AAMI Limited v Cirevska - [2013] NSWSC 1438 - NSWSC 2013 case summary — Zoe

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AAMI Limited v Cirevska

[2013] NSWSC 1438

Supreme Court of NSW|2013-07-26|Before: Hulme J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2013-07-26

Before

Hulme J

Catchwords

(2011) 59 MVR 548 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
(2012) 60 MVR 194 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
(2009) 175 FCR 411 Hill v Forrester [2010] NSWCA 170
(2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 291 Motor Accidents Authority v Mills [2010] NSWCA 82

Source

Original judgment source is linked above.

Catchwords

(2011) 59 MVR 548 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13(2012) 60 MVR 194 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12(2009) 175 FCR 411 Hill v Forrester [2010] NSWCA 170(2010) 240 CLR 611 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 291 Motor Accidents Authority v Mills [2010] NSWCA 82(2010) 78 NSWLR 125 Pham v Shui [2006] NSWCA 373(2006) 47 MVR 231 Rodriguez v Telstra Corporation Ltd [2002] FCA 30(2002) 66 ALD 579 Roger v De Gelder [2012] NSWCA 167 Samad v District Court of New South Wales [2002] HCA 24(2002) 209 CLR 140 Trazivuk v Motor Accidents Authority [2010] NSWCA 287

Judgment (27 paragraphs)

[1]

Moray & Agnew (Plaintiff) C & M Lawyers (First Defendant) Crown Solicitor (Second & Third Defendants) File Number(s): 2012/383739

[5]

Assessor Burns and his decision on asthma 11The issue referred to Assessor Burns was, in the language of the Act, a disagreement about a "medical assessment matter": s 58(1). He was asked if "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%": s 58(1)(d). He was of course, asked this question, in relation to Ms Cirevska's respiratory injuries. 12Ms Cirevska was 57 at the date of the accident. She told Dr Burns that she had developed maturity onset asthma at the age of 52. After her discharge from hospital, she reported significant shortness of breath and exacerbation of her asthma. She told Dr Burns that she had been hospitalised 11 or 12 times in relation to breathing difficulties between the date of the accident and her visit to him (about two years). She said that while she suffered exacerbation of her asthma at least twice a year before the accident, she had never been hospitalised as a result. 13Ms Cirevska said that she had never required hospitalisation for this condition before. She previously worked full time in a physically demanding job at a Holiday Inn. She now developed shortness of breath after walking approximately 50 metres, and had gained an alarming amount of weight. The demands of her pharmaceutical treatment regime for asthma had increased substantially. 14Assessor Burns had before him certain additional material, including the reports of Associate Professor David Bryant and Dr Desai, who had both examined Ms Cirevska's respiratory function. Both A/Prof Bryant and Dr Desai assessed Ms Cirevska's respiratory impairment post-dating the accident as between 26% and 50% of whole person impairment. But both reports were qualified by the lack of pre-accident objective information. 15Dr Desai found it difficult to envisage how her asthma could have been aggravated by the accident. He said: Given the uncertainty as to why her asthma has flared after the accident as she has described, and the lack of clinical information regarding her asthma symptoms and control before the accident, I am unable to accurately assess her current respiratory impairment directly related to the motor vehicle accident. (JMC2 p84) 16Assessor Burns also had regard to a computed tomography (CT) scan of Ms Cirevska's chest dated 12 May 2009 (two weeks before the accident). He was able to compare that to a CT scan conducted at St George Hospital on the date of the accident. The earlier scan showed no active lung abnormality. 17Assessor Burns conducted his own clinical examination and performed tests with a spirometer (a device that measures a patient's lung capacity). He concluded that: The following injuries WERE caused by the motor accident: - Respiratory system - acute pulmonary embolism, pulmonary lung contusion, aggravation of asthma (JMC1 p435) 18In determining the degree of permanent impairment, Assessor Burns observed that while Ms Cirevska did have maturity onset asthma before the accident, the lack of objective evidence meant that he was obliged to not make a deduction for any pre-existing permanent impairment. This was in accordance with paragraph 1.33 of the MAA Permanent Impairment Guidelines. He assessed Ms Cirevska's degree of permanent impairment as 30% 19As it turned out, Ms Cirevska's self-reported history was incorrect in one respect. She had been admitted to hospital on account of her asthma before the accident, on 8 October 2008.

[6]

