Nithiananthan v Davenport

[2006] NSWDC 105

CITATION:	Nithiananthan v Davenport [2006] NSWDC 105
HEARING DATE(S):	12/09/06
JUDGMENT DATE:	12 September 2006
JUDGMENT OF:	Phegan DCJ
DECISION:	Certificate required under s 61(4) of the Act - assessment to be undertaken by the Court under s 61(6).
CATCHWORDS:	medical assessment - procedural fairness - substantial injustice
LEGISLATION CITED:	The Motor Accidents Compensation Act 1999 (NSW)
CASES CITED:	The Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367
PARTIES:	Vijayaranjani Nithiananthan v Donna Davenport
FILE NUMBER(S):	4883/05
COUNSEL:	Plaintiff: B Toomey QC; L Csillag Defendant:I Roberts SC; G Bellew
SOLICITORS:	Plaintiff: Bellisimo & Associates (Solicitors) Defendant: Sparke Helmore Lawyers

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1 HIS HONOUR: This is an interlocutory judgment in which the plaintiff has sought an order under s 61(4) of The Motor Accidents Compensation Act 1999 (NSW) that the certificate provided by Dr Kaplan dated 2 August 2006 be rejected on the grounds of denial of procedural fairness. The relevant section reads as follows:

“In any court proceedings the Court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the Court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party”.

2 Before proceeding to deal with the basis on which it is sought to have the relevant certificate rejected under that section I will turn very briefly to the facts insofar as they have a bearing on this application. The plaintiff was injured in a motor vehicle accident on 2 December 1999. A car driven by the plaintiff’s husband had been stationary at an intersection awaiting the relevant signal to make a left hand turn when it was struck in the rear by the defendant’s vehicle which appears to have been driven by the person who subsequently became involved in events that I will describe in a moment. The defendant’s vehicle, having struck the rear of the vehicle in which the plaintiff was seated with her daughter in the back seat of the vehicle, then reversed and for a second time ran into the vehicle driven by the plaintiff’s husband. The person who appears to have been the driver of the defendant’s vehicle, who is described as having a “menacing appearance”, then left the vehicle in what appears to have been a particularly threatening manner and argued with the plaintiff’s husband about whether the plaintiff’s husband should call the police. He attempted to dissuade the plaintiff’s husband from calling the police although the police were called. In the course of this altercation, because of the particularly menacing behaviour of the person from the other vehicle, the plaintiff finally left the immediate scene of the accident with her daughter out of self protection. She was in fear for both herself and her daughter as well as her husband.

3 Liability arising out of these circumstances has, not surprisingly, been admitted and the issue between the parties has therefore been confined to one of damages, more particularly to damages based on psychiatric injury. There is evidence of some soft tissue injury but the major part of the plaintiff’s claim, as I understand it, is for psychiatric injury in the form of a chronic depressive condition from which the plaintiff continues to suffer.

4 One other matter which takes on some particular relevance in the history of the case as will become apparent in due course is that the plaintiff gave birth to her second child, a son, on 24 October 2001, that is a little short of two years after the motor vehicle accident.

5 In 2002 the plaintiff underwent a motor accident assessment by Dr Prior, a psychiatrist, and on the basis of her psychiatric injury, was certified as having a thirty per cent whole person impairment in a report prepared by Dr Prior in January 2003. Concern about what caused the onset of depression was raised in the first of a series of reports prepared by Dr Walden, qualified by the defendant for the purpose of preparing psychiatric reports in these proceedings. In the first of her reports in June 2004, Dr Walden expressed an opinion that the principal cause, and in some respects the sole cause, of the ongoing depressive condition of the plaintiff was post natal depression brought on by the birth of her son in October 2001 and not the motor vehicle accident. Because of that opinion Dr Prior was called upon to make a further assessment in 2004 in which he confirmed his original opinion that the whole of the condition of depression from which the plaintiff continued to suffer was attributable to the motor vehicle accident. He made a minor adjustment to the whole person impairment from thirty to thirty one per cent. It was in August 2006 that Dr Kaplan was instructed to make a further assessment and it is that assessment which is the subject of this application. In Dr Kaplan’s certificate he certified that there were two unconnected psychiatric conditions from which the plaintiff had suffered at some time after the motor vehicle accident. The first was an adjustment disorder attributable to the motor vehicle accident itself, the second a condition of diagnosable depression in the form of a major depressive disorder which Dr Kaplan primarily attributed, in essentially the same way as Dr Walden had done, to post natal depression, unconnected with the motor vehicle accident.

