Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833 | Case summary

JUDGMENT 1 HIS HONOUR: By its summons filed on 22 February 2010 the plaintiff, Australian Associated Motor Insurers Limited (AAMI) seeks the following orders - 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the assessment and certificate of the Claims Assessor David Ford, the second defendant, made on 4 December 2009 purportedly pursuant to section 94 of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") ("the assessment decision"). 2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision. 3. An order in the nature of mandamus remitting the claimant's assessment application to the first defendant or the Principal Claims Assessor of the first defendant reallocation of the matter to a different Claims Assessor for determination of the matter according to law. 4. Costs. 2 The first defendant is the Motor Accidents Authority of New South Wales (MAA). The second defendant is Mr David Ford, who is sued in his capacity as a claims assessor of MAA. The third defendant is Mrs Marie Kriticos, nee Georgis. The first and second defendants have filed submitting appearances and the only active parties in the summons have been the plaintiff and the third defendant. 3 Mrs Kriticos was injured in a motor vehicle accident on 11 July 2006. She was taken to hospital and there observed before being discharged with painkillers. She consulted her general practitioner, who referred her to specialists for treatment. She suffered pain and disability and her ability to work was affected. She made a claim against AAMI, the insurer of the responsible driver. Her claim had to be determined under the regime provided by the Motor Accidents Compensation Act, 1999 (the Act). AAMI admitted liability and Mrs Kriticos' claim went for assessment before a claims assessor appointed under the provisions of the Act. The second defendant was appointed to assess the claim and the parties put before him evidence and submissions. On 4 December 2009 the second defendant assessed and certified Mrs Kriticos' damages at $336,699. 4 AAMI asserts that the claims assessor made a number of jurisdictional errors or errors of law on the face of the record and alternatively that he constructively failed to exercise his statutory power. The grounds are pleaded thus - (a) He took into account the medical expert report of Dr David Gronow dated 24 July 2008 (at page 4 of the reasons for assessment), a copy of which had not been served on the plaintiff. Accordingly, the second defendant denied the plaintiff natural justice or procedural fairness in that he took into account relevant expert medical evidence without first showing or raising it with the plaintiff prior to him making the determination and he thereby deprived the plaintiff of the opportunity of adducing relevant evidence and/or relevant expert medical evidence in response and making submissions on the new material; (b) He made a finding as to the nature and extent of the third defendant's injuries that underpinned his findings as to the quantum damages, namely, that the third defendant suffered from 'reflex sympathetic dystrophy" or Complex Regional Pain Syndrome (CRPS)" in the absence of evidence about the nature and extent of the said conditions(s) before him and where his findings were against the medical evidence that had been adduced by both parties; (c) He took into account irrelevant considerations that he should not have taken into account by impermissibly informing himself from the internet web site "Wikipedia" as to the alleged meaning of the conditions "reflex sympathetic dystrophy" or "Complex Regional Pain Syndrome (CRPS)" . Alternatively, he denied the plaintiff natural justice or procedural fairness in that he took into account this Wikipedia evidence without first raising it with the plaintiff prior to him making the determination and he thereby deprived the plaintiff of the opportunity of adducing relevant evidence and/or relevant expert medical evidence in response and making submissions or further submissions on the new material; and/or, (b) (sic) He failed to set out reasons or adequate reasons for his assessment decision as he was required to do. 5 It is further pleaded that alternatively, by reason of the above matters, the second defendant failed to understand the nature of the task he was to perform and he therefore failed to perform it or he constructively failed to perform it. 6 It is convenient to deal first with ground (c). 7 In pursuing her claim before the assessor Mrs Kriticos relied on a chronology and medical reports, which disclosed that after her discharge from hospital on the day of the accident she consulted her general practitioner, Dr Hawi. He noted that the right leg was very cold and painful and that there was severe pain and paraesthesia/numbness involving the lower right leg. The leg was so alarmingly icy cold and pale compared to the left that Dr Hawi was of the opinion that there was either vascular injury or Reflex Sympathetic Dystrophy (RSD), also known as Complex Regional Pain Syndrome (CRPS). He referred Mrs Kriticos to a vascular surgeon, who confirmed that the vasculature of the leg was intact. So Dr Hawi diagnosed CRPS. He referred Mrs Kriticos to Dr Reiter, a rheumatologist, who saw her on 24 July 2006. She was concerned that Mrs Kriticos was developing early CRPS. She treated her until 13 December 2006. Altogether Dr Reiter wrote five reports. Dr Hawi referred Mrs Kriticos to Dr Gronow at Sydney Pain Management Clinic. He examined her on 29 March 2007 and noted her complaints of pain and coldness in the leg. He saw her a number of times after that. He or his colleague, Dr Defossez, wrote seven reports altogether, though I am satisfied that the last of them, the one written on 24 July 2008 did not find its way into evidence. Reports of other medical practitioners and of an occupational therapist were tendered which touched on the subject of CRPS. None of the reports that mentioned CRPS, however, said exactly what the condition was, how it might arise, what symptoms it might produce, how it might progress and what the possible ultimate result might be for a person experiencing it. 8 Evidence was put before this Court, which I accept, to the effect that no expert gave oral evidence before the assessor and no evidence was otherwise tendered to explain the nature or the implications of CRPS. I accept the evidence that the assessor did not ask the parties for assistance in understanding the nature of the condition. 