Tan v Basaga

[2011] NSWSC 1319

Supreme Court

New South Wales

Medium Neutral Citation:	Tan v Basaga [2011] NSWSC 1319
Hearing dates:	2 November 2011
Decision date:	03 November 2011
Jurisdiction:	Common Law
Before:	Hall J
Decision:	The Notice of Motion filed 2 November 2011 is dismissed. Costs of the Notice of Motion reserved.
Catchwords:	TORTS – personal injuries arising from motor vehicle accident – Motor Accidents Compensation Act 1999 – s.111 – whether matter should be remitted for further claims assessment in light of “significant new evidence” - whether details of share trading constituted “significant new evidence” – whether implication derived from treating psychiatrist constituted “significant new evidence” – whether alteration in opinion in cross-examination constituted “significant new evidence” – whether such evidence could have “materially affected” the assessment of expert witnesses
Legislation Cited:	Motor Accident Compensation Act 1999
Category:	Principal judgment
Parties:	Soo Pin Tan (Plaintiff) Lorima Basaga (Defendant)
Representation:	Counsel: P: A Lidden SC/E Welsh D: J Poulos QC/W Fitzsimmons   Solicitors: P: Brydens D: Moray & Agnew
File Number(s):	2010/131250

rULING ON APPLICATION UNDER S.111 OF THE MOTOR ACCIDENT COMPENSATION ACT 1999

1. HALL J:

Introduction

2. This judgment concerns an application by the defendant for the hearing of the substantive proceedings to be adjourned upon the basis that significant evidence has been adduced during the course of the hearing which evidence it is contended was not available to a claims assessor when an assessment was made on 26 March 2010 under the provisions of s.94 of the Motor Accidents Compensation Act 1999 (“the Act”).

3. The application is made under s.111 of that Act.

The proceedings

4. The plaintiff commenced proceedings by way of Statement of Claim filed on 26 May 2010. He plaintiff alleges that, on 20 August 2005, at about 8.15 am he was driving his motor vehicle in a westerly direction along the onramp to the M5 Motorway from Bexley Road, Bexley and, when at a point where the two lanes merged, the defendant collided with the rear nearside corner of his vehicle causing the plaintiff’s vehicle to bounce off the adjacent concrete walls of the onramp.

5. On 15 July 2010, the defendant filed a Defence denying liability. There was no contributory negligence pleaded.

6. The hearing of the proceedings commenced on 25 October 2011. The proceedings thereafter continued on 26 to 31 October 2011.

7. On the latter date (the fifth day of hearing), Mr J Poulos QC, who appeared on behalf of the defendant, stated that he was instructed to admit breach of duty.

The plaintiff’s claim

8. The plaintiff is a medical practitioner. He claims damages from the defendant and, in particular, seeks relief in respect of past economic loss and future economic loss by reason of alleged incapacity said to arise from the injuries sustained in the motor vehicle accident.

9. In brief, the plaintiff alleges that he sustained spinal injuries as a result of the accident, the predominant physical injury being to the C3/4 level of his cervical spine.

10. The plaintiff telephoned police and for an ambulance and later attended Concord Hospital where he was treated for his injuries.

11. He resumed work both as a hospital medical officer and as well doing private locum work through an agency. He worked long hours, but, according to the evidence, he was terminated by the agency in late 2008 by reason of the fact that he had cancelled arrangements to provide work thought the agency by reason of alleged pain and disability arising from his spinal injuries.

12. The claim for past and future economic loss and for non-economic loss is based upon alleged physical disability arising from spinal injuries as well as the development of a depressive condition which the plaintiff alleges has impaired his ability to function and, in particular, to concentrate and work.

13. Mr A Lidden SC, who appeared with Ms E Welsh of counsel on behalf of the plaintiff, tendered in the principal proceedings the medical evidence (Exhibit C) which comprised medical reports from the plaintiff’s general practitioner, radiological investigations and medical evidence from neurosurgeons and evidence from a consultant psychiatrist, Dr Julian Parmegiani.

14. It has been contended on behalf of the plaintiff that the evidence, including the medical evidence, establishes that the plaintiff has been incapacitated and that it is likely that he will remain incapacitated into the future.

Background matters

15. The plaintiff’s was born in Singapore in 1972 and therefore was 33 years of age at the date of the accident and is presently 39 years of age. He migrated to Australia in 1993.

16. The plaintiff completed High School in Singapore to university entrance level being the equivalent of Year 12 in Australia. Following completion of his secondary schooling, he undertook National Service and then travelled to Australia by himself.

17. In 1993, he enrolled at the University of Sydney. He there completed a Bachelor of Medicine and Bachelor of Surgery in 1998.

18. Following completion of his medical course, the plaintiff undertook work at Gosford Hospital where he worked for a period of two years, that is to say, to approximately 2002. He commenced work at Gosford Hospital as an intern and after 12 months moved to the position of Resident Medical Officer for a period of 12 months.

19. The plaintiff returned to Singapore and spent a further six months as a medical officer in the Singapore Army then returned to Australia at which time he joined Westmead Hospital as a Registrar. He worked for one year at that hospital and then moved to Hornsby Hospital where he spent the next two and a half years as a Registrar.

20. The plaintiff’s evidence is that he completed the requirements of the Australasian College of Physicians for practical experience whilst working at hospitals in Australia in which it was necessary to obtain his Fellowship of that College.

21. In order to complete the requirements to become a physician, he was required to complete course work and undertake examinations.

22. In 2004, he was due to sit for his exams, but his studies were interrupted by the death of his father who had been suffering from depression and committed suicide. The plaintiff’s evidence was that his mother became very depressed after the death of his father and she needed a good deal of attention.

23. The plaintiff stated that these family problems led to him taking a few months off work in order for him to get his personal and family affairs in order and cope with the death of his father. He said that, during that period, he was suffering from depression.

24. By the second half of 2004, the plaintiff said that he got things more under control. He had completed his practical training for the work of a physician but decided to postpone his examinations for the College for 2005 during which he intended to earn as much money as he could as a locum. He stated, in this respect, that it was not such much that he needed money, but that his mother was impoverished and needed his support.

25. The plaintiff’s evidence was that he had been proceeding well with his practical and theoretical training as required by the College of Physicians.

26. He was offered a conditional advanced training position at Westmead Hospital for 2005. The positions on offer at that hospital were reserved for students qualifying for admission to the College. He was successful in getting the only position at Westmead Hospital offered, but he decided to decline it whilst he continued to work as a locum and make money.