AAMI applies for review of medical assessments 20The Act provides, in s 63, for a party to a medical dispute to refer a medical assessment to a review panel on the basis that the assessment was wrong in a material respect. 21On 21 September 2011, AAMI Limited lodged a review application in relation to Assessor Klug's assessment of psychiatric injury. A medical review panel accepted that application, and revoked the certificate issued by him. The panel issued a replacement certificate on 4 April 2012. (As the assessment certified a 15% permanent impairment on different psychiatric bases, the effect was nil, but the date is important.) 22At some point in late 2011, AAMI Limited came into possession of admission records from St George Hospital confirming that Ms Cirevska was admitted on account of an exacerbation of her asthma between 8 and 13 October 2008. The admission records also included spirometry results, which were worse than those measured by Dr Desai. AAMI Limited provided this material to Dr Desai, who in a report dated 5 December 2011 stated, "her significant lung function impairment when I assessed her on 2 March 2011 predates the accident and is due to prior injury/disability". Dr Desai concluded that the respiratory whole person impairment relating to the motor accident was zero percent. 23AAMI Limited accordingly sought, on 22 December 2011, a review of Assessor Burns' (and Assessor Kirkby's) certificate. But the MAA responded, on 20 January 2012, as follows: I refer to your application for further assessment of Permanent Impairment received at MAS [Medical Assessment Service] on 22 December 2011. The application is rejected for the following reasons: - There is currently a review application of this assessment which has not yet been completed. An application for further assessment cannot be made until the review application has been completed. - [Some dates had been omitted in the application form]. ... Please amend the application accordingly before resubmitting it to MAS. 24AAMI Limited did not re-lodge its review application in respect of Assessor Burns' certificate after the determination of the review panel in respect of Assessor Klug's certificate on 4 April 2012. 25An affidavit of John Cooper, solicitor for AAMI Limited, sworn 29 April 2013, gave an explanation of why that occurred: One of the roles of the Medical Assessment Service is to determine whether a person's injuries have left them with whole person impairment in excess of 10% which would provide an entitlement to non economic loss. Once that service has determined a claimant is entitled to non economic loss in respect of any injury, it would be futile to refer for further assessment an issue of whole person impairment in respect of a separate injury. I believe that [the letter] wherein MAS rejected the plaintiff's application for further assessment in respect of physical injury as there was a current review application in respect of psychiatric injury was indicative of that position. As the panel determined the defendant's psychiatric injury had caused a whole person impairment in excess of 10%, the issue in respect of the defendant's physical injury could not be further determined by the medical assessment service. 26(The paragraphs above were admitted as proof of what AAMI Limited or its lawyers believed, not of the matters asserted.)

[7]

Ms Cirevska's claim proceeds to general assessment 27On 4 April 2012, Ms Cirevska progressed her claim by lodging an application form for general assessment by the Claims Assessment and Review Service ("CARS"). The date, being the same as the date of the determination of the medical review panel in respect of Assessor Klug, appears to be coincidental: Ms Cirevska included the original certificate of Assessor Klug in her application. 28Two months later, on 5 June 2012, AAMI Limited lodged its reply form. It included, in its reply, the medical review panel certificate issued on 4 April 2012. 29The various forms required to interact with the MAA claims process are characterised by pre-determined responses that an applicant or respondent can check if applicable. The forms are rather labyrinthine, but the reader's indulgence is required to explain an important feature. 30Question 6 of the application and reply forms for general assessment is titled "Assessment Details". Sub-question 6A is titled "Suitability for Assessment". It asks if the claim is not suitable for assessment. If the claim is suitable for assessment, the question may be passed over. Sub-question 6B is titled "Readiness for Assessment". It states: A claim is ready for assessment when all outstanding MAS disputes are resolved and the parties are otherwise ready to have the claim heard and determined. Is the claim ready for assessment? 31The form then provides "yes" and "no" checkboxes. 32In filling out her application, Ms Cirevska passed over 6A and indicated in 6B that the claim was ready for assessment. AAMI Limited, despite checking a preliminary box that indicated it cavilled with some part of Ms Cirevska's response to Question 6, also passed over 6A and indicated in 6B that the claim was ready for assessment. 33On 11 July 2012, Mr Goudkamp, the CARS Assessor, convened a preliminary conference by telephone between the legal representatives for Ms Cirevska and AAMI Limited. In his report issued to the parties two days after the conference, Assessor Goudkamp recorded that, "The parties agree that...the matter is ready to proceed to assessment". An assessment conference was scheduled for 17 September 2012. 34At the hearing, Ms Cirevska pressed her claim that her asthma had become disabling because of the accident and that her quality of life was significantly eroded. AAMI Limited disputed that the asthma was aggravated by the accident, and alleged that Ms Cirevska had sought to mislead various doctors as to the extent of her pre-accident asthmatic condition.

[9]