9 In his published reasons for decision the assessor said this in part - The claimant has had significant medical treatment since this accident and there are a number of medical reports from both treating doctors and Medico-legal specialists which set out in detail the nature and extent of her ongoing problems and the treatment provided to her. The claimant suffers from what now can be described as a longstanding musculo ligamentous back and right hip injury. She also suffers from reflex sympathetic dystrophy (complex regional pain syndrome) involving her right leg. I accept that this condition is as a result of the injuries sustained in the motor vehicle accident. I obtained information regarding reflex sympathetic dystrophy from Wikipedia. In Wikipedia, it is referred to a Complex Regional Pain Syndrome (CRPS) which is a chronic progressive disease characterised by severe pain, swelling and changes in the skin. The symptoms of CRPS usually manifest near the site of an injury, either major or minor, and usually spread beyond the original area. Symptoms may spread to involve the entire limb, and commonly, the opposite limb or other appendages. Furthermore, it is stated the most common symptoms overall are burning and electrical like shooting pains. The patient may also experience muscle spasms, local swelling, increased sweating, changes in skin temperature and colour, softening and thinning of bones, joint tenderness or stiffness, restricted or painful movement, and changes in the nails, dry skin over the complete body, and finally rapid shedding of skin. The pain of CRPS is continuous and may be heighten by emotional stress. Moving or touching the limb is often intolerable. Eventually the joints become stiff from disuse, and the skin, muscles and bone atrophy. The symptoms of CRPS vary in severity and duration. 10 The assessor went on to review the opinions of the medical practitioners whose reports have been tendered. 11 Part 4.4 of the Act is concerned with claims assessment and resolution (CARS). By s 99 a claims assessor is a member of the staff of MAA who is for the time being designated as a claims assessor. The Act does not require a claims assessor to have any particular qualification or experience. It requires that persons so designated be suitably qualified in the opinion of MAA. 12 By s 106 assessments under Part 4.4 are subject to relevant MAA Claims Assessments Guidelines (the Guidelines). Although by s 122(3) a claims assessor is to assess a damages claim as a court would, the Guidelines provide for a less formal procedure than would apply in a court. 13 The objects of CARS are set out in Ch. 1 of the guidelines thus - 1.13 The objects of CARS set out in clause 1.14 should be used as an aid to the interpretation of these Guidelines. 1.14 The objects of CARS in dealing with claims and disputes in connection with claims referred are: 1.14.1 to provide a timely, fair and cost effective system for the assessment of claims under the Motor Accidents Compensation Act 1999 that is accessible, transparent, independent and professional; 1.14.2 to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties; 1.14.3 to ensure the quality and consistency of CARS decision making; 1.14.4 to make appropriate use of the knowledge and experience of CARS Assessors; and 1.14.5 to establish and maintain effective communication and liaison with stakeholders concerning the role of CARS. 14 Chapter 16 of the Guidelines deals with the assessment procedure. The following clauses are apposite - 16.1 In conducting an assessment the Assessor may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the Assessor thinks fit. … 16.3 The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal forms. 16.4 The Assessor is to take into account the objects of the Act and the objects of CARS at all times. 16.5 The Assessor is to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined. … 16.7 The Assessor is to progress the resolution of the matter as quickly, fairly and as cost effective as is practicable. 15 It was submitted for AAMI that the passage extracted from the reasons of the claims assessor show that he relied heavily on his own independent research to ascertain the meaning of RSD or CRPS. It was submitted that that was impermissible for a number of reasons, first that it was a denial of natural justice that the claims assessor should undertake such research and obtain what on the face of it was specialist medical evidence in the absence of the parties and in circumstances where both parties had medical experts retained who could have assisted the claims assessor. Secondly, it was submitted that such information could also have been obtained from an MAA medical assessor. The mechanism would be a referral by the claims assessor under s 62 of the Act. Thirdly, it was submitted that the information obtained by the claims assessor was inherently unreliable. 16 I note the intention and requirements of the Guidelines that claims assessors are to act with as little formality as the circumstances permit, that they are not bound by the rules of evidence, that they may determine their own procedure and that they may enquire into any matter in such manner as they think fit. 17 Even so, the system administered by the claims assessor had to be, among other things, fair and transparent: ch 1.14.1. A party before a tribunal has a right to know the evidence that is being relied on by the tribunal and on which a determination may possibly be made against its interests. The party is entitled to make oral submissions about such matters: Ah-Dar v State Transit Authority of NSW (2007) 69 NSWLR 468. 