27. In early 2005, the plaintiff developed an interest in share trading. In that year, he also undertook two jobs in the medical profession. The first was as a locum in the public hospital system, but most of his work in that capacity was done at Wollongong Hospital, although, on occasions, he would travel to the Blue Mountains Hospital or other hospitals as needed. He was paid a salary in those positions and tax was deducted by his employers.

28. The other medical work undertaken by him was for an organisation, Australian Wide Locums, being an agency that specialised in the placement of locum doctors in hospitals around Australia.

Application under s.111 of the Motor Accidents Compensation Act 1999

29. On 2 November 2011, the sixth day of the hearing of the principal proceedings, the defendant filed a Notice of Motion dated 31 October 2011 which was supported by an affidavit of Mr John Michael Cooper, solicitor for the defendant, sworn on 31 October 2011.

30. In the Notice of Motion, the defendant sought orders as follows:-

“(1) Pursuant to s.111 of the Motor Accidents Compensation Act:-

(a)   The present Court proceedings are adjourned; and

(b) This matter be referred for further assessment under Part 4.4 of the Motor Accidents Compensation Act.

(2) Pursuant to s.62(1)(b) of the Motor Accidents Compensation Act, the Court refer this matter for further medical assessment.”

The statutory provisions

31. Section 111 is in the following terms:-

“111   Matter to be remitted for further claims assessment where significant new evidence produced in court proceedings

(1)   This section applies to court proceedings in respect of a claim for which a claims assessor has issued a certificate under s.94.

(2)   If significant evidence is adduced in the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until:-

(a)   the party who has adduced the evidence has referred the matter for further assessment under Part 4.4, and

(b)   a claims assessor has issued a further certificate under s.94 in respect of the claim.

(3)   For the purposes of this section, significant evidence is evidence that the court considers may have materially affected the assessment made by the claims assessor if it had been made available to the claims assessor when the initial claims assessment was made (whether or not it was available at that time).”

The evidence on the application

32. Mr Cooper, in his abovementioned affidavit, stated that an application for general assessment was lodged by the plaintiff in the Claims Assessment Resolution Service on 18 September 2008. He annexed to his affidavit the application that was lodged by the plaintiff and other documents relevant to those proceedings.

33. According to the affidavit, the application was heard by Assessor Stern who proceeded with an Assessment Conference on 10 February 2010.

34. On 26 March 2010, the assessor issued a Certificate and Reasons pursuant to s.94 of the Motor Accidents Compensation Act.

35. On or about 19 December 2008, the plaintiff lodged a MAS Form 2A with the Medial Assessment Service which sought assessment of the extent of whole person impairment as a result of injury to the plaintiff’s neck, lumbar spine and head.

36. Assessor Wilding, on behalf of the Medical Assessment Service issued a Certificate dated 22 December 2009.

37. Assessor Synnott of the Medical Assessment Service issued a Certificate dated 4 May 2009.

38. In the Defendant’s Outline of Argument in relation to the application concerning s.111, it was submitted that, in the current proceedings before this Court, evidence had been adduced “… that was not made available to the claims assessor. The evidence so adduced may have materially affected the assessment made by the claims assessor if it had been made available to him when the initial claims assessment was made (whether or not it was available to him at the time)” (at [3]).

39. In addition to the affidavit evidence, a number of documents were tendered on behalf of the defendant, the present applicant. They were:-

1. Exhibit B1: Defendant’s exhibit bundle.

2. Exhibit B2: Bundle of correspondence regarding CARS Assessment.

3. Exhibit B9: Bundle of correspondence regarding CARS Assessment.

40. In the application, Mr Lidden tendered the following documents:-

1. Exhibit B3 – CARS assessment and certificate.

2. Exhibit B4 - Claim form of plaintiff dated 20 August 2007.

3. Exhibit B5 - Assessment certificate of Dr Wilding.

4. Exhibit B6 - Assessment certificate of Dr Synnott.

5. Exhibit B7 - Mr Liddens submissions to CARS Assessor dated 15 March 2010.

6. Exhibit B8 - Agreed facts.

41. Mr Poulos on behalf of the defendant contended that evidence concerning the plaintiff’s trading in shares and contracts for difference (CFDs), although the subject of evidence before the Assessor, was not the subject of detailed evidence that established the nature and extent of the trading. In that respect, it was contended that the evidence in the present proceedings did establish the nature and extent of that trading. Such evidence, it was submitted, constituted “significant evidence” within the meaning of s.111(3) of the Act. In this respect, reliance was placed, in particular, upon the following documents:-

1. A schedule of trading (Exhibit 2).

2. Report of Moser Bland & Co dated 30 June 2011.

42. In addition, the applicant/defendant relied upon the balance of the records comprising Exhibit B1 which included clinical notes of Dr Koziol, consultant psychiatrist, who has treated the plaintiff. I will return to this aspect later in this judgment.

43. Additionally, specific reference was made to the report of Dr Spira dated 13 May 2011 (Dr Spira was retained by the applicant/defendant) and the joint report of Dr Spira and Dr Lorentz dated 15 October 2011, copies of which reports are included behind Tabs 17 and 18 of Exhibit B1.

44. In the substantive or principal proceedings presently part heard in this Court, the evidence comprised evidentiary statements of the plaintiff (Exhibits A1, A2 and A3). In paragraph [41], reference was made by the plaintiff to his tax return for 2006 and, in a summary way, provided details concerning the results of share trading for that year.

45. In evidence in chief, the plaintiff gave brief evidence concerning his share trading activities. He was cross-examined on a number of occasions and at considerable length in relation to his activities associated with the purchase and sale of shares and of CFDs as well as his more recent interest in purchasing coins and bank notes. In summary, the cross-examination was directed to establishing that the plaintiff had undertaken a great number of trades over the years since his accident which the defendant sought to rely upon as evidence that the plaintiff was capable of a high level of concentration, activity and capacity not disclosed to medical practitioners including those who have given evidence in the present proceedings.

46. The plaintiff, in responding to questions in cross-examination (see evidence below), disputed the suggested inference or conclusion that he had acted as a professional share trader, indicating that he made the various trades upon the basis of recommendations in financial newsletters and such like material but that he did not undertake research, analysis or evaluation of financial data before making the trades.

47. In evidence, he said that with respect to much of his investing, he acted on the basis of “taking a punt”. He gave evidence that, apart from using money he had earned as a medical practitioner, he also utilised in his trading a significant amount of money that belonged to his wife who gave him the money so that he would be able to trade. The evidence indicated that, over time, his trading was unprofitable and he incurred substantial losses.

