AAI Limited v Ali

Jurisdiction

1. The first issue that arises is whether the matters are justiciable in the exercise of the Court's judicial review jurisdiction.
2. These proceedings invoke s.69 of the Supreme Court Act 1970 and the judicial review and supervisory jurisdiction of the Supreme Court as recognised by s.73 of the Commonwealth Constitution: Kirk v Industrial Court of NSW (2010) 239 CLR 531; Hon JJ Spigelman AC, "The centrality of jurisdictional error" (2010) 21 Public Law Review 77.
3. AAI submitted that it was appropriate for it to wait until the outcome of the review decision before commencing judicial review proceedings to contest the underlying medical assessment decision. AAI relied on Rodger v De Gelder (2011) 80 NSWLR 594 at 614 [91]-[92] (Beazley JA with whom McColl and Macfarlan JJA agreed). I do not understand this aspect of the matter to be contested by the defendants, and do not consider that I am required to make a finding as to this matter. However, if I am wrong, it seems to me that exhausting avenues of internal review and bringing all claims for judicial review together in a court, is consistent with the just, quick and cheap resolution of matters under s.56 of the Civil Procedure Act 2005 (NSW)

Assessment Decision - Dr. Cameron's Certificate

1. The further certificate of Dr. Cameron was required to consider whether the degree of permanent impairment of Mr Ali as a result of the injury caused by the motor accident was greater than 10%.
2. On 16 July 2013, Mr Ali attended MAA at the request of the MAS for the purposes of further assessment. Dr. Cameron considered the following injuries to be assessed; a head injury, back injury and right shoulder injury due to a fracture.
3. Dr. Cameron considered Mr Ali's pre-accident history and relevant personal details. Mr Ali was educated in Iraq and was a Captain in the Iraqi Army. He could not remember when he had moved to Australia although information from his wife was that the family had emigrated to Australia in 2003 and, since then, Mr Ali had been working 16 hours a week collecting shopping trolleys and studying English. Mr Ali stated that he was aware that there was video surveillance of him.
4. In his report, Dr. Cameron details that Mr Ali has continuing symptoms.
5. In his clinical examination of Mr Ali, Dr. Cameron concluded that Mr Ali was "inconsistent in his presentation" and that Mr Ali had attributed this to pain and the long term effects of his brain injury. Dr. Cameron conducted a Mini-Mental Status Examination and noted in his report that Mr Ali: "[…] appeared to have substantial difficulties with orientation in time and place, registration, concentration, arithmetic tasks and executive tasks. He scored 10/30 on Mini-Mental Status Examination which is a severely abnormal score. It is my opinion that this is not a valid score."

Application of legal principles to the assessment decision

Irrelevant considerations

1. AAI contends that Dr. Cameron failed to have regard to relevant considerations, or had regard to irrelevant considerations, and that this amounts to jurisdictional error. Mr Robinson, senior counsel for the plaintiff, argues in support of this contention that: 1. All of the material that was in the medical assessment application before Dr. Cameron should have been taken into account; and 2. Dr. Cameron was bound to comply with the Medical Assessment Guidelines dated 1 October 2008 by reason of ss.44(1)(d) and 65(1) of the Act, and the Permanent Impairment Guidelines ("PI Guidelines") dated 1 October 2007. [1]

Material taken or not taken into account

1. AAI argues that the material before Dr. Cameron included a significant amount of material to the effect that Mr Ali was an unreliable witness. In particular, numerous reports of MAS assessors indicated that Mr Ali was, for example, "manifestly unreliable" (Ex PWU). Notwithstanding this, Dr. Cameron proceeded to rely on Mr Ali's subjective reporting in order to apply the Clinical Dementia Rating Scale (contained in the PI Guidelines).
2. AAI submit that the unreliable, subjective evidence of Mr Ali was an irrelevant consideration and reliance upon it by the assessor amounts to a jurisdictional error: Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; (2012) 61 MVR 245. Further, in circumstances where the subjective evidence is unreliable, only the objective evidence should have been considered. It is submitted that these are matters of law and not of merit.
3. Mr Ali argues in reply that the plaintiff's case relating to relevant and/or irrelevant considerations clearly elaborates upon circumstances that go to the merits of his claim. Mr Ali argues that the numerous reports of MAS assessors referred to by the plaintiff were dealing in an area that was not the same as Dr. Cameron's area of consideration. They could not bind him within the assessment he was charged with undertaking. The relevance of those opinions was only ever a matter of judgment for Dr. Cameron. Therefore the submission by the plaintiff that Dr. Cameron could not rely on Mr Ali's evidence is misplaced. It is submitted that the assessor did precisely what he was required to do as an expert medical practitioner.
4. Counsel for the defendant argued that it followed that unreliable evidence does not cease to be relevant. Such evidence remains relevant but its weight depends upon what a tribunal of fact makes of the relationship between that evidence, objective or reliable evidence and matters of fact not in issue.
5. Mr Ali argues that the plaintiff did not cite authority for the proposition that, in circumstances where subjective evidence is unreliable, only objective evidence should be used. Further, that proposition fails to account for the fact that the process is evaluative and takes place within heavily regimented guidelines.