18 In Rodriguez v Telstra Corporation Ltd [2002] FCA 30 the Administrative Appeals Tribunal substituted its own opinion for that of medical practitioners whose opinions had been put before it at a hearing. Kiefel J said at [24] - In any event if a view is formed by a Tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it. 19 Her Honour went on to observe that (as in the present case) the Tribunal appealed from was not bound by the rules of evidence, had a flexible procedure and could inform itself in such a manner as it thought appropriate. Her Honour continued at [25] - The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41; 26 ALR 247 at 256; 36 FLR 482 at 492, referring to Consolidated Edison Co v National Labour Relations Board 305 US 197 (1938) at 229; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; 21 ALD 1 at 23-4; 94 ALR 11 at 37-8; Repatriation Commission v Maley (1991) 24 ALD 43 (Full Court). Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205 at 210; 8 ALN N102; 60 ALR 717 at 722 a Full Court of this court held that it was unjustifiable, and therefore legally erroneous, for a tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter. 20 Counsel for Mrs Kriticos submitted that what the claims assessor had done did not amount to independent research to reach a diagnosis of Mrs Kriticos' condition. It was submitted that the condition formed part of the medical evidence that was before the claims assessor and that the use of a reference source to gain an understanding of terminology, which was like the use of a dictionary to gain understanding of the meaning of a word, was not legally impermissible, particularly in the context of the statutory scheme. 21 I am unable to accept that submission. In my opinion the claims assessor's references to the possibility of symptoms spreading to involve an entire limb and commonly the opposite limb or other appendages, the softening and thinning of bones, joint tenderness or stiffness, rapid shedding of skin, the continuity of the pain and the eventuality that joints become stiff from disuse and the skin, muscles and bone atrophy show that the claims assessor was probably doing much more than that. He was bringing into consideration symptoms and consequences which had not been understood by the parties as having any relevance to the case that was before the claims assessor. It is not easy to understand why the claims assessor mentioned those matters, at least without some qualification to respect the issues in the instant case, if he was not going to take them into account in the assessment. 22 Evidence was put before this Court about information published by the proprietor or operator of the Wikipedia service. Anyone can contribute to the service and anyone can edit what has been contributed by others. Specialised qualifications are not required for contributors or editors. That is not to say that articles on any topic, including the one of interest here, have not been contributed or edited by suitably qualified medical persons. However, as the publishers of the service say, allowing anyone to edit articles means that the service is more easily vandalised or susceptible to unchecked information. It warns that articles on subject areas sometimes suffer from significant omissions, and that while misinformation and vandalism are usually corrected quickly, that does not always happen. 23 It is possible that the material which the claims assessor obtained was completely accurate but in view of the disclaimers published by the service, there seems to be a substantial risk that it contained errors. It seems to me that if the claims assessor had informed the parties that he was informing himself by that means, the parties would have been entitled to and would have wished to make submissions about whether the information derived from that source was reliable and to put before the claims assessor evidence from the medical practitioners they had qualified. 24 It was also submitted by counsel for Mrs Kriticos, referring to the assessment of the several heads of damages, particularly that for future economic loss, that it might be concluded that whatever the claims assessor had extracted did not materially affect his assessment. It was submitted that the allowance for future economic loss, namely $105 per week for five years followed by $200 per week for the remainder of the term allowed, was a moderate approach. Effectively the submission was that no sums of that order would be appropriate to compensate a person suffering from the kinds of symptoms and results mentioned in the passage extracted from Wikipedia. While the argument has some attraction, I am unable to conclude that the claims assessor did not take the extracted material into account in some way in making his assessment. 25 In my opinion the plaintiff has established that it was denied procedural fairness and its entitlement to an order setting aside the assessment and remitting the matter to the CARS for assessment according to law. It seems to me that in view of the nature of the information acquired by the claims assessor it would be better if the assessment were done by another claims assessor. 26 The other three grounds upon which orders are sought all raise aspects of the way in which the claims assessor dealt with the matter. Since they are of no general interest and since any judgment about them is unlikely to assist CARS in a further assessment it is unnecessary to deal with them. 27 No case was made out at the hearing justifying action to permit any defendant taking any further steps in reliance on the assessment, so there should be no order in the nature of the second order sought in the summons. 28 I make the following orders:- 1. Set aside the assessment and certificate of the claims assessor made on 4 December 2009; 2. Remit the third defendant's claim to the Principal Claims Assessor of the first defendant for allocation to a claims assessor other than the second defendant for determination according to law; 3. Order the third defendant to pay the plaintiff's costs of summons. 4. The third defendant should have a certificate under the Suitors Fund Act. **********

Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW

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