48. I note that the plaintiff’s claim does not include a claim for financial losses associated with the trading.

49. In cross-examination, the plaintiff refuted the question when put to him that he had made a deliberate decision before the CARS Assessment to keep the share trading secret (transcript, 26 October 2011 at p.147). Reference was made in the course of submissions to documents which indicated that there was disclosure of the plaintiff’s share trading activities and that the Assessor had information as to the nature of them and the losses incurred.

50. It was also put to the plaintiff and relied upon in the present application that his failure to successfully trade in shares and CFDs was a large contributor, if not the major contributor, to his depression since 2005. Again, the plaintiff refuted the suggestion (t.147).

Evidence on the plaintiff’s trading activities

51. In cross-examination, the plaintiff said that he traded using his computer at home. He said that he read newsletters (t.102). He also said that he had subscribed to different newsletters and that he said “I just follow the instructions” (t.110).

52. He said he agreed that he read a publication called Fat Prophets. He said that he did not read all the details contained therein (t.110).

53. He agreed that he engaged in share trading after the accident as a diversion and as recommended by a psychiatrist (t.117).

54. The plaintiff rejected, as earlier stated, the suggestion put to him that his depression was related to his losses (t.131).

55. When asked whether he had a “system” for his trading, he replied in the negative (t.134). It was then put to him (t.134):-

“Q. Your system was to read information?

A. I just tick whatever suggestion was given to me and I just follow it and do whatever it says.”

56. A little later, he was asked (t.134):-

“Q. While you were doing these things, were you trading in crude oil?

A. Yes.

Q. What do you have to do to do that?

A. I was just taking a punt.

Q. But on what?

A. I don't know. I have no rationale behind it.

Q. A punt on what? Is it some kind of market?

A. Whether it is either up or going down.

Q. And how do you know whether it is?

A. I'm making a guess.

Q. But you must look at something?

A. Like I said, I'm taking a punt.

Q. What's the information upon which you are taking your punt?

A. I'm pretty much tossing a coin. “

57. He was asked about his method (t.136):-

“Q. And is there a special method of purchasing a long position for oil? What do you do?

A. You go into the platform and you click on buy, how many contracts. That's basically it.

Q. How did you learn about that?

A. That was a platform that I have been using way before the accident.”

58. It was put to him that he gave a history to Dr Parmegiani of difficulty concentrating and he agreed that he did. He said:-

“I can’t concentrate for a long period of time, no. I can’t read more than two pages at a go …”

59. It was later put to him that he had deliberately withheld information concerning his trading (t.139):-

“Q. As at December 2009, I suggest to you that what you did was you deliberately kept back from the doctor any information that might give him some cause to think that your business might be a contributing factor to your mental state?

A. No, I deny that.

Q. And that you decided deliberately to withhold the information from him because it might show to the doctor that you had a higher capacity to perform work that you could take in the labour market, or as a doctor?

A. No, that is not true.”

60. The plaintiff was asked about the history he provided to Dr Parmegiani for the purposes of the doctor’s report dated 8 February 2011. It was noted that, in the report, the plaintiff gave Dr Parmegiani a history:-

“… Dr Tan traded shares online. He did not recall some of his trades.”

61. It was put to him that the plaintiff only disclosed a limited amount about his trading shares as a “throw away line” (t.145).

62. The evidence on the present application established that there was made available to the Assessor information that related to the plaintiff’s trading activities including, in particular:-

1. Income tax returns including a business return referring to the results of his trading.

2. The plaintiff’s evidentiary statement.

3. His wife’s evidentiary statement.

4. Submissions made to the Assessor on behalf of the plaintiff.

63. In addition, the evidence on the present application included the reasons for the decision of the Assessor (Exhibit B3).

64. The subject of the plaintiff’s trading was referred to in the Assessor’s Reasons for Decision. At p.16 of the Reasons, the Assessor observed:-

“The situation has been complicated by his share trading but it is noted that, in the period since the accident, he made a loss of about $300,000 and it could not be said, as a whole, that his share trading has been successful. Rather the reverse.

I have not been provided with comprehensive information as to the tax consequences of his share trading. I have been provided with copies of income tax returns and other financial statements.”

65. Mr Lidden prepared a document entitled “Further Claimant’s submissions” dated 15 March 2010, a copy of which became Exhibit B7 on the present application.

66. Mr Poulos QC, for the defendant, stated that he did not have any information that confirmed that those submissions had been actually received by the Assessor. Mr Lidden, however, submitted that an examination of the reasons reflected the terms of his submission and that there is no reason not to accept that the Assessor had received them. I consider, in the circumstances, that, on the balance of probabilities for the purpose of the present application, I should proceed upon the basis that the Further Claimant’s Submissions was material that was made available to the Assessor.

67. The proceedings before the Assessor were interrupted for the purposes of obtaining information concerning the share trading activities. In the Further Claimant’s Submissions it was stated:-

“These submissions are intended to supplement the earlier two sets of submissions. … The hearing of the matter … (have) been delayed due to the claimant’s evidence that he ought to be able to obtain a printout from CommSec as to his investment share portfolio concerning his business as a share trader. According to the claimant, this computer printout ought to be able to reveal the nature of his share trading losses or profits since the accident. Regrettably, and although CommSec has provided a computer printout containing literally hundreds of share transactions over many years, there is no computer record which sets out periodic profits and losses …”

68. The submission went on to note that Mr Lidden was not prepared to devote four to five days adding up the various share purchases and sales and try to work out profit and loss results.

69. The submission referred to the share trading activities of the plaintiff and, in particular, to p.5 of his tax return for the 2005 year and the small loss resulting.

70. The submissions also referred to the plaintiff’s activities and supplementing income through share trading for the 2007 year.

71. The submissions also referred to the 2008 year stating (p.2):-

“… As he suggested in his evidence, he was also making bad decisions in respect to this share trading and a further loss of $51,587 occurred.”

72. I note at this point that no transcript was maintained of the proceedings before the Assessor.

73. Reference was also made in the supplementary submissions to losses arising from the plaintiff’s trading activities in 2009.

74. Mr Poulos, on the first day of the hearing in this Court, stated that the present case was one “… conditioned by s.111 of the Motor Accidents Compensation Act which has what appears to be a mandatory stipulation within it” (transcript, 25 October 2011 at p.1).

75. The issue, however, was not pursued by way of an application until the Notice of Motion was filed on 2 November 2011 (as earlier noted, on the sixth day of the hearing). On the first day of the hearing, I raised with Mr Poulos what the “significant evidence” was in terms of s.111. He indicated:-

1. Share trading and trading in CFDs by the plaintiff following injury (t.3).

2. The implication from a note from the treating doctor that the depression was secondary to trading losses rather than to a chronic pain syndrome (t.4).