The Guidelines

1. Next, AAI claims that in the event that Dr. Cameron was entitled to rely on the subjective evidence of Mr Ali, he was still required to conduct the assessment in accordance with the PI Guidelines.
2. The PI Guidelines relevantly provide, at clauses 1.33-1.35, that: "[…] If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored. The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. […] The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments. […]"
3. Mr Robinson argues that Dr. Cameron did not take into account the pre-accident material or physical condition of Mr Ali, and failed to consider what deduction or apportionment should be made for such conditions.
4. The evidence before Dr. Cameron included clinical notes from Dr. Soliman, pre-dating the motor vehicle collision, which noted that Mr Ali was severely depressed, irritable, forgetful, demoralised, lacking in energy, having decreased libido, and suffering from headaches. In his report, the plaintiff contends that Dr. Cameron makes no reference to the clinical notes of Dr. Soliman. Instead, AAI argues that Dr. Cameron takes a contrary view by stating that "[a]part from the brain injury Mr Ali said his health was good". Further, under the heading "pre-existing/subsequent impairment" Dr. Cameron indicated that it was "not applicable".
5. The plaintiff argues that the failure to have regard to these pre-existing conditions is a failure to have regard to relevant considerations, and has resulted in a failure to properly apply the PI Guidelines.
6. Mr Ali in reply submits that Dr. Cameron considered the reports given to him and was aware of the material touching on the suggestion of pre-existing impairment. It was submitted that there was no evidence of Mr Ali having any neurological impairment prior to the subject accident.
7. In response to the submission of the plaintiff that Dr. Cameron indicated "not applicable" next to the heading "pre-existing/subsequent impairment", Mr Ali argues that this means Dr. Cameron considered the issue.
8. Finally, Mr Ali claims that there was no "objective evidence" of a symptomatic permanent impairment as required by the PI Guidelines.

Failure to perform statutory duty

1. The plaintiff claims that the PI Guidelines required Dr. Cameron to assess whether the impairment was caused by the accident.
2. Clauses 1.7-1.9 of the PI Guidelines set out the test of causation, that is, whether the alleged factor could have caused or contributed to the worsening of the impairment, and whether the alleged factor in fact did cause or contribute to the worsening of impairment. Clause 1.9 specifies that the test involves considering whether the injury was "materially contributed" to by the motor accident, and that the accident does not have to be a sole cause as long as it is a contributing cause.
3. The plaintiff contends that reliance on Mr Ali's self-reporting for the purposes of calculating impairment was inconsistent with the statutory regime under which the assessment was to be conducted. This failure, it was argued, amounts to a failure to perform a statutory duty under s.62 of the Act, and the decision is ultra vires: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 at [183] and Minister for Immigration and Multicultural Affairs and Bhardwaj (2002) 209 CLR 597 at [51]-[53].
4. Mr Ali contends that Dr. Cameron clearly applied the test of causation, because there was documentary evidence available, which was in no way dependant on Mr Ali's reliability.
5. Finally, the plaintiff claims that there was a constructive failure by Dr. Cameron to discharge his statutory function which gives rise to an invalid decision: Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231 at [58]-[62]. Mr Ali denies that there was a constructive failure.

Failure to give reasons

1. Further and in the alternative, if Mr Ali's subjective evidence was a relevant consideration, the plaintiff contends that Dr. Cameron was required to give reasons as to whether any of the evidence was accepted. The plaintiff relied on s.61(9) of the Act.
2. However, Mr Ali argued that the reasons were ample, and relied on Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291 to support the proposition that reasons of an assessor should not be scrutinised by over-zealous review in order to glean some inadequacy.

Legal unreasonableness

1. Relying upon Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 the plaintiff argues that, because of the asserted failures set out above the assessor's decision is infected by error and is legally unreasonable as a consequence. The defendant does not admit the existence of error, and nor the conclusive contention of legal unreasonableness.

Review Decision - proper officer's Statement of Reasons for decision application for review

1. The plaintiff contended that the proper officer failed to perform her statutory duty when a review was requested under s.63 of the Act. In particular, the plaintiff claimed that the proper officer's decision was not an answer or response to the application for review, but instead was an extended and partial explanation of the initial decision. The plaintiff also claimed that the review decision should be invalided for legal unreasonableness.
2. Mr Ali argued that the proper officer clearly engaged with the plaintiff's application, and that the plaintiff did not identify what was the material respect in which the assessment decision was incorrect. Therefore, the correctness of the review decision must depend on whether there was an error in Dr. Cameron's assessment.