The status of Assessor Burns' report 37Assessor Goudkamp was urged by AAMI Limited to circumvent Assessor Burn's certificate on a number of bases. He summarised those arguments, and detailed his reasons in response, as follows: Section 61(2) of the Act provides that certificates issued by medical assessors are "conclusive evidence of the matters certified". One of the matters that a certificate may certify is "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%": Section 58(1)(d). The certificate that Assessor Burns published is therefore conclusive evidence of the fact that the claimant suffered injuries due to the accident that resulted in a permanent impairment greater than 10%. The certificate consequently opened the section 131 gateway to the recovery of damages for non-economic loss. It is clear that I cannot find that the gateway in section 131 is closed. In my view, it is irrelevant in this connection that Assessor Burns was not told about the claimant's admission to St George Hospital in October 2008. The proper way for an assessment to be challenged is by way of a referral for a further medical assessment pursuant to section 62 of the Act or by way of a review under section 63 of the Act. Even if Assessor Burns would have made a different assessment had he been privy to the information concerning the claimant's October 2008 admission (a point on which I express no opinion), that would not change the fact that his certificate is conclusive evidence of the matter certified. Can I ignore Assessor Burns' assessment in determining whether the claimant suffered economic loss as a result of the accident? It seems to have been established that certificates of medical assessors are conclusive evidence only as to whether (relevantly) the claimant satisfied the section 131 gateway to recovering damages for non-economic loss. In Pham v Shui [2006] NSW CA 373, Santow J A (with whom Bryson J A and Brereton J agreed) said (at [98]): "The review certificate ... insofar as certifying to the matters stated in s61(2) is conclusive, but only for the purposes of non-economic loss. It is not inconclusive for the purposes of economic loss. The reasons which are incorporated in the certificate may be evidence as to the matters certified, but extreme caution is required in admitting such evidence in relation to damages for economic loss governed by Pt 5.2 [of the Motor Accidents Compensation Act 1999 (NSW)], having regard to the different methodology of Pt 5.3 of the Act"." It follows that I need to determine whether the accident caused the claimant to suffer economic loss and, if it has, its extent. It is open to me to find that the claimant did not suffer an exacerbation in her asthma in the accident? I do not think that it is. In my view, the Assessor Burns' certificate is conclusive evidence of the fact that injuries were caused by the accident as well as the fact that the injuries led to the claimant suffering a permanent impairment that opens the section 131 gateway. I am fortified in this regard by obiter dicta of Giles J A in Motor Accidents Authority of New South Wales v Mills [2010] NSW CA 82, [57]-[69]. At [69] His Honour said that he did not understand Santo J A in Pham v Shui as having "said that the conclusiveness of the certificate did not include causation by the motor accident". At [62] Giles J A remarked, with reference to section 61(2)(a) that a certificate "as to whether the degree of permanent impairment of the injured person is greater than 10%" ... "means permanent impairment as a result of the injury caused by the motor accident. The conclusive effect of such a certificate extended to the element of causation". In conclusion, it is not open to me to find that the claimant did not suffer an exacerbation of her asthma as a result of the accident. The certificate issued by Assessor Burns is conclusive evidence of the fact that the claimant suffered a worsening of her asthma because of the accident, as well as, of course, that the degree of permanent impairment is sufficient to open the gateway in section 131.

[10]

Exacerbation of asthma 38Assessor Goudkamp detailed the evidence of Ms Cirevska, and remarked that he accepted her as a witness of truth. She said at the hearing that she had had one admission to hospital for asthma prior to the accident, and 20 admissions since. Ms Cirevska said that she had previously forgotten her first hospitalisation and denied that she had deliberatively hidden the truth from the medical experts or MAA assessors. Ms Cirevska said puffers previously controlled her asthma, but that she now spent many hours a day using a nebuliser. 39Ms Cirevska gave evidence that she led a prior active life, but that subsequently her severe asthma prevented her from working; going upstairs at home; performing household chores, which used to be almost entirely her responsibility; playing with grandchildren and so on. She had gained a significant amount of weight. 40Ms Cirevska's daughter, Suzie Markos, gave evidence that included matters supportive of Ms Cirevska's debilitation with asthma after the accident. Her evidence was to the effect that before the accident Ms Cirevska was "something of a dynamo" and was now almost totally disabled. 41Ms Cirevska's claim on causation was strengthened, of course, by the conclusion reached by Assessor Burns in the light of her reporting to him that she suffered chronic and persistent asthma after 2004 (even if he was unaware of her hospitalisation). 42AAMI Limited accepted that Ms Cirevska's asthma worsened after the accident, but denied a causal link. It argued that: (1)Assessor Burns proceeded upon an incorrect assumption. (2)The spirometry reading taken in 2008 indicated a more severe condition than the one taken after the accident. (3)Dr Desai changed his opinion in the report he issued after being informed of Ms Cirevska's 2008 hospitalisation. (4)A/Prof Byrant expressed his view that he could find no likely explanation for the worsening of Ms Cirevska's asthma. (5)Dr Moses, Ms Cirevska's treating specialist, thought it would be "difficult" to establish the relevant causal connection. 43Assessor Goudkamp then referred to the "common sense" approach to causation described in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 and the "but for" test. He concluded, "In my opinion, the claimant has shown, through the civil standard, that the worsening of her asthma was caused by the accident." He cited the following specific points as assisting him in reaching that conclusion: (1)Ms Cirevska's condition deteriorated suddenly and contemporaneously with the accident. (2)The accident was a serious, high-speed collision. (3)Ms Cirevska's physical injuries led to psychiatric disorders, including stress, which A/Prof Bryant remarked could sometimes worsen asthma. (4)The difficulty experienced by some of the medical experts in linking the deterioration of the asthmatic condition to the accident was simply an acknowledgement that causation in this case was not simple. 44Assessor Goudkamp then dealt with the disparity between the spirometry readings taken at the 2008 hospitalisation and those taken subsequent to the accident. He remarked that, "This can be explained, in my view, on the ground that the claimant was in a high dependency ward at St George Hospital [in 2008] while the claimant was not hospitalised when the Spirometer reading was taken after the accident." This slightly obscure reference to a high dependency ward should be read in the context of a clearer description earlier in his reasons: Assessor Burns made his determination on the basis of a Spirometer reading, which was administered whilst the claimant was not an inpatient or in the midst of an acute exacerbation of her asthma, unlike the reading taken whilst the claimant was a patient at St George Hospital in October 2008. (JMC4 p13)

[13]