3. An alteration in the opinion expressed by Dr Parmegiani as to his prognosis for the plaintiff’s recovery (t.4).

76. The present position, accordingly, has been reached whereby the the application in relation to the issue under s.111 not having been filed until the sixth day of hearing, there has now effectively been two hearings on the merits of the plaintiff’s claim, one by the Assessor pursuant to the provisions of the Act and the current trial in which the evidence has been completed and written submissions made. The only remaining matter before judgment is reserved is any supplementary oral submissions that counsel for the parties may wish to make.

Evidence of the plaintiff’s wife

77. The plaintiff’s wife, who is also a medical practitioner, provided an evidentiary statement in the present proceedings (Exhibit C) containing, inter alia, her account of the plaintiff’s trading activities after the accident (at [14]). She also gave oral evidence in relation to that matter. In evidence in chief, it was asked (t.206-207)

“Q. Has he obtained any access to your funds in the last 6 months or so in respect of share trading activity?

A. From the joint account but not from my personal account.

Q. The coin and bank note collecting money that you've said has come from you, are you able to say roughly how much has been involved in that since it started?

A. I believe it is approximately $50,000, a little bit more.

Q. And what's been your attitude to using a sum of that size for that purpose?

A. I'd rather not it be spent on that, but I feel that it is safer than him using it gambling away in his share trading.

Q. When he's on the computer buying bank notes or coins, have you seen him?

A. Yes, I have

Q. And what, if any, interest do you notice he displays in that sort of activity?

A. I'm sorry, I don't understand that. The degree of interest?

Q. Yes, does he seem interested or not? What's he doing when you've seen him on the computer? What's on his face?

A. He stares at the monitor and I see him clicking away, but some days he does show interest, some days it seems that it is just another thing he does. From what I can observe.”

The evidence of Dr Parmegiani, consultant psychiatrist

78. Dr Parmegiani gave oral evidence in addition to providing his medical reports (Exhibit C, 20 October 2008, 2 December 2009, 8 February 2011 and 5 October 2011).

79. In evidence in chief, he said that he had been provided with the report of Moser Bland & Co dated 30 June 2011. The report set out amounts, numbers, dates of trades etc in relation to the plaintiff’s post-accident trading activities.

80. Dr Parmegiani was asked a question about the report (t.231-233):-

“Q. In what way at all, if at all, doctor, does that information cause you to reconsider your opinion?

A. It doesn't.

Q. Can you tell me why?

A. It appears to me, and I'm not an expert in share trading, but it appears to me to be a fairly purposeless compulsive behaviour of the same type as gambling that is often observed in depressed people. It looks like this‑‑

OBJECTION

…

Q. Could you go on with that answer, doctor?

A. I've assessed a number of depressed individuals who spend a significant part of their day in a trance like state gambling either in front of poker machines or trading or doing obsessive behaviours which distract them from the reality of daily living.

Q. He has described to us in the witness box, doctor, that particularly when consuming alcohol he has been doing this trading but the next day can't remember what trades he has done and is surprised by what has eventuated?

A. It is quite common, even in the absence of alcohol, for people to be in a disassociated state where they don't actually engage at an intellectual level with what they are doing. They are just sitting there either pressing a button or using mouse clicks for hours on end without really having much purpose to it except for, I presume, a distraction from their real life.”

81. In cross-examination, Dr Parmegiani said that a copy of the report of Moser Bland & Co had been received by him the previous afternoon. He was asked in cross-examination (t.234-235):-

“Q. And what part of that report did you look at before coming to the opinion you have now expressed?

A. I read the whole report and the consultant's comments but the thing that struck me was the amount of share trading that was happening, it wasn't what I initially thought to be, a little share trading, which I record in the context of a more comprehensive interview. There was actually a lot more to it and it was an eye opener for me to read that document.

Q. So the volume of trades was something that struck you as being important?

A. Yes.

Q. Are you a share trader?

A. No.

Q. Do you have any expertise in what share trading might involve?

A. I do but not with Contracts for Difference.”

82. Dr Parmegiani stated his understanding that CFDs were a leveraged investment instrument.

83. He was asked in cross-examination (t.235-236):-

“Q. Are you able to compare the volume of trades performed by Dr Tan with any other kind of benchmark say by another share trader?

A. With professional share trader?

Q. Any share trader?

A. No, there is a difference. There is professional share traders as defined by the ATO and people like me who dabble. People with superannuation funds who dabble and try to run some sort of investment scheme as part of their savings plan. In terms of looking at the larger picture of this man being a doctor who is suffering from a chronic depressive illness‑‑

Q. I don't want you to divert from the question‑‑

HIS HONOUR: No, Mr Poulos?

Q. Yes, you can continue?

A. I am comparing this man to the average depressed patient who is not working and seems to be gambling thousands of dollars, and not particularly making any profit. I was I guess surprised by the amount that he is actually losing in these trades.

POULOS

Q. Are you able to return please to the question I asked you? Are you able to compare the number of trades done by Dr Tan with anybody else's number of trades?

A. Not in a specific term. I don't collect that kind of data. I know the share trader's professional ones do many, many trades, possibly many more than Dr Tan during a day.”

84. Dr Parmegiani was then asked whether the plaintiff had classed himself as a professional share trader for taxation purposes. It was put to him in cross-examination (t.236):-

“Q. And he has claimed in the past deductions against wages he has earnt by using share losses, you know that, don't you?

A. I accept that.

Q. Do you?

A. Yes.

Q. So we have to compare or we have to treat Dr Tan, do we, as a professional share trader?

A. I am not sure he has claimed that but I am not sure that has been accepted because I understand the Tax Office has a number of tests to prove whether someone is a professional share trader or an investor, and I am not sure if he has undergone those tests to show a pattern of investing, possibly hopefully have shown a profit. I think that has been shown but if he has then I accept it.

Q. You have to, in your opinion do you have to show a profit before you can become a share trader?

A. No, but you have to show a pattern before you can claim as a deduction otherwise you can only claim the losses. “

85. A little later, he was asked (t.237):-

“Q. So you have no doubt in your mind now, have you, that he was trading shares professionally?

A. Again, I am not sure what you mean professionally. All I know is that he is trading a lot of shares and that I accept what you are saying, he was claiming to be a professional trader in the eyes of the Tax Office so that he can claim some losses.”

86. Later in the cross-examination (t.281):-

“Q. If you have to distribute possibilities along the continuum, one explained by illness and the other at the other end explained by duplicity, you would have to think that he if he couldn't tell you about a trade that he had done earlier in the morning before seeing you, that the more likely occurrence is that he is being duplicitous?

A. I think that both occur together. I think he is engaging in a compulsive behaviour, self destructive behaviour, that he is embarrassed about it and he is hiding it from others.”

