Pham v NRMA Insurance Limited

[2015] NSWSC 1205

Supreme Court

New South Wales

Medium Neutral Citation:

Pham v NRMA Insurance Limited [2015] NSWSC 1205

Hearing dates:

02 June 2015

Date of orders:

26 August 2015

Decision date:

26 August 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The summons filed 12 December 2014 is dismissed.

(2) The plaintiff is to pay the first defendant’s costs on an ordinary basis as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – decision of a medical review panel – determination that consequent psychiatric injuries were not caused by motor vehicle accident - whether review panel applied the correct test for causation – whether review panel misapplied Allianz Australia Insurance Ltd v Gonzales [2013] NSWSC 362

Legislation Cited:

Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

AAI Limited v Motor Accidents Authority of New South Wales [2015] NSWSC 912
Ackling v QBE Insurance (Aust) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881
Allianz Australia Insurance Ltd v Gonzales (2013) 65 MVR 286; [2013] NSWSC 362
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82
Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650
Peet v NRMA Insurance [2015] NSWSC 558
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

Category:

Principal judgment

Parties:

Jenny Pham (Plaintiff)
NRMA Insurance Limited ABN 11000016722 (First Defendant)
Motor Accidents Authority of New South Wales t/a Motor Accidents Authority (Second Defendant)
A Review Panel appointed by the Motor Accidents Authority of New South Wales constituted by Assessors Lewin, Mason and Parsonage (Third Defendant)

Representation:

Counsel:
E Romaniuk SC & E Grotte (Plaintiff)
A Poljak (First Defendant)

Solicitors:
Slater & Gordon (Plaintiff)
Hunt & Hunt Lawyers (First Defendant)
L Armstrong, Crown Solicitor for NSW (Second and Third Defendants)

File Number(s):

2014/365751

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is an application for judicial review of the decision of a medical assessor’s review panel.

2. By summons filed 12 December 2014, the plaintiff seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the certificate and statement of reasons issued by the second defendant on 30 June 2014 and constituted by the third defendant is void and of no effect.

3. The plaintiff is Jenny Pham (“Ms Pham”). The first defendant is NRMA Insurance Limited (“NRMA”). The second defendant is the Motor Accidents Authority of New South Wales (“the MAA”). The third defendant is a medical assessor’s review panel comprising Assessors Lewin, Mason and Parsonage (“the Review Panel”). The second and third defendants have filed submitting appearances. Ms Pham relied on the affidavit of her solicitor Michael Lawandi filed 10 March 2015.

4. After judgment was reserved, senior counsel for Ms Pham requested that this matter be relisted. It was. Leave was given to Ms Pham to file further written submissions in relation to the application of Allianz Australia Insurance Ltd v Gonzales (2013) 65 MVR 286; [2013] NSWSC 362 to these proceedings, with a right of reply given to counsel for NRMA. I now have supplementary submissions from both parties.

Background

5. On 14 October 2010, Ms Pham was injured in a motor vehicle accident. On 8 December 2010, Ms Pham was injured in a subsequent motor vehicle accident. This judicial review is in relation to the 8 December 2010 accident. In that accident, Ms Pham suffered minimal physical injury but developed a major psychiatric and/or psychological injury, diagnosed as a major depressive disorder.

6. Under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”), rights to damages for non economic loss for injuries caused by motor accidents were significantly modified from that which previously applied under the common law. Section 131 prohibits the awarding of damages for non economic loss unless the degree of whole person impairment (“WPI”) of the injured person is greater than 10%. The Act also requires that any dispute about whether the WPI meets the s 131 threshold is to be resolved by an assessment.

7. As the parties could not agree as to whether or not Ms Pham’s WPI was greater than 10%, a medical assessment pursuant to s 60 of the Act was carried out. Medical Assessor Samuels (“the MAS Assessor”) determined that Ms Pham’s WPI caused by the 8 December 2010 motor accident was greater than 10%. NRMA applied for a review of the MAS Assessor’s decision. The Proper Officer referred the matter to the Review Panel. The Review Panel determined that Ms Pham’s major depressive disorder was not caused by the 8 December 2010 motor accident. NRMA now seeks judicial review of the Review Panel’s decision.

8. The main issue raised before the Review Panel and on this judicial review was causation and, in particular, whether the case of Gonzalez applies to these circumstances.

The legislation

9. Section 3A of the Act provides -

“3A   General restrictions on application of Act

(1)   This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a)   the driving of the vehicle, or

(b)   a collision, or action taken to avoid a collision, with the vehicle, or

(c)   the vehicle's running out of control, or

(d)   a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.”