Conclusiveness of Assessor Burns' certificate 51AAMI Limited argues that Assessor Goudkamp erred in law in deciding that the certificate of Assessor Burns was conclusive evidence of the fact that Ms Cirevska's asthma was exacerbated by the accident. The argument relies on statements regarding the operation of ss 58 and 61 of the Act delivered in Pham v Shui [2006] NSWCA 373; (2006) 47 MVR 231 and Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; (2011) 59 MVR 548. 52Pham concerned, inter alia, whether a certificate issued by a medical assessor was conclusive for the purpose of calculating economic (as opposed to non-economic) loss. AAMI Limited referred, in particular, to [90]-[94] of the judgment of Santow JA (Bryson JA and Brereton J agreeing): This certificate was required for the purpose of determining whether, within s131 MACA, damages could be awarded for non-economic loss. The certificate was conclusive that the degree of permanent impairment of the injured person was not greater than 10%. I consider that s61(2)(a) can have no other meaning than that the certificate's conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%; here that it was not greater than 10%. As Mason P observed in Brown v Lewis [2006] NSWCA 87 at [23] "Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%", having earlier emphasised that "extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s61(2) for the purpose of calculating economic loss" [emphasis added]. I understand the latter reference to be to the degree to which such a certificate can constitute evidence which is not conclusive bearing upon economic loss. I do not take that reference to mean that the certificate has any extended conclusivity beyond the matters specifically referred to in s61(2). Moreover, as Mason P points out in the same paragraph, the way in which s133 requires the calculation of "greater than 10%" to be made, based on MAA Medical Guidelines and the American Medical Association's "Guides to the Evaluation of Permanent Impairment", means that it "does not concern itself with the economic consequences of injury, and excludes information (derivative psychiatric or psychological injury, impairment or symptoms; see s133(2)) that may be critically important to assessing economic loss". That very methodology of s133 therefore points to the inappositeness of extrapolating from the matters certified under s61(2) for purposes not related to the s131 non-economic loss threshold; in particular for purposes of determining economic loss to which Pt 5.2 rather Pt 5.3 applies. The structure of MACA reinforces that conclusion. The regime in Pt 5.2 is clearly a separate and distinct regime concerned with economic loss. It operates as a parallel universe to Pt 5.3 dealing with damages for non-economic loss. What I have said earlier concerning s61(2) applies a fortiori to what s61(3) refers to as "any other matter". The latter is expressed to be "evidence" but "not conclusive evidence" as to the matters certified in any court proceedings. While it is true that s61(9) requires the certificate to set out the reasons for any finding by the medical assessor or assessors, this is only "as to any matter certified in the certificate in respect of which the certificate is conclusive evidence". (emphasis in original) 53In Girgis, Adams J considered Pham and decided, at [25]-[26] and [31], that a medical assessment certificate was not conclusive proof of causation itself, but the "rolled up finding as to whether the extent of permanent impairment resulting from the injury caused by the accident is greater than 10%". So AAMI Limited did not dispute that Assessor Goudkamp was correct to accept the conclusiveness of the certificate in relation to the threshold question of non-economic loss, but submitted that the conclusion, "Is it open to me to find that the claimant did not suffer an exacerbation in her asthma in the accident? I do not think that it is." was erroneous. 54Ms Cirevska contended in response that the Assessor Goudkamp's finding was limited to a determination the certificate was conclusive in relation to non-economic loss only. This decision was said to be required by Motor Accident Authority v Mills [2010] NSWCA 82; (2010) 78 NSWLR 125. In Mills, Giles JA (Tobias JA agreeing) held at [63] that "the conclusiveness of the medical assessment, as certified, included the medical assessor's finding that the permanent impairment was or was not the result of the injury caused by the motor accident". Assessor Goudkamp had considered the decision in Pham, and accordingly concluded: It follows that I need to determine whether the accident caused the claimant to suffer economic loss and, if it has its extent. 55That is, Assessor Goudkamp accepted that the certificate was not conclusive in relation to economic loss. Later in his reasons, he again expressly reserved for his consideration "whether the claimant's injuries caused her to suffer economic loss and, if they did, the extent of that loss" (JMC3 p 14). It was argued, in oral submissions, that the context in which the impugned remarks (particular that at [53] above) were made indicated that the question of whether the injuries were caused by the accident was determined by Assessor Burns' positive finding in relation to non-economic loss only (T43). 56It was submitted, additionally, that to the extent that Assessor Goudkamp appeared to express a view that the certificate evidenced the fact that Ms Cirevska's asthma was exacerbated by the accident as a stand-alone question of causation, rather than the "rolled-up" conclusion described by Adams J in Girgis, it would be erroneous to minutely tease apart his reasons. Ms Cirevska referred to the statement in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 291 at 291 [30] that the reasons of an administrative decision maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error." 57Lastly, counsel for Ms Cirevska referred to various authorities to the effect that an error justifying prerogative relief must be material: Leichhardt Municipal Council v Seatainer Terminals (1981) 48 LGRA 409 at 419; Samad v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140 at [44]; Trazivuk v Motor Accidents Authority [2010] NSWCA 287; (2010) 57 MVR 9 at [110]; Darley Australia v Walfertan Processors [2012] NSWCA 48 at [78]. The decision must be based upon the asserted error. 58The submissions then refer to the two bases on which Assessor Goudkamp reached his decision: the effect of Assessor Burn's certificate; and, in any event, whether the subsequently discovered evidence would justify a different conclusion. The current ground, relating to the conclusiveness of the certificate, was said to be immaterial because there was a second basis for the finding on causation.