87. Dr Parmegiani was questioned at length as to whether the plaintiff had deliberately failed to disclose to him his trading activities and the significance in terms of obtaining an accurate history and deriving a diagnosis. I will refer to some of this evidence below.

88. The last answer quoted above was challenged upon the basis that it was mere speculation by Dr Parmegiani (t.281):-

“Q. You would freely concede that that thought is one that's based entirely upon speculation?

A. Not necessarily. I think it is based on my experience and the report of your consultant.

Q. Of what?

A. Your consultant's report, the financial report.

Q. You mean the accountant?

A. The accountant, yes.

Q. Whereabouts does he say that his behaviour was compulsive?

A. What he is saying is he is conducting an enormous number of trades per day without any understandable pattern and certainly with no profit and a significant loss.

Q. But you are not qualified to say whether or not that particular proposition is correct or not, are you, because you don't know anything about share trading per se or CFDs?

A. No, I'm relying on your accountant statements that he couldn't detect a pattern.”

89. It was put to Dr Parmegiani in cross-examination that the number and period of trading activities was not consistent with somebody who was not aware of what they were doing (t.282):-

“Q. When you look at the amount of trades over a period of time, I have read out to you a number of them, it doesn't seem to indicate a person who is, for want of a better word, comatose or drunk or affected by a state to the point where he couldn't raise himself to do anything?

A. I disagree.

Q. How is it possible then for a person to trade that number of times during the day, the actual day he sees you and come to see you and tell you about his affairs and yet still be at a very, very low level of functioning?

A. When you look at the mechanics of trading all you need to do is log in online and press a button buy or sell. That is if you are just trading. If you are actually doing it properly then you need a whole lot of research. You need to read, you need to understand what you are doing. But I have no evidence of that.”

90. I have referred earlier to the plaintiff’s evidence as to the basis for his trading which was to the effect that he did not research the companies in respect of which he was considering purchasing derivatives or shares and he did not evaluate for himself data which would bear upon the risks of buying derivatives either on a short or long basis. His evidence, referred to earlier, is to the effect that he would follow or adopt the suggested or recommended “buys” in the newsletters that he received. The plaintiff’s evidence was not to the effect that he elicited financial data for himself or made an evaluation of market or corporate performance relevant to risk. The plaintiff’s evidence was to the effect that he, in fact, had “no system” or methodology.

91. The evidence does not establish that the basis or the facts upon which the plaintiff acted in trading was other than he stated in evidence. In particular, the information adduced by the plaintiff in relation to the plaintiff’s trading activities did not point to the fact that the plaintiff operated according to a “system” or was based upon independent research or analysis or was other than “buys” based upon suggestions or recommendations contained in the newsletters referred to in evidence.

92. The last-mentioned line of cross-examination was further pursued with Dr Parmegiani (t.282-283):-

Q. You have got no evidence of that at all?

A. Not from this report, no.

Q. So what do you need to know?

A. First of all, your accountant qualifies his opinion in stating that he is not an expert in contracts for difference. He relies on 25 years experience with clients. I think it would be valuable to obtain the opinion of someone who is an expert in CFDs and then apply his or her knowledge to what he is doing and say, yes, this is automatic behaviour without any judgment or sense or, no, this is a fairly well planned‑out, goal driven behaviour with clear methodology behind it. I am not in a position to say that.

Q. So because you are not in a position to say that, your opinion must necessarily be a tentative one?

A. It is a derivative opinion.

...

Q. What else would you need to know, leaving aside the expert who might one day look at these figures or he might not? From a psychiatrist's point of view, would you want to know, as I take from your answers here this morning, about what plans, what information, what research is carried out by Dr Tan? You would, I suppose, want to know whether or not he consulted professional services who advise on the trading activities?

A. Yes, whether he had consulted, read material, researched companies, basically obtained information which would tell me as a psychiatrist that his level of concentration was up to it.

Q. Did you make any enquiries when this report was handed to you as to whether or not that was the case?

A. I have not seen Dr Tan since I received this report.

Q. Has any further material been put to you before you came into the witness box that might be significant material for you to consider in that particular area?

A. No.”

93. It was also put to Dr Parmegiani that the plaintiff’s condition may have been caused or was explicable by reason of his unsuccessful trading (t.301-302):-

“Q. If he had been successful in his trades you would have expected him to have a remission of these symptoms, wouldn't you?

A. Sorry, I'm not sure I follow the proposition?

Q. If he had been successful in making money you would have expected him to have a remission in his symptoms?

A. No, not necessarily. It could have helped his mood, but I have seen ‑ I have had one patient who was treated for depression‑‑

Q. I know you are going to give me an example but we have a limited amount of time. If he suffered losses and had an expectation that he might suffer more losses and loose his wife's money, that is the kind of life event and stressor that can precipitate a previously disposed person into depression isn't it?

A. Yes.

Q. I want to suggest to you, Doctor, that in the absence of a proper and full evaluation of this man's statements and activities over the past now six years, you are really not in any position to put an affirmative position for his case, are you?

A. Well I disagree. I think I still stand by my opinion.

Q. Even though it is based upon a very flimsy basis?

A. I have seen nothing to suggest that he was a professional organised share trader or CFD trader.

Q. So if that material was put before you then you would have to re-evaluate your position, would you not?

A. I would have to accept it.

Q. If you accepted that he was cognitively able to pursue these trades on a weekly basis?

A. Yes.

Q. That he did it from time to time for long hours and made considered decisions during those hours, then would you have to resile from the button pushing compulsive gambler thesis?

A. I would be persuaded if he were a professional trader, the implications are as a professional he would derive a living from it. If he were to make some money from this activity then he would be truly have been a professional trader and I would have to agree that was his occupation.”

94. It was put to him that his assessment would be dependent upon the various statements made by the plaintiff to him which he accepted and that if the plaintiff was proven to be an unreliable historian, then the information would have be re-evaluated (t.302).

95. Mr Parmegiani’s attention was drawn to a number of trades that the plaintiff had undertaken prior to seeing him in July 2008 (t.243):-

“Q. What I wanted to draw you attention to was a number of trades that were conducted in the months before he saw you, did you notice that, for example, in the month of July 2008 there were 250 trades?

A. I do now.

Q. And that had a turnover of some $17 million?

A. Yes, I can see that.

Q. You make an expression that is half a laugh, does that mean to say that that is an outstanding figure to you?

A. I think he has lost the plot.

Q. Why so doctor?

A. Because he is trading enormous, almost unbelievable amounts of money from simply by sitting in front of his computer and clicking the mouse. 250 times in one month just sitting there is, to me, equivalent to someone sitting in front of poker machine, just pressing a button over and over.”

