of the car and she was not knocked unconscious... She was taken by ambulance to Hornsby Hospital, where she complained of right shoulder pain."

1. In his reasons the medical assessor, under the heading "Review of documentation", quoted from the hospital records and the reports of Dr Hong and Menogue. He did not refer to the ambulance records.

1. The medical assessor, in his reasons, made no express reference to any issue of causation in respect of the neck. His reference to the documents referred to in the preceding paragraph excluded any reference to those parts of the documents which bore upon the question of causation and he did not refer to the ambulance records. He did conclude that the back injury was not caused by the motor accident but gave no reasons for that conclusion.

The proper officer's determination

1. The proper officer, in determining the s 63(3) application, recorded the issue as follows:

"Issues in Dispute

5. The applicant submits that the medical assessment is incorrect in the following respect:

• Causation of the cervical spine"

1. After a consideration of the contentions of the parties, the proper officer concluded:

"11. I note that the AMA 4 states on page 317 that

Documentation of 'aggravation' or 'causation' will depend in large measure on the acquisition, review and analysis of existing office and hospital records dating from the onset of the condition and including the initial evaluation for the condition .' (my emphasis)

This supports reliance on evidence contemporaneous with the accident, and the applicant notes the first mention of neck pain is four months after the accident.

12. In the absence of any clear explanation by the Assessor as to how he formed his conclusions in relation to causation of claimant's cervical spine injury, I am satisfied that there is reasonable cause to suspect that the assessment may be incorrect in a material respect.

13. I note the respondent suggests consideration of causation as to the lumbar spine injury suggests the Assessor has complied with the MAA Guidelines in relation to addressing causation to the cervical spine injury. However, I note that although the Assessor finds the lumbar spine injury not causally related to the motor accident, he does not provide reasons to reflect the consideration behind this determination.

CONCLUSION

14. Accordingly, as to this review application, I am satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect."

1. I note the proper officer in paras [12] and [14] uses the expressions "assessment may be incorrect in a material respect" and "is incorrect in a material respect" interchangeably whereas the Act states "was incorrect in a material respect". However, no point was taken by the plaintiff in this regard.

Submissions

1. Plaintiff's counsel was in some doubt as to the third defendant's reasons for review. He interpreted the third defendant's reasons for review as asserting that the relevant error was the failure of the medical assessor to comply with guideline 4.10 to provide a comprehensive accurate history, raising the question of the causation of the neck injury and perhaps alleging a failure to provide reasons (which was not particularised).

1. Senior counsel for the third defendant informed the Court that this interpretation involved a misunderstanding by plaintiff's counsel and that the third defendant's allegation was that the material respect in which the assessment was incorrect was error as to the causation of the alleged neck injury, and it was on that basis that the review had been granted by the proper officer.

1. The third defendant submitted, in essence, that there was such a lack of contemporaneous evidence of a neck injury or neck pain that there had to be a very large question over causation. However, the assessor simply stated that some injuries were caused by the motor accident and one was not. There was no analysis of causation at all. Nor was there any mention in any part of the reasons of the absence of a contemporaneous record of neck pain. The medical assessor did not explain at all how he overcame the issue of causation. It is not apparent if he considered that question at all or simply ignored or overlooked it. A low threshold is created by the section. The proper officer was not in error in arranging for the application for review to be referred to the review panel.

1. The plaintiff submitted, in essence, that there was no material error disclosed in the Medical Assessment Certificate in the terms of the proper application of the guidelines. The guidelines made it abundantly clear that addressing the issue of causation was a matter for the medical assessor to undertake. The medical assessor had found that the neck injury was caused by the motor accident. There was no reason to suspect the medical assessor had failed to properly consider and determine the question of causation. Causation was an issue expressly referred for his determination by the third defendant, he had obtained a history from the plaintiff which included complaints of occipital headache, he had reviewed radiological evidence, examined the plaintiff and had read relevant reports and records, some of which he had quoted from. He had rejected the claim of injury to the back on the grounds of a lack of causation. The third defendant was really just cavilling with the assessor's determination on the issue of causation. The application should have been refused.

Conclusion

1. The question of causation of the neck injury was a significant issue in the medical contest between the parties. It was clearly raised in the initial application to the medical assessor and in the Application for Review. The absence of any reference to neck pain or neck injury prior to the reference in Dr Grace Hong's report coupled with the denial of injury to that area to the ambulance officers and to the hospital staff prima facie provided strong evidence that the neck condition was not caused by the motor accident, particularly having regard to the significance placed upon these considerations by AMA 4. The failure of the medical assessor to include in his prcis of the documents before him any reference to causation aspects of the neck injury or the ambulance records and his failure to make any analysis of the question of causation in respect of the neck injury in his conclusions or elsewhere in his reasons gives rise to a suspicion that he failed to properly consider, or overlooked considering, the question of causation. In my opinion, in the circumstances it was open to the proper officer to conclude that there was reasonable cause to suspect the medical assessment was incorrect in the material respect alleged.

1. In my opinion, it has not been demonstrated that the proper officer erred in concluding that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

1. Accordingly, the summons should be dismissed with costs.

Orders

1. I make the following orders:

1. Summons dismissed.

2. The plaintiff to pay the defendants' costs of the summons.

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Decision last updated: 20 May 2011