[14]

An irrelevant consideration / asking a wrong question 59Assessor Goudkamp decided that Assessor Burns' certificate was "conclusive evidence of the fact that the claimant suffered injuries due to the accident that resulted in a permanent impairment greater than 10%". He went on to say, in relation to that conclusion, that the fact that Assessor Burns had not been told about Ms Cirevska's 2008 hospital admission was not relevant to conclusiveness in this sense. Assessor Goudkamp referred to the provisions of s 62 (further medical assessment) and s 63 (review of medical assessment) as the appropriate avenues for relief, rather than the path AAMI Limited had urged him to take. 60AAMI Limited characterised Assessor Goudkamp's reliance upon Assessor Burns' certificate as a jurisdictional error. The submissions cite Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1985) 184 CLR 163 at 179: If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. 61AAMI Limited then argued that: the Assessor was in error in finding that had the MAS Assessor been privy to the information concerning the Claimant's earlier hospital admission it would not have changed the fact that the Assessor's certificate was conclusive of the matter certified. The Assessor's reference to the provisions of s.62 as a basis for finding that the certificate of Assessor Burns was conclusive was clearly an irrelevant consideration. (citations omitted) 62Dr Desai's amended views were referred to as material that should have clearly shown that the information relating to Ms Cirevska's 2008 hospital admission was capable of affecting the findings of Assessor Burns in relation to causation. 63Ms Cirevska submitted in response that, in the scheme of the Act, the fact that the provision for medical assessments to be challenged under s 62 was not an irrelevant consideration. It was submitted that "to fail to give conclusive effect to a certificate would be contrary to s. 61(2) and an error of law". The written submissions referred to AAMI Limited's failure to follow up its rejected application for further assessment, and its certification that the claim was ready to proceed to assessment. The use I am to make of those two features was not spelt out, but I take from it the implication that this was part of the context that was relevant to the decision of Assessor Goudkamp described in this ground. 64In argument, counsel for AAMI Limited clarified its reasons for not submitting a further application before general assessment commenced. Unlike the scheme under the Civil Liability Act 2002 (NSW), where damages for non-economic loss are held against a strict scale (s 16), damages for non-economic loss under the Act are limited only by the maximum award (s 134). Counsel submitted that a medical assessment of above 10% only opened the gate to damages for non-economic loss, but beyond that the general assessor was not bound to give an award corresponding to the percentage expressed by the medical assessor. It was submitted that "the CARS assessor would consider that as simply another piece of medical evidence along with all the other medical evidence he has" (T29). Counsel for Ms Cirevska rebutted this assertion by reference to the overall purpose of the scheme: the assessment process is designed to function effectively in the exercise of its particular jurisdiction through, in part, the conclusiveness of assessment certificates. There is a mechanism for challenge, which AAMI Limited did not avail itself of (despite being invited to resubmit). 65Ms Cirevska lastly submitted that this was the second ground that was immaterial (see [57] above). The impugned finding was not relevant to Assessor Goudkamp's second basis for finding causation, which expressly considered the effect of the 2008 hospital admission.

[16]

Denial of procedural fairness 70AAMI Limited asserts that: The Defendant at no time contended that the findings on causation made by the MAS Assessor was [sic] conclusive evidence on the issue of causation in the assessment of economic loss. Further, at no time during the Assessment conference did the CARS Assessor invite the parties to make submissions as to the binding nature of the MAS assessment. At no time did the CARS Assessor advise the parties and invite submissions in respect to [sic] the findings the MAS Assessor made as to the binding effect of the MAS assessment recorded in his statement of reasons. (references omitted) 71The submissions then repeated the assertion referred to in the affidavit of John Cooper, reproduced at [25] above. AAMI Limited also observed that Chapter 16 of the MAA Claims Assessment Guidelines (1 October 2008) states that The Assessor is to take such measures as are reasonably practicable to: ensure that the parties to the application understand the nature of the application, the issues to be considered and the role of the Assessor as an independent decision-maker; ... ensure that the parties have an opportunity to have their submissions considered; ... 72AAMI Limited submitted, essentially, that Assessor Goudkamp's failure to indicate that he was considering the conclusiveness issue denied it the chance to make submissions or to consider making a s 62 application. 73In oral argument, counsel for AAMI Limited stated that its position had been "that Dr Desai's opinion was the only medical opinion which considered the case in its entirety and that Desai's opinion should be accepted" (T11) and that that position was not traversed. The position was, essentially, that the insurer urged Assessor Goudkamp to accept Dr Desai's opinion over the certificate of Assessor Burns, without addressing conclusiveness, and that this submission was not taken issue with by Ms Cirevska. 74Ms Cirevska's response to this ground was to say that, in objecting to not being given the express opportunity to make submissions: the insurer misstates the requirements of procedural fairness and makes the bold submission that it should have been given notice of the effect of s 61(2) while represented by competent counsel. 75It was submitted that the insurer had all the relevant material before it in relation to the claim and had the fullest opportunity to make both written and oral submissions. Ms Cirevska characterised the highest that the relevant requirement of procedural fairness could be put in those circumstances was that Assessor Goudkamp was "only required to advise of any surprising conclusions or those which are not easily anticipated" (relying on Habib v Director-General of Security [2009] FCAFC 48; (2009) 175 FCR 411 at [63]-[78]; 428-431. A decision giving effect to the plain words of s 61(2) was not a surprising one. Or as counsel for Ms Cirevska put it in argument, "There is no wriggle room" (T33). 76This was the fourth ground that was asserted to be immaterial (see [57] above). The submission argued that: An alternative basis was provided for the finding on causation ... and whether or not procedural fairness was denied with respect to the conclusive effect of a medical assessment certificate is entirely immaterial to the finding on causation and the second [defendant's] assessment.