96. Dr Parmegiani was questioned on the basis of an absence of full disclosure to him of the plaintiff’s trading activities (t.276-277):-

“Q. Could you countenance the proposition that Dr Tan might have deliberately held information back from you?

A. Yes.

Q. If so, what would that imply?

A. Well, number one, he is ashamed of his behaviour, highly embarrassing having lost such a large amount of money in such a way, as often people don't admit to their risk taking behaviour during an assessment, particularly self destructive behaviours and it is only direct and repeated and questioning that brings out a response.

Q. That's a possibility?

A. That's ‑ well, I think that's the most likely possibility that he may very well have been embarrassed about this activity.

Q. That evidence is not forthcoming from him?

A. No, no, it's by omission. He did not volunteer the number or the amount of trades and the volume of trades. When I asked him what he did during the day he just mentioned some share trading.

Q. When did he mention that?

A. It is in my report.

Q. The last report?

A. The last report.”

97. It was then put to Dr Parmegiani another possibility was that the plaintiff had decided to hide his share trading activities. Dr Parmegiani accepted it as a possibility (t.277). Dr Parmegiani accepted that had he known the full extent of trading it would have been open to him then to pursue further questions. In later evidence he said that it was his understanding that the absence of research, evaluation and discernment by the plaintiff in his trading activities, if shown to be the case, the evidence as to the plaintiff’s trading would not cause him to alter his opinion.

Analysis

98. I had originally proposed to the parties that I would complete the hearing before determining the notice of motion. However, on the defendant’s application, I determined not to follow that course and, as requested by the defendant to hear the notice of motion before the completion of final submissions in the principal proceedings.

99. Although the subtitle to s.111 is expressed as “significant new evidence”, the terms in which s.111(2) is expressed refer to “significant evidence” which, by s.111(3), is given for the purposes of the section a particular meaning, namely, “… evidence that the court considers may have materially affected the assessment made by the claims assessor if it had been available to the claims assessor when the initial claims assessment was made”.

100. In applying the provisions of s.111 to “evidence” in a particular case for the purpose of determining the application, the issue of what, for the purpose of this judgment I refer to as the “material affect” issue referred to in s.111(3), involves an evaluation of the evidence by the Court as indicated by the phrase in the latter subsection “evidence that the court considers”.

101. In undertaking that evaluation, the Court is to direct attention to three matters:-

1. The evidence in question that has been “adduced in the court proceedings”.

2. That the “evidence” on a matter or matters “was not made available to the claims assessor”.

3. Whether or not, in the Court’s evaluation, the evidence could have materially affected the assessment made by the claims assessor if it had been made available.

102. The first and second matters require a determination of the matters in issue the subject of the assessment, in particular, whether evidence on relevant matters was made available to the claims assessor.

103. In relation to the plaintiff’s post-accident activities, both his engagement in post-injury work undertaken by him until 5 August 2008 (as a hospital medical officer and as a locum doctor) as well as his “share trading” (a term that was used to include his trading in CFDs) were made available to the assessor:-

1. The plaintiff’s statement (re-tendered in the present proceedings and marked Exhibit A2, paragraph 52).

2. The plaintiff’s wife’s statement.

3. The plaintiff’s income taxation (including business income) returns to 30 June 2008.

4. The Further Claimant’s Submission dated 15 March 2010.

104. In his oral submissions, Mr Lidden drew attention to the data disclosing that the plaintiff had expended hundreds of thousands of dollars in “share trading”. The records relating to such expenditure, he observed, were placed before the assessor.

105. Mr Lidden also observed, and not contradicted in the present proceedings, that the assessment proceedings were adjourned for the very purpose of further consideration of the share trading (transcript, 2 November 2011 at p.410).

106. Mr Lidden further noted that it was apparent from the assessor’s reasons (at p.17(d)) that he had received the Claimant’s Further Submissions (referred to above) and accepted that a net loss had been involved. Attention was also drawn to the assessor’s reference to the effect that whatever income had been received from share trading was irrelevant in calculating loss of income from the plaintiff working as a doctor (t.401).

107. The disclosures made in each of the income tax returns to the 2008 year, that is post-injury, were, it was emphasised, made and were in the possession of the assessor before the assessment was made.

108. The assessor, Mr Stern, in his reasons for decision (Exhibit B3) discussed the plaintiff’s share trading (p.16). As earlier noted, the assessor noted that the plaintiff had made a loss of about $300,000 in the period since the accident, adding “… it could not be said, as a whole, that his share trading has been successful. Rather the reverse”.

109. The assessor also noted that the information did not deal with the “tax consequences” of his share trading.

110. The following matters have been established by the evidence in this application:-

1. Prior to the assessment, there was disclosure by the plaintiff of the fact of his engagement in “share trading” in the period 2005 to the date of hearing.

2. For the purpose of the assessment, detailed financial information arising from that trading between the years 2005 to 2008 in the form of income/business income taxation returns had been made available to the assessor.

3. The assessor analysed that information as well as other information on the plaintiff’s share trading.

4. The assessor was in a position to and did make findings and express conclusions in relation to the share trading.

111. Furthermore, it is evident that such disclosure and information had been provided by the plaintiff’s solicitors to the defendant’s solicitors before and during the assessment.

112. How the defendant and the defendant’s legal representatives decided to utilise or deploy in the assessment such information was a matter for them to determine whether as a part of an affirmative case to be advanced on the defendant’s behalf or in a forensic fashion was, of course, entirely a matter for their judgment and consideration.

113. I turn to the third matter to which I have referred above.

114. In submissions on the present application, it has been put on behalf of the defendant that the plaintiff’s case is essentially a case based on the plaintiff’s alleged psychiatric condition, a condition of chronic depression. That, with respect, is not how the plaintiff’s case was conducted either in this Court or before the assessor.

115. It will be necessary at this point to refer to some of the matters considered and determined by the assessor. The assessor’s reasons and certificate were tendered on the present application and it has been necessary to refer to those reasons for the purposes of considering the present application. It need hardly be said that, if I proceed to determine judgment in the present proceedings, any observations, findings or conclusions made by the assessor have been necessarily used for the purposes of the present application and they have no relevance to and accordingly no account will be taken of them for the purposes of any final judgment in determining the rights of the parties in the present proceedings.

116. In both proceedings, evidence was adduced to establish both physical (spinal) injury and disability and a depressive condition. The issue as to the plaintiff’s undertaking share trading in the relevant post-accident years is to be seen in context, in particular, that context. It is evidence that the assessor ultimately accepted in respect of both the physical and psychiatric bases of the claim. As to the physical basis, so much is apparent from the assessor’s reasons at p.14.4, 14.9, 15.5, 19.4, 20.2 and 20.4.