10. Section 61 the Act relevantly reads:

“61   Status of medical assessments

…

(9)   A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.”

11. The decision of a MAS Assessor can be reviewed under s 63 of the Act. Section 63 relevantly reads:

“63   Review of medical assessment by review panel

(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.

…

(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.

…”

12. A review panel can also find guidance in the MAA Permanent Impairment Guidelines, 1 October 2007 (“the Permanent Impairment Guidelines”) and the MAA Medical Assessment Guidelines, 1 October 2008 (“the Medical Assessment Guidelines”). Both sets of guidelines may be characterised as delegated legislation under s 44(1) of the Act. They apply in respect of a motor accident occurring on or after 5 October 1999.

13. Clause 16.21 of the Medical Assessment Guidelines refers to a Review Panel assessment. Clause 16.21 provides:

“Review Panel assessment

16.21   The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1   consider afresh all aspects of the assessment under review;

16.21.2   determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3   determine whether additional information is required in order to make a decision;

16.21.4   determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5   if revoked, determine what new certificates are to be issued;

…”

Causation

14. Section 58 of the Act relevantly reads:

“58   Application

(1)   This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as ‘medical assessment matters’):

…

(d)   whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

…”

15. Under s 58(1)(d), an assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. An assessment of permanent impairment arising from an injury without a finding as to whether that injury was or was not caused by the subject motor accident has no statutory basis or function: see Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [61].

16. Clauses 1.7, 1.8 and 1.9 of the Permanent Impairment Guidelines set out the test to be applied by a review panel when assessing causation under s 58(1)(d). Those clauses provide:

“Causation of injury

1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.8   Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: ‘Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.

(a)   The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

(b)   The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination’.

This therefore involves a medical decision and a non-medical informed judgement.

1.9   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

17. In Ackling v QBE Insurance (Aust) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881, despite submissions from counsel that medical review panels were not qualified to determine issues of causation in addition to WPI assessments, Johnson J confirmed that review panels are authorised to determine causation. At [85]-[86], Johnson J pointed out that it should be kept in mind “that the assessment of the degree of permanent impairment of an injured person as a result of injury caused by a motor accident is to be undertaken by medical practitioners acting as medical assessors at first instance or as members of a review panel”. His Honour said the task of a review panel in assessing whether an injury was caused by the relevant accident is “a practical one”, and that it is “important that the process is not rendered unduly complex by legal terminology”. Johnson J commented at [87] that in undertaking the task of assessing causation, a review panel will derive practical assistance from clauses 1.7 to 1.9 of the Permanent Impairment Guidelines.

18. In Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650, Campbell J at [27] agreed with Johnson’s approach in Ackling, but made a further comment concerning the use of s 5D of the Civil Liability Act 2002 (NSW) by a review panel. That passage reads:

“[27]   Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)).”

19. Hence, clauses 1.7 to 1.9 of the Permanent Impairment Guidelines must be read in conjunction with the common law, as modified by s 5D of the Civil Liability Act. Section 5D reads:

“5D   General principles

(1)   A determination that negligence caused particular harm comprises the following elements:

(a)   that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and

(b)   that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).” (Emphasis in original)

20. The assessment of causation under s 5D involves two elements: “factual causation” under s 5D(1)(a) and “scope of liability” under s 5D(1)(b): Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [42]; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [12]. Determination of factual causation under s 5D(1)(a) is a statutory restatement of the “but for” test: but for the negligent act or omission, would the harm have occurred (see Adeels Place at [45]). The determination of scope of liability under s 5D(1)(b) involves a value judgment, as does the determination of factual causation.

21. There is a conflict between s 5D and clauses 1.7 to 1.9 of the Permanent Impairment Guidelines in that while s 5D(1)(a) mandates the use of the “but for” test, the Permanent Impairment Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.

22. Since Ackling and Owen, there has been confusion about the standard to be applied by a review panel when assessing causation, considering their lack of formal legal knowledge. Recently, in Peet v NRMA Insurance [2015] NSWSC 558, Hidden J was critical of allowing medical review panels to make decisions in relation to causation. His Honour remarked “one might question whether it would ever be appropriate for the normative judgment required by the Civil Liability Act s 5D(1)(b) to be made in the medical assessment process”.