6 One of the difficulties with the form of Dr Kaplan’s certificate lies in the fact that, although he diagnosed a condition of adjustment disorder which he attributed solely to the motor vehicle accident, there was no apparent attribution of any percentage of whole person impairment to that condition. I will try to explain this by reading from page 9 of Dr Kaplan’s report:

“After due consideration of the history, examination and information provided in the documentation, the finding is that Mrs Nithiananthan had an adjustment disorder with anxiety, a major depressive order. The adjustment disorder was caused by the accident and the MDD can be attributed twenty five per cent to the accident and seventy five per cent to other causes.”

7 He then applied that division of twenty five per cent and seventy five per cent to a whole person impairment of twenty four per cent and attributed twenty five per cent of that twenty four per cent, that is six per cent, to the motor vehicle accident. That calculation put the figure short of the threshold of ten per cent for recovery of non-economic loss under s 13 of the Act.

8 The defendant, or more appropriately in the context of this application, the third party motor vehicle insurer, does not dispute that the certificate is defective in its failure to give proper account to the contribution of the adjustment disorder with anxiety to the assessment of the whole person impairment. In that respect there does need to be a reconsideration by Dr Kaplan or another appropriate person or persons in order to properly address that oversight. Although I describe it as an “oversight” there are two ways of interpreting the report. First, Dr Kaplan did have in mind, although he does not put it in these terms, that there was an overall whole person impairment of twenty four per cent and that he intended to include in that the adjustment disorder although he does not couch his certificate in those terms. Alternatively, as I have suggested, the report can be read as failing to attribute an appropriate percentage of whole person impairment to the adjustment disorder which would have the effect of increasing, by some uncertain amount, the whole person impairment calculation. Such increase may take it above the threshold but that is a matter of speculation in view of the ambiguity in the report itself.

9 As I have indicated the third party insurer does not take issue with that and concedes that the matter does need to be addressed either under s 62 or s 63 of the Act, that is, the matter should be referred for further assessment under s 62 or for review of the assessment by Dr Kaplan by a review panel under s 63. As I understand it, one of those alternatives not only not opposed by the third party insurer but is in substance requested as an appropriate mechanism for rectifying the certificate. That is a matter which may need to be further considered depending upon the resolution of the plaintiff’s application. If the plaintiff’s application is successful, that will remove the need for any consideration of either reassessment or review of Dr Kaplan’s certificate. I will return to s 62 and s 63 in due course if it proves to be necessary. I will now address the application under s 61(4).

10 The case put on behalf of the plaintiff is that the report and the resulting certificate falls short of the requirements of procedural fairness. First, the report failed to follow the Permanent Impairment Guidelines prepared by the Motor Accidents Authority, secondly there was a failure on the part of the author of the certificate to give adequate reasons for the assessment and thirdly there was a failure to have regard to the materials provided to Dr Kaplan for the purpose of preparing the certificate. In one or more of these respects the report fails to meet the requirements of s 61(4).

11 With regard to compliance with the Permanent Impairment Guidelines, there was particular reliance placed on Guideline 1.33 which provides:

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored.”

12 In general terms the submission made on behalf of the plaintiff was that there was a demonstrable failure in the body of Dr Kaplan’s report to adequately address the task which is spelt out in 1.33. However, the difficulty for the plaintiff which was identified by counsel for the defendant third party insurer was that, on its face, Guideline 1.33 appears to be directed to cases of physical injury and not psychiatric impairment. If that is the case then there is little assistance to be gained from looking at the specific requirements of that guideline. That submission is reinforced by the fact that another part of the same guidelines, Chapter 7, is explicitly directed to what are described as “mental and behavioural disorders” impairment. It was the defendant’s submission that it is in Chapter 7 that the relevant guidelines are to be found, insofar as they bear on of Dr Kaplan’s report. 7.18 reads:

“In order to measure impairment caused by a specific event, the assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or condition, estimate the overall pre-existing impairment using precisely the method set out in this chapter, and subtract this value from the current impairment rating”.

13 It was submitted that in contrast to the guidelines directed to physical injury there is no explicit reference to the sequence of events which occurred in this case. 7.18 refers to a “pre-existing diagnosis”, that is a diagnosis pre-existing the event which is the subject of the assessment but not the reverse and therefore the proper interpretation of the chapter insofar as it applies to psychiatric injury is that it does not address the sequence of events which occurred in this case. While that submission offers a distinct role to the respective provisions with regard to physical and psychiatric injury I cannot accept that there was any intention to make so clear a distinction. It is sufficient to treat 7.18 as of general application irrespective of the order of events. The “pre-existing” condition, in other words, can be understood for the purpose of 7.18 in this case to be the condition caused by the motor vehicle accident and the subsequent condition to be the condition, according to Dr Kaplan’s analysis and diagnosis, caused by the onset of post natal depression. That is a necessary reading of the section in order to give it proper sense. However, that does not entirely overcome the obstacles facing the plaintiff.

