Mamae v McCulloch Bulk Haulage Pty Ltd

[2015] NSWDC 281

District Court

New South Wales

Medium Neutral Citation:	Mamae v McCulloch Bulk Haulage Pty Ltd [2015] NSWDC 281
Hearing dates:	20 November 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Civil
Before:	Sidis ADCJ
Decision:	(1) The matter is referred to the Motor Accidents Authority of New South Wales for further medical assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999. (2)   The defendants are to pay the plaintiff’s costs of the Motion. (3)   My reasons are published. (4)   The exhibits and affidavits are returned.
Catchwords:	Motor vehicle accident; referral for further medical assessment; principles; errors and inaccuracies in Review Panel’s report; material effect on outcome of previous assessment.
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287; Bouveng v Bolton [2009] NSWDC 19
Category:	Principal judgment
Parties:	Pearl Peara Mamae (Plaintiff) McCulloch Bulk Haulage Pty Ltd (First Defendant) Campbell Scott McDougall (Second Defendant)
Representation:	Counsel: Mr Canceri (Plaintiff) Mr Cullen (First and Second Defendants)   Solicitors: CMC Lawyers (Plaintiff) Hall & Wilcox (First and Second Defendants)
File Number(s):	2015/185648
Publication restriction:	None

Judgment

1. The plaintiff claimed under the Motor Accidents Compensation Act 1999 for nervous shock consequent upon the death of her son, Steven, in a motor vehicle accident on 12 May 2009.

2. The determination of her claim for non-economic loss has proved problematic. In the absence of agreement between the parties, as required by the Act, the Motor Accidents Authority referred the issue of whether her level of whole person impairment met the 10% threshold to the Medical Assessment Service. To date the issue has been considered by two medical assessors and a Review Panel with assessments of 5%, 18%, 24% and 6% respectively.

3. The plaintiff applied to the court for an order under s 62 of the Act referring the matter for further medical assessment. The section provides:

62 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

(b) by a court or claims assessor.

(1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.

(1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority" ).

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

4. The preconditions to further referral by a party do not apply to the court’s consideration of whether further referral is appropriate. However, in Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 Handley AJA said:

[111]   In any event I am unable, with respect to discern any error in the assessor’s view that there was no risk of injustice to the claimant unless there was a ‘reasonable prospect that the further assessment will result in a change in outcome’.

5. The defendant drew my attention to my own reasons in Bouveng v Bolton [2009] NSWDC 19 where I said:

[13]   This principle necessarily involves a requirement to satisfy the court that further referral is likely to produce a different outcome of some substance. I do not consider that it would be sufficient for a party to rely, for instance, only upon an opinion of a medical expert that differed from that of a medical assessor.

6. I also noted in Bouveng that the discretion available to the court was to be exercised having regard to the objects of the Act which placed clear emphasis on limiting the rights to recover compensation and maintaining affordable premiums for motor vehicle insurance.

7. Having regard to these principles, I approached the issues in this matter on the basis that I should be satisfied that the plaintiff’s rights to compensation under the Act would be seriously prejudiced if the matter were not referred for further review.

8. The plaintiff put before the court for the purposes of the application her affidavit of 20 October 2015 in which she listed a number of criticisms of the report of the Review Panel dated 12 February 2015 as well as recent reports of Dr Jungfer and Dr Diamond.

9. The members of the Panel were Drs Apler, Dennerstein and Virgona. For the purposes of the review the plaintiff was examined by Drs Apler and Virgona on 4 February 2015. The Panel diagnosed, as a consequence of the motor accident: Persistent Complex Bereavement Disorder and Substance Disorder in Partial Remission.

10. The plaintiff claimed that there were significant discrepancies and inaccuracies in the Panel’s report concerning the information she provided at the time of examination. I considered that some of the matters raised, although clearly of significance to the plaintiff, were of limited relevance to the assessment, although they were indicative of a lack of care and attention to detail in the preparation of the report. These were matters that went to the discussion of the claim brought by the plaintiff’s husband, whether he accompanied her to the venue for the examination, the use of the plaintiff’s redundancy payment and the age at which her son Steven came into her care.

11. I considered it extraordinary that on page 6 of the report two paragraphs were included that had nothing to do with the plaintiff. They in fact related to another claimant. This considerably undermined my confidence in the care and attention paid to the task delegated to the Panel.