[17]

Failing to take into account relevant material 77This ground related to the supplementary conclusion reached by Assessor Goudkamp that, the conclusiveness of Assessor Burns' certificate notwithstanding, he could conclude on the evidence that the accident had exacerbated Ms Cirevska's asthma (see [38] to [44] above). 78AAMI Limited asserted that the "only medical evidence on the respective spirometry readings was from Dr Desai" and there was no medical evidence on which Assessor Goudkamp could conclude that Ms Cirevska's earlier spirometry readings were especially poor because she was, at the time, actually suffering an exacerbation of asthma which required hospitalisation (which she was). AAMI Limited cited Kiefel J in Rodriguez v Telstra Corporation Ltd [2002] FCA 30; (2002) 66 ALD 579 at [24]-[25] for the proposition that, in tribunals, the "flexible procedure provided for does not justify decisions made without a basis in evidence having probative force". 79In the course of oral argument, the following exchange took place, which added content to this ground: FITZSIMMONS: Now, this is the critical part, your Honour. He says this, and this is the only evidence in terms of having the full material, "As I have already noted, counsel for the insurer stressed that the Spirometer reading taken after the accident was lower than the reading taken at St George Hospital in October 2008." Of course, that was the very point raised [by] Dr Desai...in his report. He says this: "This can be explained, in my view, on the ground that the claimant was in a high dependency ward at St George Hospital [in 2008] while the claimant was not hospitalised when the Spirometer reading was taken after the accident." HIS HONOUR: Wouldn't it be a matter [of] common sense that a person with asthma would have a lesser degree of lung function when they are in the throes of an acute asthmatic episode than when they are not. FITZSIMMONS: But, your Honour, what Dr Desai looked at, there was more than one reading at St George Hospital. There were reading[s] over a period of time, from her admission until her discharge. And there was a range of readings, and there was no doubt that her reading improved over a period of time, even within the hospital. So that clearly, your honour, when she was first in there was an acute period, but the fact is over the period in hospital there were various readings. 80It was submitted, in conclusion, that the "Assessor committed jurisdictional error in seeking to substitute his own opinion in the absence of medical evidence". 81Ms Cirevska's submissions, perhaps more accurately, characterise this as the "no evidence point". The response focuses on the stringent nature of the test: no evidence means no evidence. 82In reply, counsel for AAMI Limited argued that this was not a no evidence point. Rather, it could be characterised as a "no reasons" ground. He said: Our submission is this: that either the assessor did not take into account Dr Desai and did not properly consider it, or, alternatively, if the submission is he rejected Dr Desai, he must give reasons. (T60)

[18]

Error of law in gratuitous assistance award 83Assessor Goudkamp's reasons in relation to his award for gratuitous assistance are set out at [45] to [47] above. Section 141B limits the circumstances in which awards for gratuitous care may be made. It relevantly provides: 141B Maximum amount of damages for provision of certain attendant care services (1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section. (2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. (3) Further, no compensation is to be awarded unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months. 84AAMI Limited argued that Assessor Goudkamp's finding that Ms Cirevska was hospitalised for one week a month necessarily meant that s 141B(3)(b) of the Act was not satisfied: she was not provided with services for six consecutive months. 85Ms Cirevska resisted AAMI Limited's argument on three bases. First, the calculation of the average of 12 hours a week (i.e. 16 x 3 ∕ 4) meant Assessor Goudkamp did not find that the period of 6 months was severed. This was said to accord with the approach of Campbell J in Clegg v Williams [2012] NSWSC 709 at [113]-[114]. Second, it was observed that a break of even one day would, on AAMI Limited's argument, sever the 6 month period and thus be an arbitrary and incorrect result. Third, it was pointed out that the insurer had conceded the following in its submission on the assessment: In the circumstances, it is respectfully submitted that a reasonable allowance for past domestic assistance would be 6 hours per week for a period of 6 months. (JMC2 p41) 86In argument, counsel for AAMI Limited referred to Hill v Forrester [2010] NSWCA 170; (2010) 79 NSWLR 470, which provides a helpful division of the requirements of s 141(3)(b) into an intensity requirement and a duration requirement. The intensity requirement is at least six hours per week; the duration requirement is met by satisfying the intensity requirement for at least six months. That is, one would not have the absurd situation described by Ms Cirevska of a break of one day of care, so long as the care provided in that week equalled six hours. (But other seemingly arbitrary outcomes, albeit slightly less so, are possible: for instance, a break of one week in the middle of ten months of care.) 87Counsel for Ms Cirevska developed the concession point further in argument. Counsel referred to various authorities on concessions and finality (cf D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]-[36]) and put his argument as follows: We say that what occurred was that the concession was made, and that what was left for the assessor to determine was the issue of quantum, that is to say, what [were] the number of hours per week and how long did that period of care go on for. (T54) 88In reply, counsel for AAMI Limited maintained its contention that Assessor Goudkamp, having made additional findings, should not have then acted contrary to law and awarded a sum for gratuitous care.