23. In AAI Limited v Motor Accidents Authority of New South Wales [2015] NSWSC 912, Button J was of the view that the standard of analysis for causation required from a review panel is lower than that that would be required from legally qualified persons. At [43]-[44] his Honour commented that:

“[43] …I do not accept that it is incumbent upon a medical assessor, in undertaking his or her functions pursuant to s 58(1)(d) of the Act, to attempt to engage in an intricate legal analysis of the meaning of causation. In particular, I do not consider that it was the intention of Parliament that a medically qualified assessor must refer to numerous decisions of the High Court of Australia and the New South Wales Court of Appeal about the concept of causation in order to understand his or her function when undertaking a medical assessment.

[44]   To explain my opinion by way of reverse analogy, nor would I lightly interpret a provision of an Act to do with the functions of a legally qualified person (for example, a costs assessor), as calling upon such a person to undertake a detailed analysis of medical matters, unless the statute were perfectly clear to that effect.”

24. So while a review panel must take into account legal notions of causation (s 5D and the common law principles), it is also permitted to seek guidance in clauses 1.7 to 1.9 of the Permanent Impairment Guidelines (which does not necessitate the use of the “but for” test, but rather involves a determination of material contribution) and it is not strictly bound to apply the true legal test for causation.

The grounds of judicial review

25. The grounds of review are that the statement of reasons and certificate issued by the Review Panel contain both jurisdictional error and/or error on the face of the record in that the Review Panel misdirected itself and misunderstood, and misapplied, the Act in respect of the definition of “injury” contained in s 3. Ms Pham submitted that the Review Panel did this by:

(1)   Misdirecting itself, and misunderstanding and misapplying, the decision of Gonzalez. The approach as to causation, and the application of the Act, adopted by the Review Panel as a result of its incorrect analysis of the Gonzalez decision was an error; and

(2)   Basing its negative causation findings on the purported adoption of the thesis propounded by Dr Parmegiani in his report dated 16 May 2013, in which he concluded that Ms Pham developed a gradual onset of depressive symptoms, which deteriorated over time and culminated in a diagnosis of a major depressive disorder, as a result of her developing “fears of being hurt or persecuted by the other driver and her companion”. That approach was an error.

26. Before I deal with each ground of review, it is necessary to set out the reasons and decision of the Review Panel, as well as analyse Gonzales.

The reasons and decision of the Review Panel

27. On 30 June 2014, the Review Panel issued a certificate and statement of reasons. The Review Panel was comprised of Assessors Lewin, Mason and Parsonage. They are all psychiatrists. The MAS Assessor’s diagnosis of a major depressive disorder was not in dispute. The Review Panel focused on the issue of causation.

28. Firstly, the Review Panel examined the history of the collision, including the conduct of the other driver in the immediate aftermath of the collision and the ensuing police investigation. This involved consideration of the medical records, including the general practice notes from Dr Cheung of Bankstown; an assessment of Ms Pham by Dr Powell, an orthopaedic surgeon, dated July 2011; the report of Dr Taylor, a psychiatrist, dated 2 September 2011; the documentation commencing August 2012 of psychologist Ms Sarkis who provided treatment to Ms Pham; the assessment by Community Mental Health Services dated October 2012 (that was of limited assistance); the report of Dr Samuell dated 5 November 2012 (but this report did not refer to the 8 December 2010 motor vehicle accident); and finally, the report of Dr Parmegiani, consultant psychiatrist, dated 16 May 2013.

29. The Review Panel relied heavily on Dr Parmegiani’s report. That report included a summary of a statement provided by Ms Pham. The Review Panel stated:

“…Dr Parmegiani recorded that following the second accident (on 8/12/2010) she was driving with her son. He was then aged seven years. Her car had just been repaired following the October 2010 accident. She recalled being overtaken on the left-hand side. She stated that the other car sideswiped her vehicle… ‘She stated that she felt a sudden bang, and that she was pushed to the right. She then saw the car overtaking her and speeding away in front further, without stopping.’

She followed the car to the next street corner, chased her [the driver of the other car] and followed her until she turned right and eventually stopped by the side of the road. She stopped her car behind it.

She stated that the other driver, a lady, sat in the car. She got out and knocked on the window asking her why she did not stop. The other driver wound the window down and said, ‘my baby is sleeping.’ She asked the driver to exchange details and she wrote the driver’s details including her name, licence number, registration number on the envelope of her own CT scan which she had just collected. She noticed that the car had L-plates and commented that she was the learner and was not allowed to drive. She then asked to see the licence of the passenger, an older man, and she stated that he did not have one.

Dr Parmegiani then documents the history that the other car attempted to drive away whilst being in possession of Ms Pham’s driver’s licence. Various incidents were noted. Ms Pham attempted to pull the car key from the ignition of the other vehicle.