12. More significant to the plaintiff were her claims of inaccuracy and misreporting in the following respects:

1. Her capacity for management of finances, paperwork and her property, the assessment of which was largely unexplained.

2. Her alcohol consumption, the assessment of which appeared to have been based upon reports of improvement whilst Dr Herrera treated the plaintiff alcohol abuse. This treatment, as was recorded in the material made available to the Panel, ceased in November 2013 when funds for further treatment were not made available. The parties disagreed about the circumstances in which funding ceased but there was no dispute that funding was discontinued in November 2013. The plaintiff denied that she continued to take Campral, a medication for the treatment of alcoholism. She denied that she told the Panel that she drank 3 stubbies of beer per day, that she did not drink when it was raining or that she had any alcohol free days. She stated that she told the Panel she drank between three and six stubbies and a bottle of wine every day.

3. The plaintiff noted that the Panel did not record her complaint of flashbacks that occurred daily, on some days on multiple occasions.

4. She denied that she told the Panel that she had no trouble driving. She claimed that she suffered significant anxiety when driving near trucks and that she avoided travelling on expressways.

5. The plaintiff absolutely denied that she told the Panel that she attended her local RSL club regularly on Saturdays or that she looked forward to Saturdays. She stated that, at the time of the interview, she had attended on one occasion only to buy hot chips and that she ate them outside the club premises.

6. She took issue with the summaries contained in the Categories of the Psychiatric Impairment Rating Scale (PIRS), in particular Category 1 where her infrequent bathing was attributed to her lifestyle. The plaintiff claimed that prior to her son’s death she bathed daily and took an interest in her appearance. Since the accident, she claimed, she bathed infrequently because she lacked motivation and interest in her appearance. She denied that her weight was stable, stating that she eats, at most one meal per day, and on some days eats nothing.

13. The defendant contended that there would be little prospect of a change in outcome if the matter were referred for further review. In support of this proposition the defendant relied on three aspects of the evidence.

14. In respect of the plaintiff’s capacity for social interaction, the defendant questioned the regularity with which the plaintiff attended the local RSL Club. Exhibit 1 comprised the documents produced by the Club. The defendant relied on them as evidence that the plaintiff understated the frequency with which she attended the Club. I was not persuaded that they did. The most that could be made of the plaintiff’s evidence concerning the Club’s connection to her social activity was her concession that she drove to the Club with her husband on occasion to allow him to place bets at the TAB outlet operated there.

15. That the proposer and seconder of her membership application of October 2014 stated that they had known the plaintiff for three months added nothing to the question of how often she went to the Club. The records show that the plaintiff purchased alcohol from the Club on one occasion only prior to her examination by the Review Panel on 4 February 2015 and on two occasions since that date.

16. The defendant pointed out that the plaintiff worked full time until her redundancy in December 2012. The plaintiff said she did so with difficulty, deteriorating performance and capacity and with many sick leave absences.

17. I acknowledge that the employment records attached to the affidavit of Mr Kennedy dated 2 November 2015 revealed little by way of disciplinary action. The papers did not contain an up to date record of sick leave and work absences and therefore it was not possible for the court or the Review Panel to conclude that the plaintiff’s employment continued without interruption except for the 16 days of leave taken immediately after the accident.

18. I did not accept the defendant’s contention that those records contained no indication that the plaintiff failed to secure alternative employment because of poor performance. At page 118 of the bundle is the assessment of the plaintiff’s application dated 24 May 2011 for the position of Transit Team Leader. This document recorded that the plaintiff was deficient in leadership, people management, organisational ability, customer service, experience and conflict resolution skills.

19. I also acknowledge the evidence of the moderate improvement in the plaintiff’s relationship with her daughters. This was addressed in Dr Diamond’s report where he changed his assessment of her whole person impairment from 24% to 22%.

20. The defendant also questioned the extent to which the plaintiff voluntarily withdrew from treatment for alcohol abuse, either through Dr Herrera or her general practitioner. Virtually all of the medical practitioners who reported on the plaintiff’s post injury condition accepted that her alcohol abuse was a consequence of the loss of her son. I did not accept therefore that this was a matter to be taken into account in determining the extent to which the alcoholism affected the level of the plaintiff’s whole person impairment. I concluded that this issue could go only to mitigation.

21. It was clear that the inaccuracies in the report concerning the plaintiff’s intake of alcohol led the Panel to conclude that Substance Abuse Disorder was in partial remission, a conclusion that, on the evidence of the plaintiff and the preponderance of the opinions of the medical experts, must be very seriously open to doubt.

22. In summary, even if I were to set aside the differing opinions of Dr Jungfer and Dr Diamond, I concluded that the deficiencies in the report of the Review Panel were of such significance that there was a sufficient prospect of a change of outcome to warrant referral for a further review.

ORDERS

23. My orders in this matter are:

1. The matter is referred to the Motor Accidents Authority of New South Wales for further medical assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999.

2. The defendants are to pay the plaintiff’s costs of the Motion.

3. My reasons are published.

4. The exhibits and affidavits are returned.

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Decision last updated: 02 December 2015