14 What I understand Chapter 7 to be primarily directed at is the form of the report and accompanying certificate. That form must address the matters which are enunciated in the course of Chapter 7 and which are put into a formal structure in 7.19. The fact is that Dr Kaplan did adopt the approach required by Chapter 7 and in that sense at least met the requirements of the guidelines. I would therefore be very uncomfortable in reading Chapter 7 sufficiently widely to encompass what are suggested to be the deficiencies in Dr Kaplan’s report which fall short of the guidelines in that particular respect. In my view there is much more substance in the second submission, namely that the report lacks adequate reasons of the sort which are at least implicitly required by the guidelines and which, for the purpose of meeting the requirements of s 61(4), would be a necessary part of the report.

15 As far as the absence of adequate reasons are concerned I begin by making the observation that, while the general approach and the overall diagnosis of Dr Kaplan bears a close resemblance to that of Dr Walden, in other respects his report is in stark contrast to the report of Dr Walden. I mentioned earlier that there are three reports from Dr Walden but the principal and first of them is a report of very considerable length which is then further amplified in the two later reports. The conclusions reached by Dr Walden were supported by reasons and in that sense she provides a standard against which Dr Kaplan’s report can be tested. He does not, in the same way that Dr Walden does, attempt to explain away the absence of any cause or connection between at least the major part of the ongoing psychiatric condition of the plaintiff and the motor vehicle accident. His conclusions are little more mere assertions in the context of his observation, which is a valid one, that there is comparatively little in the way of detailed clinical record and report of the plaintiff’s condition between the date of the motor vehicle accident and the birth of her son. Subsequent to her son’s birth there are more detailed clinical records and expert opinion.

16 The sparseness of clinical history is not of itself a sufficient basis for the conclusions which Dr Kaplan reached and it is in this respect that I am particularly concerned about the inadequacies in his report. The relatively limited record of psychiatric evidence during the two years between the motor accident and the birth of the child is confined to the records and subsequent report of Dr St George, who was the treating psychiatrist of the plaintiff at the time. Dr St George diagnosed post traumatic stress disorder. I should add his report is now part of the medical evidence on which the plaintiff relies (Exhibit A).

17 It was, as Dr Kaplan correctly observed, only after the birth of the child that Dr St George first explicitly addressed the onset of any condition diagnosed as depression. However, Dr Kaplan also acknowledged that depression can be a consequence of, and associated with, post traumatic stress disorder. However, having acknowledged that, Dr Kaplan simply asserted that in this case there was no such connection. The difficulty apparent in the records and report of Dr St George is that he did not at the time appear to have explored any separate condition of depression as long as the symptoms of post traumatic stress disorder were both conspicuous and sufficient for the purpose of a psychiatric diagnosis following the motor accident. I acknowledge Dr Kaplan’s observations that the psychiatric evidence at the crucial time is sparse but that raises a particular need for a search for additional evidence which may assist retrospectively in diagnosing the plaintiff’s condition at that time. In my view that is where Dr Kaplan conspicuously failed.

18 His report referred more than once to the problems of the marriage between the plaintiff and her husband, which he discerned from both the history which he had read and from some observations of the plaintiff and her husband at the time of his examination of the plaintiff. He elevated that matter to a level of importance which I am unable to find in any of the other psychiatrist’s reports on both sides of the record. His decision to give such importance to the state of the plaintiff’s marriage remained unexplained.

19 Dr Kaplan appeared to assume that the breakdown in the marital relationship was a separate cause of the onset of the plaintiff’s depression, although he does not actually put it in those terms. His repeated reference to it supports the view that he did accept it as an important factor, but more significantly for the purpose of this application, he puts it forward as a reason for the plaintiff’s apparent lack of frankness with him in the course of his examination. Her husband was present and Dr Kaplan concluded that she was reluctant to be open about problems which had been caused by their relationship. The result was that Dr Kaplan obtained very little from the plaintiff about the symptoms which she had manifested during the period following the motor accident. He was thus unable to tap one principal source of relevant history over and above the very limited clinical records.