[20]

Conclusiveness of Assessor Burns' certificate 90The error asserted here relies upon the conclusion cited above: "Is it open to me to find that the claimant did not suffer an exacerbation in her asthma in the accident? I do not think that it is." AAMI Limited argued this is an assertion that the medical assessor's determination is a global conclusion on causation. Mrs Cirevska argued that, in context, it is a finding in relation to non-economic loss alone. The parties are not in dispute that the certificate is conclusive of the "bundled" causation question in relation to non-economic loss. 91It is clear that there would be error if Assessor Goudkamp regarded the medical assessment certificate of Assessor Burns as conclusive on causation for all purposes. Its conclusiveness was confined to the issue of non-economic loss: Motor Accidents Authority (NSW) v Mills at [57]-[69]; Roger v De Gelder [2012] NSWCA 167 at [9]. 92I do not accept that Assessor Goudkamp confined his conclusion in the way suggested by counsel for Ms Cirevska. His reasoning included: The certificate issued by Assessor Burns is conclusive evidence of the fact that the claimant suffered a worsening of her asthma because of the accident, as well as, of course, that the degree of permanent impairment is sufficient to open the gateway in section 131. (JMC2 p 14) 93He said that he would consider the quantum of non-economic loss, and whether Mrs Cirevska's injuries caused her to suffer economic loss; not whether they were caused by the accident. The structure of Assessor Goudkamp's reasons is also revealing. Under the subheading "What is the effect of Assessor Burn's assessment of the claimant" he detailed some background, and related the submissions of AAMI Limited as follows: Counsel for the insurer submitted that I should disregard Assessor Burns' assessment in its entirety since Assessor Burns was not told about the claimant's admission to St George Hospital in October 2008. Counsel seemed to adopt various fall-back positions. It was submitted that it was open to me to find that the worsening of the claimant's asthma was not caused by the accident. It was also argued that I could ignore Assessor Burns' assessment in deciding whether the claimant suffered compensable economic loss due to her respiratory injuries. 94Assessor Goudkamp squarely dealt with the two "fall-back" positions by posing each, in succeeding paragraphs, to himself (see the extract of the reasons reproduced above at [37]. The submission that "it was open to me to find that the worsening of the claimant's asthma was not caused by the accident" was dealt with by the impugned findings, and was clearly a different conclusion regarding causation than the separate issue of economic loss flowing from the injury. The Assessor did not express himself in a way that allows the leeway described in Minister for Immigration & Ethnic Affairs v Wu Shan Liang. 95I am satisfied that there was an error of law in Assessor Goudkamp's conclusion that it was not open to him to find, in his assessment of economic loss, that the injury, or exacerbation in this case, was not caused by the accident. Whether this error was material to the ultimate conclusions of the assessor will be addressed later.

[23]

Denial of procedural fairness 104This ground shares some of the concepts of the ground above: an assertion that in the circumstances a positive duty lay upon Assessor Goudkamp. 105AAMI Limited submitted that Assessor Goudkamp's failure to indicate that he was considering the conclusiveness issue addressed in his reasons as, "What is the effect of Assessor Burn's assessment of the claimant", denied it the chance to make submissions or to consider making an application for reassessment. For Ms Cirevska it was submitted that the insurer had all the relevant material before it in relation to the claim and had the fullest opportunity to make both written and oral submissions. The point was made that the material informing the issues at play in the assessment of the claim was not defined solely by the submissions, but also by the Act. 106In argument, counsel for AAMI Limited argued that: The clear lines were drawn in that the claimant made no submission about the binding nature. The insurer said you only have to consider it as a gateway opening. In terms of assessing other heads of damage you could disregard it and have regard to other evidence. That was ultimately the thrust of the insurer's submissions. (T10) 107It is true that submissions for neither party mentioned s 62 or conclusiveness. The closest AAMI Limited came to expressly cavilling with the issue was the submission that: Dr Desai's opinion should be preferred over that of Drs Burns and Bryant as they were not provided with a correct history and did not have access to the claimant's pre accident clinical records or spirometry results. (JMC2 p39) 108In the context of the scheme of the Act, that reads as a challenge to the conclusiveness of the certificate. It was certainly characterised in that way by Assessor Goudkamp and dealt with on that basis (see the extract at [93] above). That was the "thrust" of the argument put before him. (It could further be read, although I do not rely upon this, as declining to mention the matter of conclusiveness in order to strengthen the course suggested.) 109But if I am wrong in my reading, then it is my view that the failure by represented parties to address a clear feature of a legislative scheme under which a claim is being assessed cannot be a trigger for a positive duty upon a member of the relevant tribunal, in the interests of fairness, to call for further submissions on that feature. I note that s 106(1) of the Act gives the Assessment Guidelines the force of delegated legislation, but a requirement that "The Assessor is to take such measures as are reasonably practicable to...ensure that the parties to the application understand the nature of the application [and] the issues to be considered" does not materially add to what I have already observed. 110As an aside, the argument that the asserted failure led to a lost opportunity to request reassessment is illogical. AAMI Limited submitted that there was no use in making a s 62 application because the total level of impairment was over 10% in relation to another injury. If that were the case or the belief, knowing that Assessor Goudkamp would consider the certificate of Assessor Burns conclusive (in relation to non-economic loss) would not have lead to a s 62 application in any event. 111There is no merit in this ground.