Consideration

1. The motor accidents compensation scheme was established, at least in part, to provide a mechanism for the assessment and payment of proper compensation to persons injured in motor vehicle collisions, without need for extensive (and expensive) litigation in the courts. The insurer is obliged by the Act to endeavor to settle claims justly and expeditiously. The claimant is obliged to fully cooperate with the assessment of the claim to facilitate its resolution.
2. The statutory function of those who assess the claim is to do so in accordance with the guidelines as promulgated from time to time (ss.44(1)(d) and 65(1)), and by having regard to all relevant evidence (ss.58 and 61). To ensure that the assessment process is transparent, assessors must issue a certificate pursuant to s.34 of the Act in which reasons for the assessment are clearly stated.
3. The "proper officer" of the second defendant is appointed pursuant to the Act and has statutory functions and obligations. The proper officer must also exercise his or her statutory functions in accordance with law.
4. The plaintiff's principal complaint here is in relation to the process of assessment undertaken by Dr. Cameron; if that process is held to be invalid, any basis upon which to uphold the process of review conducted by the proper officer falls away. For that reason, it is proposed to consider the complaints relevant to the assessment process first, that being the approach adopted by the parties.
5. The challenge to Dr. Cameron's assessment relates, in summary, to his purported failure to properly resolve the question of malingering on the part of the first defendant. There was evidence before the assessor that suggested that the first defendant's claimed impairment was exaggerated and, insofar as it did exist, was either wholly or in part attributable to pre-existing injury or impairment. The plaintiff's claim is, when reduced to essentials, that the assessor did not properly determine the issue in dispute between the insurer and insured as to the extent of any impairment and its attribution.
6. The issues raised at [9] of the plaintiff's summons deal with considerations relevant to the resolution of these questions. It is pleaded that the assessor did not resolve these issues in accordance with his statutory function and thus the assessment is ultra viries and invalid.
7. The defendant's response, also reduced to essentials, is that these are complaints which go to the merit of the defendant's claim rather than to the legality of the assessment and review process and, as such, they are not amenable to judicial review.
8. The distinction between matters solely relevant to the merit or otherwise of a claim, and those relevant to the validity of a determination at law can be finely drawn and, at times, illusory. Inevitably, there is a degree of overlay of the one upon the other, particularly so since questions of decision making are inextricably linked to the evidence upon which the decision is based.
9. Here, the question is whether or not the assessor dealt fully and properly with the evidence upon which determination of the claim had to be based, with a proper level of exposition of process and conclusion.
10. There was, without doubt, a significant question over the validity of Mr. Ali's claim, in regards to both the origin and extent of permanent impairment. That would suggest that this was an aspect of the claim which had to be carefully considered during the assessment process and resolved on the basis of all relevant evidence. It also suggested the need for both thoroughness and clarity in setting out the basis upon which the resolution of the matter was made. In my judgment, those things did not occur here.
11. On the evidence available to the medical assessor, there was pre-existing impairment suffered by Mr. Ali.
12. The defendant had suffered terribly in his native Iraq prior to fleeing persecution in that country, and was left with some and perhaps significant impairment as a consequence of his experiences there. That impairment was well documented, with medical reports available to the assessor which detailed the defendant's condition previous to the motor vehicle collision in November 2006. Further assessments conducted in the months following the motor vehicle crash referred to the likely contribution of pre-crash injuries to post-crash impairment.
13. The assessor was confronted with evidence which, on the one hand, dismissed the existence of any significant residual impairment attributable to the traumatic brain injury sustained in the collision (such as the report of Dr. Spira of 21 June 2013) and, on the other, accepted that there was significant brain injury (such as the report of Dr. Teychenne of 27 May 2011).
14. The mini-mental status assessment administered by Dr. Cameron itself pointed to malingering, in that the defendant presented as "severely abnormal", that being a degree of abnormality greater than that which the defendant's injuries could account for. The score was ultimately regarded by Dr. Cameron as invalid.
15. The medical evidence fell to be assessed in the context of a deal of other evidence relevant to the reliability of the defendant as a witness, and the reliability of his wife in the same capacity. The reliability of the defendant in particular was an important feature of the assessment process, since parts of it required reference to and likely reliance upon subjective information from the defendant. Clearly, unreliability in the latter could lead to illegitimacy in the former.
16. Of some significance in resolving the evidentiary dispute as to impairment was evidence adduced by the plaintiff including surveillance footage of the defendant functioning in the community in a manner wholly inconsistent with his presentation during medical assessments, and with his complaints of impairment. In that this evidence had about it a degree of objectivity not shared by the subjective reports of the defendant, it was of some significance to the assessment process. It was of particular importance to assessment of the permanence or otherwise of those of the defendant's injuries attributable to the 2006 crash.