Dr Parmegiani recalled that the male from the other vehicle ‘manhandled her and stopped her’. It was noted that Ms Pham recalled the registration number and with the assistance of a witness, called the police. Police attended the scene of the accident and recorded Ms Pham’s statement. It was noted that police investigated the matter. Ms Pham stated that it took police quite some time to find the culprits but they were eventually charged with negligent driving. Ms Pham said that her driver’s license was not returned to her. Dr Parmegiani recorded that ‘as soon as a second accident happened, she became extremely scared and hypersensitive. She called her husband. He came to the site of the accident and picked up her son.’ Dr Parmegiani recorded that she was ‘very scared.’ He recorded various other symptoms. It was noted that she experienced difficulty concentrating and lost motivation. She lost her job at the end of January 2011. Following the termination of employment, her symptoms deteriorated further.

In particular, the panel noted page 12 of the report prepared by Dr Parmegiani... Dr Parmegiani observed that Ms Pham’s recollection of past events could have been affected by the passage of time, by her current psychiatric symptoms. In the final paragraph on page 12, he makes observations about the events which occurred on 8 December 2012. Reference was made to the motor vehicle accident itself and to the subsequent interaction with the driver of the other car and her male passenger. Dr Parmegiani concluded that these two individuals ‘acted towards her in a physically aggressive way. They stole her driver’s license and drove away from the site of the accident.’ He noted that it took the police several months to identify the other parties and to charge them. Dr Parmegiani concluded that during this period, Ms Pham developed fears of being hurt or persecuted by the other driver. She was aware that the other party knew where she lived because they had her driver’s license in their possession. Dr Parmegiani described a gradual deterioration into the development of a major depressive disorder.

Dr Parmegiani concluded that she feared some form of retribution.”

30. After reviewing the evidence, the Review Panel then set out its deliberations on causation. The Review Panel noted that both parties had provided submissions regarding the legal issues, particularly those in relation to the issue of causation. The Review Panel continued:

“The discussion in the case of Gonzalez concerned whether the injury was caused by ‘the use or operation of the vehicle’ or by some other factor.

…

The Panel concluded that the case of Gonzalez was relevant in this matter and, in light of that decision, the Panel determined that any psychiatric disorders arising from the collision itself or any other actions undertaken while operating a motor vehicle should be considered to be caused by the accident, whereas psychiatric injuries arising from other incidents, including the subsequent altercation and events related to the altercation which did not occur while operating a motor vehicle, should not be considered to be caused by the accident.

The panel placed particular weight upon the contemporaneous records. The panel noted that more recent accounts were accounts likely to be contaminated by other factors. Such factors might include the frailty of memory over a prolonged period of time, the impact of a depressive condition upon memory and the impact of multiple legal and medical interrogations.

The panel concluded that the events of the 14/10/2010 had not given rise to a discrete psychiatric illness. It was noted that the motor vehicle accident in October 2010 may well have sensitised Ms Pham to subsequent events.

…

The panel was not convinced that the accident itself could have resulted in the serious psychiatric condition suffered by the claimant which required hospitalisation including Electroconvulsive Therapy. A minor collision after which the claimant was able to follow and engage with the at fault driver could not cause such a severe mental illness as suffered by the claimant.

The panel was left with the question of how such a condition could have arisen. The panel was persuaded by the explanation offered by Dr Parmegiani. The psychiatric condition reportedly arose gradually and deteriorated over time during the period when the other party was aware of her address. Dr Parmegiani concluded that Ms Pham ‘developed fears of being hurt or persecuted by the other driver and her companion.’

The panel concluded that this is by far the more likely explanation for the development of her condition. The panel was of the opinion that, even accounting for prior vulnerability, the motor vehicle accident itself could not have given rise to such a severe psychiatric illness. …”

31. The Review Panel accepted the explanation by Mr Parmegiani that Ms Pham’s psychiatric condition reportedly arose gradually and deteriorated over time during the period when the other party was aware of her address. Dr Parmegiani concluded that Ms Pham “developed fears of being hurt or persecuted by the other driver and her companion.” The Review Panel was of the opinion that, even accounting for prior vulnerability, the motor vehicle accident itself could not have given rise to such a severe psychiatric illness.

32. Hence the Review Panel revoked the certificate issued by the MAS Assessor.

Consideration of Gonzales

33. Since the Review Panel applied Gonzales, and it is contended by NRMA that Gonzalez is directly applicable to these circumstances, it is necessary to briefly set out the facts and reasoning in that decision.