117. The assessor’s reasons also refer to his determination that the evidence established that the plaintiff suffered from a psychiatric condition (12.8, 13.5). The psychiatric condition was stated by the assessor to be a secondary result of the accident (13.6).

118. The issue raised in the present proceedings has been pursued by the defendant upon the basis that the evidence of the plaintiff’s post-accident share trading of itself established that the plaintiff has been capable of performing, both from a cognitive point of view and generally, beyond the plaintiff’s accounts given to examining doctors and to the assessor.

119. The information as to his share trading as contained, for example, in Exhibits B1, the Moser Bland & Co report and the analysis prepared by the defendant’s solicitors (Exhibit 2), it was argued, was not available to the assessor and constitutes “significant evidence” in terms of s.111(3). It was also argued such later analyses undertaken after the assessment, the Court could consider to be information that may have materially affected the assessment made by the Claims Assessor.

120. Upon consideration of the evidence and the submissions made, I with respect, do not consider that the defendant has established either proposition referred to in the preceding paragraph.

121. As to the first, I have earlier referred to the disclosures made, the adjournment of the assessment so that detailed information on the share trading could be considered for the assessment, the evidence of share trading that was before the assessor and the reasons and findings of the assessor in relation to the share trading. There is no need to revisit here the matters earlier discussed in those respects.

122. As to the second, what I have earlier termed the “material effect” issue, there are a number of matters to be noted and taken into account in the consideration of whether the evidence in question may be considered to have the material effect referred to in s.111(3).

1. The defendant’s submissions relied very much upon details such as the volume of trades, the number of trades made on some days, in some months, the value of the trades, the nature of the trades and other details concerning the trading activities as reported upon by Mr Bland and as analysed in the Schedule, Exhibit 2.

2. The defendant relied upon the proposition that such evidence establishes that the plaintiff acted as a professional share trader throughout the relevant period.

3. The defendant submitted that the facts as to the trading analysed in Mr Bland’s report and Exhibit 2 demonstrated that the plaintiff had a capacity, in particular, the necessary focus, concentration and decision-making capacity of a share trader. Further, it was submitted such capacity established that he possessed the necessary capacities, abilities, skill and financial/investment acumen such as to undermine, what is in effect said to be, a false or misleading portrayal by him since at least 2008 to doctors, to the assessor and to others.

4. The proposition referred to in (3) is made upon the assumption that multiple trading by the plaintiff as established by the evidence over the relevant years effectively undermines or destroys the diagnosis made of the existence of a psychiatric condition.

5. The defendant retained Mr Bland on an unknown date but presumably some time in 2011. His report is dated 30 June 2011. The transcript reveals that the defendant had the plaintiff examined by a consultant psychiatrist, Dr Newlands. Whether Dr Newlands was furnished with information including Mr Brand’s report is, of course, unknown. Whether he was asked to assess the share trading evidence is also unknown. No report from Dr Newlands has been tendered either in the present proceedings or in the present application.

6. It is apparent from the reasons of the assessor that the defendant did not utilise the information made available to the assessor in relation to the share trading aspect in the manner the defendant has sought to do in the present proceedings.

7. The evidence of the plaintiff in these proceedings is that his share trading did not involve him exercising mental processes by way of studying the various investment factors associated with derivative trading, in particular, those that determine their performance including the risks associated with the relevant corporate entities. His information came from newsletters which he acted upon, as discussed above.

8. The “evidence” relied upon by the defendant is not consistent with the proposition that the plaintiff acted as a well-informed trader in high risk securities. The evidence on what he actually did comes from the plaintiff. The defendant did not adduce affirmative evidence to establish that the plaintiff’s trading could not have been upon the basis he stated (no system, no pattern etc).

9. Dr Parmegiani was cross-examined at considerable length as noted above. The proposition put to him that the plaintiff traded with focus, concentration and skill etc were rejected by Dr Parmegiani. The doctor stated that the information or “evidence” did not establish, in his opinion, any basis for altering his opinions expressed in his reports of 20 October 2008, 2 December 2008, 8 February 2011 and 5 October 2011.

10. The “significance” or otherwise of the evidence of the plaintiff’s share trading as part of the relevant history of a psychiatric condition is essentially a matter for the expert medical assessment and opinion of a consultant psychiatrist. Dr Parmagiani’s opinions have been noted above. The defendant has not sought to adduce for the purpose of the present application (or at all) any other expert psychiatric evidence as to the possible significance (or otherwise) of the share trading data either in the Bland report, the Schedule (Exhibit 2) or the oral or other evidence in the case.

123. On the present application, the defendant is, of course, the moving party for an adjournment order under s.111(2). As such, it is required, in my opinion, to demonstrate by evidence or otherwise that there is a proper basis for this Court concluding that the “evidence” in question “may have “materially affected” the assessment: s.111(3).

124. The expression “… may have materially affected” is a significant one for the purposes of s.111. The word “materially” carries its ordinary dictionary meaning of “in a material degree, substantially, considerably”: Oxford English Dictionary.

125. The share trading information could not, in my opinion, constitute evidence that is “significant evidence” within the statutory meaning given by s.111(3). Whether a person’s engagement in particular activities could materially affect an assessment under s.94 depends very much on precisely what the person did in the course of performing them, the conditions under which they were performed and, in many cases, on expert medical evaluation of the significance of such activities.

126. The only psychiatric evaluation of the plaintiff’s activities and the data relied upon by the defendant comes from Dr Parmegiani. That evidence did not support the issue of “materially effect” under s111(3). It strongly pointed in the opposite direction. It has not been suggested that Dr Parmegiani was other than a straightforward expert witness.

127. I should add that, in my opinion, it is not sufficient for a party to invite a court under s.111 to consider whether there is a theoretical or remote possibility that evidence may have materially affected the assessment made. The terms of s.111 and the objects of the Act, in particular, s.5(1)(c), indicate the approach under the section involves an evaluation as to whether the court considers the evidence may have materially affected the assessment made by the claims assessor having regard, in particular, to the evidence that was, in fact, made available to the assessor. In making that evaluation, expert opinion evidence as to the possible significance or otherwise of the evidence bearing upon an alleged psychiatric condition of a claimant/plaintiff as in the present case, may be critical.

128. Apart from the issue of share trading, the written submissions for the defendant contended that there was “new evidence” as to other matters such as work periods, payment made for work and wage loss prior to the assessment but which was not being tendered in the proceedings in the Court.