[24]

Failing to take into account relevant material 112This was the only ground attacking Assessor Goudkamp's factual finding that, notwithstanding whether the certificate of Assessor Burns was conclusive, he was satisfied that Ms Cirevska's asthma was aggravated by the accident. 113AAMI Limited proved difficult to pin down on this ground. It was argued in written submissions that the "Assessor committed jurisdictional error in seeking to substitute his own opinion [over that of Dr Desai] in the absence of medical evidence". The case of Rodriguez was relied upon. It was not at all clear that the asserted error revealed jurisdictional error. Rodriguez concerned an error of law. The Assessor, on the argument put in the written submissions, did not fail to take into account the views of Dr Desai; rather he came to a different conclusion. 114Ms Cirevska characterised this as a "no evidence" ground. In argument, counsel for AAMI Limited sought to somewhat realign the jurisdictional error that was asserted. It was said to be a failure to take into account the report of Dr Desai, or if it was considered but rejected, that there was a failure to provide reasons for doing so. 115I accept the characterisation of the ground argued for by Ms Cirevska. Assessor Goudkamp necessarily disagreed with the conclusion of Dr Desai in reaching his own view that the accident was causative of exacerbation of asthma. It is not a matter, in determining causation on balance of probabilities, of saying "I reject this piece of evidence". The question must be whether Assessor Goudkamp made his ultimate decision on the basis of evidence. That necessarily incorporates a question of whether he had available to him evidence that would allow him to disagree with Dr Desai. Mason CJ (Brennan and Deane JJ agreeing) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 said that: So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. 116Assessor Goudkamp had before him not only the report of Dr Desai, but also the hospital notes for Ms Cirevska's admission in 2008 and the circumstances surrounding it. It was argued, in oral submissions, that it was open to Assessor Goudkamp to determine that issue of fact. To the extent that he appears to superimpose his own view over that of Dr Desai, a qualified specialist, counsel for Ms Cirevska referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]: On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. 117This makes a similar point to the extract from Bond above. 118In relation to the oral submission by counsel for AAMI Limited that more than one spirometry test for 2008 was before Dr Desai when he was reconsidering his opinion, I express scepticism. There is no reference to this in submissions of AAMI Limited on the assessment. There is only one spirometry report in the copies of hospital records relating to the 2008 admission provided to me (JMC2 p 126). Dr Desai notes the description of the additional material before him as, relevantly: Admission records St. George South Eastern Illawarra for the period 8 October 2008 to 13 October [2008]. In this regard, we specifically refer you to the spirometry assessment undertaken on 9 October 2008 and the results thereof. (JMC2 p86) 119Dr Desai only refers to the 9 October 2008 spirometry reading in his report. It seems to me that there is no material on which I can base a finding that Dr Desai considered more than one test, being the test that Assessor Goudkamp also considered. I do accept that Dr Desai's report referred to certain other material, such as pre-accident prescriptions. But Assessor Goudkamp considered the report, and the prescriptions were specifically cited in the submissions of AAMI Limited. There is no basis to say that he did not consider them. 120In my view, there was sufficient material to allow Assessor Goudkamp to conclude that there might be an alternative explanation for Ms Cirevska's low spirometry results. That afforded him a rational basis for not preferring the view of Dr Desai. The spirometry was not the only piece of evidence supporting the altered view of Dr Desai, but it certainly received a great deal of emphasis in his report and in the submissions of AAMI Limited. And there was sufficient evidence for him to conclude that, despite the opinion of Dr Desai and the scepticism of other practitioners, Ms Cirevska's asthma was aggravated by the accident. The view he reached, supported by the specific conclusions and evidence reproduced in these reasons at [43] above and elsewhere, was open. 121It follows that my conclusions on the previous grounds are irrelevant to the final decision reached by Assessor Goudkamp. Any error under any of those grounds was not material and, accordingly, cannot support the provision of prerogative relief.

[25]

Error of law in gratuitous assistance award 122AAMI Limited conceded, in its submissions on the assessment, that Ms Cirevska should receive an award reflecting six hours per week for six months of gratuitous care. This being the absolute minimum intensity and duration of gratuitous care for which an award can be made, it is clearly a concession that those thresholds were met. There was nothing arbitrary in Assessor Goudkamp's satisfaction in relation to that. 123It seems that neither party bothered to particularise any specific dates of hospitalisation after the accident. Assessor Goudkamp accepted Ms Cirevska's evidence that she was hospitalised on at least 20 occasions and on each occasion for about one week. That evidence must have been given at the hearing, because it is not in her written statements. AAMI Limited did not modify its concession in response. 124Quite aside from any consideration of the law relating to s 141B of the Act, in the context of how the question of gratuitous care was argued before the assessor, it is not now open to AAMI Limited to challenge Assessor Goudkamp's award. Assessor Goudkamp made an approximation based on uncontested evidence and a concession that the threshold was met. 125As an additional consideration in favour of leaving the award undisturbed; AAMI Limited has not bothered to establish before me that a full and correct accounting of her various periods of hospitalisation would result in Ms Cirevska losing the entire award, even on the restrictive reading of s 141B urged upon me. It may be that there was a six-month period, in the two years since the accident, when she was not hospitalised. I do not know. A vast amount of original material has been foisted upon me, but it is not my task in a judicial review application on an error of law (which this ground is) to review it. It offends the principle of finality to even contemplate remitting the question to another CARS assessor without any comfort as to the correct conclusion.

AAMI Limited v Cirevska

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