34. On 23 September 2008, Ms Carmen Gonzalez (“Ms Gonzales”) sustained some minor physical injuries from a motor vehicle accident at Warwick Farm railway station. She also claimed, as arising from the accident, to have sustained psychological injury that resulted from the conduct of Mr Phuc Cuong Dang, the other driver (“Mr Dang”) and his friends immediately following the accident and on the next day. Mr Dang’s insurer, Allianz Australia Insurance Ltd (“Allianz”), accepted liability in respect of the physical injuries but denied that any psychological injury was suffered from the accident itself. Rather, Allianz contended, that any such psychological harm was caused by separate events, thereby breaking the chain of causation and thus falling outside the scope of the Act.

35. The issue of the cause of the psychological injuries was referred to the Medical Assessment Service. The claim was first assessed by Dr Lim, who found that Ms Gonzalez suffered psychological injuries which were caused by the accident. Allianz disputed Dr Lim’s findings and the matter was referred to the Proper Officer in accordance with s 63 of the Act. The Proper Officer upheld the assessment of Dr Lim. Allianz sought judicial review in this Court.

36. In Gonzales at [5] Adams J set out the factual scenario:

“[5]   The claimant reported that on 23 September 2008 she was sitting in her car [a Nissan] in the car park at the Warwick Farm railway station waiting for her son who was returning home by train. This was about 8 to 8.30 in the evening. She reported that another car reversed into her car [a Honda]. She noticed that the man who was driving was having a quarrel with a woman sitting in the front passenger seat at the time. The claimant reported that the woman ran off when the accident happened.

She reported that ‘all the back of my car’ was damaged.

The claimant reported that as soon as she had the collision she went into ‘shock’. She felt pain in her knees and neck. She was worried that she might have aggravated her back injury [having undergone a L5/S1 discectomy on 13 October 2006].

She telephoned for an ambulance. When the ambulance arrived, she was examined by the ambulance officers and was told by them that she did not need to go into hospital.

The claimant reported that when the accident occurred, the driver made some telephone calls and she was soon surrounded by 5 men. She said they were all Asians. She said that they crowded around her and pressured her to say that another man was driving as the actual driver was a P-plater and may lose his licence because of the accident. She said,

‘They put me in a circle. One of them was getting agitated. He started going to his car, opening the boot. It was dark. I was by myself. One of them was playing with his keys and constantly doing that (waving her hand back and forth to demonstrate the movements) and telling me to say to the police the owner (another man) of the car was the one who was driving.’

The claimant reported that, by the way the men were crowding around her, with one of them swinging his keys and opening the door of his boot and kept turning to it, she became fearful they were ‘going to do something’ to her. She said that it felt like she was being crowded and menaced for a long time. She said that the men were very aggressive and even swore at her.

The son arrived at about the same time the ambulance arrived. When she was being examined by the ambulance officers in the ambulance, she could not see her son and began to worry for the safety of her son. She said that she had difficulty telling the ambulance officers how she felt as she was in a shock.

The claimant's husband eventually arrived and took her home.”

37. Adams J then analysed the law in relation to causation. At [21] to [24] his Honour stated:

“[21]   The question is not so much whether the conduct of Mr Dang and his friends, outrageous and disgraceful as it was, caused Ms Gonzalez's psychiatric injuries, but whether they were caused in the use or operation of the vehicle and, temporally, during the events specified in paras (a), (b), (c) and (d). As to the last of these, the driving of the vehicle did not, as it seems to me, cause the ‘dangerous situation’. Rather, that was caused by the decision of the driver to collect his friends and intimidate Ms Gonzalez. The ‘but for’ test in this context does not identify more than a necessary as distinct from a sufficient link in the causal chain. In March v E. & M.H. Stramare Pty Ltd (1991) 171 CLR 506 Mason CJ pointed out (at 517) that, for its usefulness, ‘the 'but for' test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act’. See also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 and Strong v Woolworths [2012] HCA 5; (2012) 246 CLR 182.

[22]   The character of the necessary link between faulty driving and the injury was considered in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529. The plaintiff was injured whilst working in a warehouse occupied by the respondent. He and others removed boxes from a container and put them onto a pallet which was taken by a forklift up a ramp. As it did so, it caused the ramp, the landing and the container to vibrate. This vibration caused boxes stacked in the container to fall and strike the plaintiff as he stood about a metre inside the container. That the plaintiff's injury was caused by the forklift was undisputed but was it ‘caused by the fault of the owner or driver in the use and operation’ of the forklift, within the definition of ‘injury’ in s 3(1) of the Motor Accidents Compensation Act? It was contended that the fault was the system of work and not that of the driver. A plurality of the High Court held -

‘It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded.’