129. The issue heard and determined by the Assessor was, of course, a claim based on pre and post-injury earnings of the plaintiff for past and future economic loss and, in that respect, the reasons of the Assessor indicate that there was made available to him material bearing upon those issues. The fact that any such material has been updated for present purposes could not, in this case, be suggested as “significant evidence” for the purposes of s.111(3). No attempt was made to demonstrate how or on what basis any such conclusion could be formed.

130. It was also submitted in the Defendant’s Outline of Submissions at [9] that Dr Parmegiani had said that the evidentiary material that went to share trading activities as at the time he saw the plaintiff was material and would require the review of his opinion and that the ultimate diagnosis depended on forensic “medico-legal” considerations.

131. The evidence of Dr Parmegiani in relation to the issue of share trading has been referred to above and certain parts of his evidence has been extracted above.

132. The statement at [9] of the written submissions for the defendant, with respect, is not accurate insofar as Dr Parmegiani indicated that if the basis upon which he was proceeding, namely, that the nature of the plaintiff’s share activities was not as has been described in his evidence, then he would be required to reconsider his opinions as expressed in his report. However, as stated above, there is no evidence of a factual nature which establishes that the plaintiff’s trading activities were conducted other than in the manner and on the basis that he described in evidence. Additionally, Dr Parmegiani stated that the continuous sustaining of losses, there being no pattern or methodology involved in his trading, conformed to the category of persons who suffer from a depressive condition engaging in repetitive conduct such as gambling.

133. A further matter raised in the submissions for the defendant concerned the notes of Dr Koziol. In this respect, I was taken in oral submissions to p.41 of Exhibit B1 being one page in the handwritten notes of Dr Koziol. The particular entry stated:-

“PG [apparently a reference to the plaintiff] … has given up on medicine. Currently a trader CFDs (equities); has $500,000 portfolio.”

134. In oral submissions, Mr Poulos indicated that this entry showed that the plaintiff had decided to give up the practice of medicine at that time.

135. In this respect, reference was also made to an entry at p.36 of the St John of God Hospital progress notes which stated:-

“’Disillusioned’ with medicine and his career prospects. He would prefer to be a day trader but needs capital – he is currently locked into large opposing CFD positions …”

136. The first entry to which I have referred above appears in the notes of Dr Koziol dated 23 September 2009. The second relates to the progress notes of St John of God Hospital on 2 November 2009.

137. The last-mentioned entry by Dr Koziol records that the plaintiff, by that time, had taken to drinking and had developed an alcohol abuse problem (he, before the accident, not being a consumer of alcohol or any large quantity). The reference also contains a reference to various symptoms including the word “miserable”. It is clear that, by 23 September 2009, Dr Koziol was proceeding upon the basis that he was treating the plaintiff for a psychiatric condition and his statements recorded in both Dr Koziol’s notes and the notes to which I have referred of St John of God Hospital have to been in context of the comments of a patient who was, at the relevant time, accepted by those treating him as having a depressive condition.

136. I do not consider that the defendant has established that the above entries constitute “significant evidence” for the purpose of s.111(3). I note in that respect also that evidence such as the evidence in question had not been adduced in the proceedings by the plaintiff nor is relied upon by the plaintiff for the purposes of the assessment of his claim. The notes have been introduced into evidence by the defendant partly to support the present application. I do not consider that there is any basis upon which the Court could consider such material of a kind that “may have materially affected the assessment made by the claims assessor” within the meaning of s.111.

137. In the written submissions, reference was made to the joint opinion of Associate Professor Spira and Dr Lorentz dated 15 October 2011. It was said that this joint opinion was not available at the time of assessment. That is true as it was obtained for the purposes of the present proceedings.

138. The joint report (behind Tab 18 of Exhibit B1) does not, in my opinion, constitute evidence to which s.111 applies. In particular, it has not been demonstrated how or on what basis that evidence could be regarded as probative of anything which could lead to the conclusion by this Court that it may have materially affected the assessment.

139. An examination of the joint report reveals the points of agreement and the points on which the doctors do not agree. In that respect the issue as to whether or not the C3/4 disc protrusion ante dated the accident or was rendered symptomatic was a view expressed in a medico-legal report obtained by the defendant following Dr Spira’s initial report of 13 May 2011.

140. The reasons of the assessor reveal that he closely examined the radiological and other specialist evidence bearing upon the nature of the plaintiff’s spinal condition. Whatever the pathological basis for it, the assessor determined that the injury had produced ongoing symptoms. That evidence, according to the joint report, remained the opinion of Dr Lorentz.

141. The joint report also referred to the agreement between Dr Lorentz and Dr Spira as to the plaintiff’s presentation exhibited “a significant psychological overlay” that is consistent with the approach taken by the assessor and does not advance or detract from the basis on which the assessor proceeded.

142. The joint report also referred to Dr Lorentz’s opinion as to the plaintiff’s physical capacity as being subject to some restrictions as stated in .5 of the joint report. That is also consistent with the evidence upon which the assessor proceeded. The opinion of Dr Spira which departs from that of Dr Lorentz, is expressed in terms that are not supported and there is no analysis in the joint report which satisfies the Makita requirements. In other words, Dr Spira does not identify the subjacent matters that support the conclusion he has expressed on the issue of work capacity.

143. The defendant has not identified how or in what way the reports of Dr Spira address matters that are such as to fall within the description of significant evidence of s.111.

144. A further matter raised in the submissions for the defendant was the evidence of Ms Swinnerton of the agency, Austwide.

145. The submission in this respect was that the plaintiff adduced evidence from Ms Swinnerton which spoke of events occurring before the date of assessment. Those records were tendered in the course of Ms Swinnerton’s evidence which went to hours of work and cancelled appointments, in part due to the worsening of complaints by the plaintiff.

146. The submission was that such evidence, including the documents produced, would have been “material” upon which the assessor could weigh when considering the question of work capacity in 2005 to 2008.

147. Again, the defendant has not established, in my opinion, any basis upon which such evidence could be considered to fall within s.111(3). The submissions, with respect, do not address how and on what basis the assessment could have been “materially affected” by such evidence. The assessor’s reasons proceeded upon the basis that there was material which supported the plaintiff’s claim in the various respects referred to in the Assessors’ reasons. Any other evidence such as Ms Swinnerton gave only gave to support and confirm the assessor’s assessment and did not undermine or detract from the basis of that assessment.

148. Accordingly, for the above reasons I consider that the application must be dismissed.

Orders

151. I make the following orders:-

1. The Notice of Motion filed 2 November 2011 is dismissed.

2. Costs of the Notice of Motion reserved.

152. I will hear any submissions on the question of costs on a date and time that is convenient to the parties.

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Decision last updated: 13 September 2018