20 I acknowledge, consistent with Dr Kaplan’s view, that what the plaintiff had to say in such circumstances would need to be treated with some reservation. There were also observations about the difficulties in this respect in Dr Walden’s reports where she referred to the problem of retrospective history which had been overlaid by the onset, for example, of a depressive condition. It is possible that such a condition did not exist at the relevant time and is now seen in hindsight through the screen of the plaintiff’s present psychiatric condition.

21 I acknowledge those difficulties, but once again Dr Walden’s report is far more explicit and far more reasoned in addressing them than Dr Kaplan’s. If he thought that the presence of the husband was an embarrassment, he failed to explain why he did not interview the plaintiff in her husband’s absence. That is something which Dr Walden did for approximately one hour. According to her report, on the occasion she examined the plaintiff she was accompanied by her husband and her then two and a half year old son. However, they left the interview room after the first twenty five minutes and returned approximately one hour later. Dr Walden therefore had the benefit of an hour’s interview with the plaintiff in the absence of any other person who might have imposed some constraint on the plaintiff’s readiness to be frank about her circumstances. That comparison in indicative of what can only be described as the cursory character of Dr Kaplan’s examination.

22 The certificate of Dr Kaplan came at a very late stage prior to hearing, in fact well after the matter had been set down for hearing and long after Dr Walden’s report first alerted the defendant to the possibilities of a kind which were ultimately regarded by both Dr Walden and Dr Kaplan as having a significant impact on the whole person impairment. The fact that the certificate came very late and close to the hearing only underlines the importance of ensuring that the requirements of procedural fairness under s 61(4) were met. Once that certificate was issued it became the definitive assessment and was therefore likely to have a decisive influence on the outcome of these proceedings.

23 In those circumstances I am satisfied that procedural fairness was lacking in the report and certificate of Dr Kaplan. In reaching that conclusion I have taken into account the language of the section which refers both to denial of procedural fairness as the essential criterion upon which matters under that section are to be determined and also the need, before the section is applied, for the Court to be satisfied that the admission of the certificate would cause substantial injustice to the plaintiff. The reference to denial of procedural fairness and to the risk of substantial injustice make it clear that there is an obligation on the author of the certificate to act judicially. Therefore, the considerations which were addressed in the judgment of Deane J in the High Court decision in The Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 apply in this case. I refer in particular to the following passage from that page of the judgment.

“…the duty to act judicially requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion.”

24 In my view there are reasons to conclude that the report and certificate of Dr Kaplan fail in a number of respects to measure up to those criteria and in those circumstances I am satisfied that this is a case in which the admission of the certificate would cause substantial injustice to the plaintiff. In those circumstances therefore I reject the certificate under s 61(4).

25 I will now deal with what happens as a consequence of that ruling. First of all it follows from what I said earlier that having found in the plaintiff’s favour it is not necessary to consider the alternative solutions offered by the defendant. The question now remains, however, where the matter goes from here. I am entitled under s 61(6), where a decision has been made under (4), to substitute a determination of the Court on the degree of permanent impairment of the injured person instead of referring the matter again for assessment.

26 I have given careful consideration to all of the prospective medical evidence in this case. In my view it is a case where paradoxically, but perhaps predictably, the certificates provided, and I am now referring back to those of Dr Prior as well as that of Dr Kaplan, have done little to add to what was said in substance in the reports of treating doctors and of doctors who were engaged by one or other of the parties for the purpose of these proceedings. Those reports, both comprehensively and, in my view, adequately, address the issues that bear upon the ultimate assessment that has to be made and therefore the matter can safely proceed on the basis of what is said in those reports.

27 For the purpose of assessment of permanent impairment in percentage terms, I note that, notwithstanding the fundamental difference between Dr Walden and the experts on whom the plaintiff relies on the question of causation, she adopted a whole person impairment of thirty one per cent which happens to correspond to the ultimate assessment made by Dr Prior in the second of his certificates. In those circumstances I am not troubled by the fact that I should not be relying Dr Prior’s certificate. The defendant’s own expert has, independently, set the benchmark from which the calculation can be made, depending upon the crucial issue of causation which in my view is a matter that can also be adequately resolved on the basis of the expert opinions contained in the reports. There is an explicit debate between Dr Walden and the plaintiff’s current treating psychiatrist, Dr Clark, on that very question. I do not, in coming to a conclusion, welcome the task of having to resolve the differences between those experts but they have been articulated sufficiently to provide a foundation for a properly informed decision to be made. In those circumstances I am satisfied that the matter should proceed and that the Court should undertake the task, difficult as it is, of making the ultimate assessment, taking account of the fundamental difference between the parties on the question of causation.

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