The necessary link, therefore, between the fault and the driving was not established, even though it was vibration caused by the forklift that caused the collapse of the boxes onto the plaintiff. So, it is contended for Allianz, there was faulty driving here but the psychological injuries to Ms Gonzalez were not caused by that driving, that is to say, by ‘the use or operation of the vehicle’, on the assumption of course that those injuries were not attributable to the ‘shock’ which she mentioned to the Doctor.

[23]   The nature of the link was again explored in Nominal Defendant v Hawkins [2011] NSWCA 93. The plaintiff was cycling along the Pacific Highway followed by a vehicle, with its horn beeping and the occupants yelling. The vehicle was driven close alongside at a speed that was adjusted to approximate the cyclist's and, immediately after he was struck by an object thrown from it that caused him to lose control, accelerated away, moving out of the kerbside lane. The trial judge's conclusion that the vehicle was intentionally driven in that way in order to permit or facilitate something being thrown at the cyclist was upheld on appeal. The appellant contended, however, that the ‘immediate or proximate’ cause of the ‘injury’, as required by the Motor Accidents Compensation Act was the throwing of the object by a passenger and not any driving. Hodgson JA (with whom the other members of the Court agreed) said -

‘[33]   ... I do not understand their Honours in ... [Allianz] to be altogether ruling out the possibility that there may be more than one cause which is sufficiently predominant or immediate or proximate to satisfy the requirements of causation in the definition of ‘injury’ in the MAC Act. However, clearly in my opinion they are saying that the fault in the use or operation of the vehicle, and the driving of the vehicle (in those cases where par (a) of the definition of ‘injury’ is in question), must have a very substantial causative role; and that in the former case its character as fault must be related to the actual use and operation of the vehicle as such, rather than merely as fault (with the aid of the motor vehicle) in facilitating a dangerous or criminal act by a passenger unconnected with the actual driving or operation of the vehicle.’

His Honour concluded -

‘[44]   In the words of the definition, there was fault in the use or operation of the vehicle, which was not merely a fault in putting the thrower of the object in a position to ... [throw the object at the plaintiff]: there was fault in the manner of driving so as to harass the plaintiff, and the throwing of the object was part of and incidental to this harassing driving. In those circumstances, I think it can be said that ... [the plaintiff's] injury was caused by the driver's fault in the use or operation of the vehicle, and was a result of the driving of the vehicle, within the definition of ‘injury’ in the MAC Act.’

[24]   Although it is necessary to be cautious about reasoning from factual examples, it seems to me that the test applied by Hodgson JA is, if I may respectfully say so, useful. The closeness of the link between the incident and the driving is very much a question of fact and degree but it must be ‘very substantial’ in order to satisfy the requirements of predominance, immediacy and proximity. Thus, if a driver merely holds the vehicle steady so that a gun can accurately be fired by a passenger at a nearby house, that will not suffice: ibid at [30] - [31]; see also Ross v Transport Accident Commission [2000] VSC 112; Mani v Nominal Defendant [2002] QSC 152 and Coley v Nominal Defendant [2003] QCA 181.”

38. In summary, Adams J decided that the events after the motor accident comprised a novus actus interviens because they were materially temporally removed from the collision, and denied the satisfaction of the statutory concepts of “use or operation of the vehicle” and “is a result of and is caused… during” in s 3A. His Honour held that the driving of the vehicle did not cause the “dangerous situation” but that rather, that was caused by the decision of the driver to collect his friends and intimidate Ms Gonzales. He found that while there was faulty driving, “the psychological injuries to Ms Gonzales were not caused by that driving, that is to say, by ‘the use or operation of the vehicle’” (at [21]). Adams J at [26] decided that the conclusion was inevitable that Ms Gonzalez's psychiatric injuries did not satisfy the requirements of the Act.

(1)   Did the Review Panel apply the correct test for causation?