17. Despite the apparent importance of this evidence, there is nothing in the certificate issued by the assessor that establishes that any, or any proper, regard was had to it. It was dealt with in two discrete paragraphs of the certificate of 16 July 2013 in these terms: "I have seen and considered the DVD / video / surveillance images (at p.2). […] Surveillance reports were provided […] There was a significant contrast between Mr Ali's abilities in the videos to those I observed at the consultation (at p.7)"
18. Dr. Cameron did not say what, if any, conclusions he had drawn as a result of seeing and "considering" the surveillance images. As the plaintiff contends, the assessor's certificate does no more than refer to the existence of the evidence; it does not deal with its significance or the implications of it in any clear and transparent way.
19. Particularly having regard to the centrality of the issue of malingering to the proper resolution of the claim of impairment, more was required.
20. Without doing more than adverting to the existence of such greatly contradictory evidence, the assessor set out his conclusions as to impairment by means of allocating a rating given with reference to the Modified Clinical Dementia Rating Scale: "Memory (M) 0.5 (based on the clinical information and examination) Orientation (O) 0.5 (there is apparently some difficulty with time relationships) Judgment and Problem Solving (JPS) 0.5 (there appear to be difficulties) Community Affairs (CA) 0.5 (based on available information there are restrictions) Home & Hobbies (HH) 0.5 (based on the available history there were some restrictions that relate to the brain injury) Personal Care (PC) 0 (there are no restrictions in personal care)."
21. These ratings must necessarily be based upon an acceptance of the subjective account of the defendant (and his wife) as to the nature and degree of the impairment he claimed to suffer. The ratings allocated to "Orientation", "Judgment and Problem Solving", "Community Affairs", and "Home and Hobbies" clearly rely substantially if not wholly upon the defendant's self report, and the report of his wife. Since the reliability of the defendant's evidence was very much in dispute, and there was independent evidence - including the mini-mental status examination administered by Dr. Cameron - that was capable of impugning the defendant's credibility, some explication of the assessor's reasoning process was required.
22. It is open to conclude that the evidence pointing to malingering was simply passed over, without being taken into account by the assessor. Whilst that may or not be so, in the absence of any account of the reasoning process undertaken by the assessor, or of any account of the evidence accepted and rejected by him during the assessment, it is not possible to know the reality of the situation.
23. An assessment under the Act must be transparent. The failure to fully state the evidence taken into consideration, and the basis of the assessment made, amounts to error of a sort amenable to judicial review.
24. The assessor also failed to address and resolve the dispute between the parties as to pre and post-crash impairment. Although there was evidence which clearly raised that issue as one for determination, and the insurer disputed the claimed level of post-crash impairment attributable to the motor vehicle collision, the assessor has not dealt in his certificate with the extent to which any impairment can be attributed to the 2006 collision or, alternatively, was extant prior to the crash.
25. As is required by the guidelines, and in determining the dispute on this aspect of the matter between the parties, it was necessary for the assessor to deal directly with this contentious aspect of the claim. Whilst noting medical evidence of pre-crash impairment, Dr. Cameron did not determine to what extent if any the defendant's impairment was to be attributed to his traumatic experiences in Iraq, pre-dating the motor vehicle collision.
26. These errors establish a failure to consider all relevant evidence in accordance with the assessor's statutory obligations, and a failure to expose the reasons for the assessment decision pursuant to s.61(9) of the Act.
27. These failures must invalidate the assessment.
28. On that basis, the plaintiff's complaint with respect to the assessment of the defendant's claim is made out.
29. Without dealing with the arguments in detail (it being unnecessary to do so) it follows that, in view of my conclusions as to the invalidity of the assessment, the s.63 review by the proper officer must also be invalid, as it was based upon an invalid assessment.
30. On that basis the assessment and review must each be set aside.

orders

1. The orders the Court makes are these: 1. Time for the commencement of these proceedings is extended to 28 January 2014. 2. The decision of the third defendant, the medical assessor of the second defendant, of 16 July 2013, made pursuant to the Motor Accidents Compensation Act 1999, is set aside as invalid. 3. The decision of the proper officer of the second defendant of 5 December 2013, made pursuant to s.63 of the Motor Accidents Compensation Act 1999, is set aside as invalid. 4. The matter is remitted to the second defendant for reallocation to a different medical assessor for determination of the matters according to law. 5. I make no order as to costs, in the absence of submissions from the parties on that issue. Liberty is granted to restore the matter to deal with the issue of costs.

Endnote

1. The plaintiff initially refers to the Medical Assessment Guidelines. However, the plaintiff's submissions predominately refer to the PI Guidelines dated 1 October 2007, which have the status of delegated legislation (see plaintiff's submissions [41]).

Amendments 04 May 2016 - corrected numbering from paragraph [16] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2016