39. Senior counsel for Ms Pham submitted that the Review Panel’s path of reasoning shows that they did not sufficiently turn their mind to what the correct causation test to be applied was. Further, Ms Pham submitted that the Review Panel have, based on an incorrect interpretation of Gonzales, limited causation for the purposes of a motor accident inquiry to the actual collision or something attached to the vehicle, whereas a better approach is to break the accident down into four different phases. They are:

• Firstly, the vehicle driven by the other driver colliding with Ms Pham’s vehicle;

• Secondly, the other driver failing to stop at the scene, causing Ms Pham to drive after the vehicle in order to secure particulars;

• Thirdly, Ms Pham and the other driver exchanging particulars, at which stage there was some animosity or intimidation by the other driver and some touching by a passenger from the other driver’s vehicle. At this stage, the other driver left the scene, having not returned Ms Pham’s licence. Senior counsel for Ms Pham emphasised how in a motor accident, there is a legal requirement to exchange particulars with which Ms Pham complied, and so accordingly, her conduct and the other driver’s is to be viewed in accordance with that obligation.

• Finally, the return of the licence by the police to Ms Pham the following day, during and after which Ms Pham was concerned about the fact that the other driver knew her address.

40. Senior counsel for Ms Pham submitted that breaking down the accident into the above stages demonstrates that the exchange of particulars came under the definition of “use or operation of the vehicle” set out in s 3A of the Act, which distinguishes the facts in these current proceedings from those that underpin the Gonzales case. He submitted that the circumstances in Gonzales did not satisfy the statutory concept in s 3A of “use or operation of the vehicle” since the telephone calls and ensuing conduct by the Mr Dang and his friends were materially temporally removed in time from the collision and thus constituted a novus actus interviens. Further, senior counsel for Ms Pham said that what occurred in Gonzales had a much higher degree of separate criminality.

41. According to senior counsel for Ms Pham, because the temporal reach of the legislation required Ms Pham to exchange particulars, unlike the circumstances in Gonzales, the confrontation in these circumstances between Ms Pham and the other driver was inexorably intertwined with the motor accident. Hence, he submitted that since the exchange of particulars caused the confrontation and loss of licence, which in turn caused Ms Pham’s major depressive disorder, there was no novus actus interviens.

40. Counsel for NRMA referred to clause 16.21 of the Medical Assessment Guidelines, which set out the task of the Review Panel. She submitted that it had complied with these guidelines. Counsel also referred to clause 1.9 of the Permanent Impairment Guidelines, which states that “there is no simple common test of causation that is applicable to all cases”, but that rather “the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident.” Counsel said the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible, and suggested that (as outlined in the guidelines) although the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”. Therefore, the Review Panel were not required to do any more or less than what is defined in the guidelines.

41. Counsel for NRMA submitted that the three specialists on the Review Panel were psychiatrists, not lawyers, and that the onus in regard to detailing legal argument in regard to causation proposed by Ms Pham was too high, and is not a requirement that they should have had to meet. NRMA submitted that consistent with Ackling, the Review Panel did not need to define s 5D of the Civil Liability Act or get into the complexities of the “but for” test. Counsel for NRMA argued that the Review Panel, having gone through a detailed analysis of the medical evidence, have formed an opinion about whether or not the motor vehicle accident resulted in the injury, and have satisfactorily completed their task.

42. So far as Gonzales is concerned, counsel for NRMA submitted that it was “directly applicable” to these circumstances and applied correctly by the Review Panel. Counsel submitted that the Review Panel correctly identified an intervening event which broke the chain of causation. According to counsel for NRMA, the Review Panel applied the case of Gonzales to the facts in this case and accordingly decided that as in those circumstances, events that occurred after the accident were a break in the chain of causation. They did not articulate in legal detail why they had come to that decision with reference to the principles of novus actus interviens, but it was unnecessary for them to do so.

Conclusion

45. Both Gonzales and the circumstances in this case required a determination of whether injury was caused by “the use or operation of the vehicle” or by some other factor. Both required an analysis of whether a confrontation following a motor accident fell within that definition. In Gonzales, the events which caused psychiatric damage occurred after the vehicles had stopped. The plaintiff had stepped out of her vehicle. There was no link between the faulty driving and the psychiatric damage. In Ms Pham’s case, the events which caused psychiatric damage also occurred after the vehicles had stopped. Ms Pham had stepped out of her vehicle to speak with the other driver.

46. I accept that sometimes it is difficult to determine whether or not injury was caused in the “use or operation of a motor vehicle”. However, the closeness of the link between an incident and the driving must be “very substantial” in order to satisfy the requirements of predominance, immediacy and proximity: Gonzales at [24]. Dr Parmegiani’s report (Ex A, p 103) stated that it was “the subsequent interactions with the driver of the other car and her male passenger, who acted towards her in a physically aggressive way” and stole her driver’s licence which led to “Ms Pham develop[ing] fears of being hurt or persecuted by the other driver and her companion as, being in possession of her driver’s licence, they knew where she lived”. It was Dr Parmegiani’s opinion that it was during the period after the accident, where the police attempted to identify the other driver and her passenger, that Ms Pham “developed a gradual onset of depressive symptoms, which deteriorated over time and culminated into a diagnosis of Major Depressive Disorder”. In my view, the Review Panel was entitled to determine that that psychiatric injury was not caused by the fault of the other driver in the “use or operation” of a motor vehicle.

47. Hence, the Review Panel did not err in limiting causation to the actual accident itself. Nor did the Review Panel err by not reaching the conclusion that there was a very substantial link between the motor vehicle accident and Ms Pham’s major depressive episode. Utilising common law principles (Gonzales) the Review Panel determined that the major depressive episode was not materially contributed to by the motor vehicle accident. Although the Review Panel did not refer specifically to s 5D and the “but for” test, it’s reasons demonstrate a detailed and practical assessment of whether the motor accident itself could have given rise to such a severe psychiatric illness. If on a strict legal analysis, the Review Panel’s reasons do not accord with the test set out in s 5D, they satisfy the test of material contribution set out in clauses 1.7 to 1.9 of the Permanent Impairment Guidelines.

48. Further, the Review Panel’s reasons were adequate. Being medical assessors, not lawyers, they cannot be expected to provide reasons that expose detailed legal analysis. Relevant here is the well known statement of principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 where the plurality said:

“In other words, the delegate starts and finishes with the correct test; it is only some phraseology in between which provides the basis for a conclusion that she had slipped from an assessment of real chance to an assessment of balance of probabilities.

When the Full Court referred to ‘beneficial construction’, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be ‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker. The Court continued: ‘The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

49. The Review Panel’s reasons should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 272. The principles relating to novus actus interviens are complex, and in the circumstances, the Review Panel did not misunderstand or misapply Gonzales, nor did it misdirect itself.

(2)   The use of Dr Parmegiani’s report

50. Ms Pham’s alternative submission was that the adoption of the Dr Parmegiani thesis, as the foundation for a negative causation finding, was a finding that was illogical, irrational and unreasonable, and was an irrelevant consideration. Senior counsel for Ms Pham submitted that since Dr Parmegiani had in fact made a positive causation finding, the selective use of Dr Parmegiani’s opinion as a foundation for a negative causation finding was an evidential misuse and distortion. He argued that in that sense, Dr Parmegiani’s opinion was not information and material that supported or was probative of a negative causation finding.

51. Counsel for NRMA disagreed. Her position was that the Review Panel had set out in great detail Dr Parmegiani’s findings and explanation of events in their reasons for decision, and the proper characterisation of its use of the report is not that it distorted it and selectively used it, but that it utilised his clinical findings and explanation and, in agreeing with his conclusion that Ms Pham “developed fears of being hurt or persecuted by the other driver and her companion”, it added its own reasoning in determining the development of her condition, which was defensible and correct, lawful and open to it.

52. Counsel for NRMA argued that further, while the Review Panel did place weight on the report of Dr Parmegiani, it was entitled to do so. Further, counsel said that the Review Panel also considered and specifically detailed in their reasons for decision several other significant pieces of evidence including submissions from the parties in relation to legal issues, the clinical notes of Ms Pham’s general practitioner, photographs of Ms Pham’s vehicle and the psychiatric report of Dr Diamond.

53. In any event, NRMA’s submission was that the Review Panel provided an explanation as to why particular weight was placed upon the contemporaneous records. That was because “more recent accounts were accounts likely to be contaminated by other factors. Such factors might include the frailty of memory over a prolonged period of time, the impact of a depressive condition upon memory and the impact of multiple legal and medical interrogations”.

54. It is my view that there was nothing illogical, irrational or unreasonable about the decision of the Review Panel to rely heavily upon the report of Dr Parmegiani. Dr Parmegiani had summarised the evidence of Ms Pham contained in her statement. The Review Panel simply came to their decision based on the medical evidence and records before them. They did not selectively use Dr Parmegiani’s opinion over other more relevant evidence. They used the contemporaneous records and provided an adequate explanation for putting less of an emphasis on more recent accounts. This ground of review fails.

55. The result is that the application for judicial review fails. The summons filed 12 December 2014 is dismissed.

56. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis as agreed or assessed.

Orders

The Court orders that:

(1)   The summons filed 12 December 2014 is dismissed.

(2)   The plaintiff is to pay the first defendant’s costs on an ordinary basis as agreed or assessed.

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Decision last updated: 26 August 2015