20 The Plaintiff's principal complaints in this Court seemed to me to be that the Second Defendant:-
(i) Failed to recognise the lack of transparency and breach of procedural fairness in Dr Truskett's Assessment in that he -
(a) failed to measure and report on the degree of movement, and
(b) did not record "DRE estimates" and did not report on the presence or absence of pain, muscle guarding and asymmetric movement (recording only one criterion, viz. muscle spasm).
(ii) Failed to recognise the Assessor's lack of transparency, breach of procedural fairness and erroneous fact finding in recording that the Plaintiff dressed and undressed without difficulty when in fact he had failed to observe this.
(iii) Took into account considerations beyond those provided for by s63(3).
(iv) Misdirected herself as to the test to be applied as laid down in s63(3) and thereby overreached her statutory task.
(v) If she had applied the proper test, such were the number of obvious errors in Dr Truskett's Assessment that the Second Defendant had to be satisfied that there was reasonable cause to suspect that the Assessment was incorrect.
21 The third of these submissions was largely withdrawn. To the extent to which it was not it is answered by the decision in Pratap to which I have referred and with which I agree. Accordingly, there is no need for me to further consider that submission.
22 In paragraph 4 of the written submissions advance by Ms Nolan on the Plaintiff's behalf, it was asserted that the complaint in relation to the assessment related to the lumbar spine. Later paragraphs concentrate attention on this area and during the course of proceedings before me counsel for the Plaintiff reaffirmed that that was her understanding of the complaint although when she was taken to one of the paragraphs of the application for Review that clearly quoted the assessor's comments in respect of the cervical spine she sought to expand the argument before me. Counsel for the Defendant objected but in light of the clear terms of the Application for Review, it seems to me that I must deal with the matter on the wider basis.
23 Turning to the first principal complaint, it was submitted by Ms Nolan that what was said in the paragraph of Dr Truskett's remarks that I have numbered (ii) did not constitute findings in relation to asymmetry and amounted to a constructive failure to exercise the function on which Dr Truskett was engaged. She sought support for this approach from the fact that Dr Truskett was fulfilling the role of an administrative decision maker and submitted that the terms of the definition of dysmetria indicated that there needed to be some reproducible finding of particularity and specificity. She submitted that "normal" was an inappropriate word to be used in the exercise of discharge of the doctor's statutory function.
24 Unsurprisingly, Ms Nolan had no authority to support this latter proposition which is to deny the ordinary use of the English language. Asymmetry would be quite inconsistent with normal movement in the respects to which Dr Truskett adverted and I am satisfied that there was no error in Dr Truskett's expression of his findings or in the Second Defendant's conclusions on this topic. Furthermore, although I do not need to rely on the fact, it is not apparent how one can rely Ms Nolan's submission with the terms of clause 1.42 of the MAA Guidelines.
25 The complaint that Dr Truskett did not report on the presence or absence of pain is answered by a combination of 2 matters. The first and principal matter is the half page account Dr Truskett gave of the Plaintiff's complaints in that regard. The second lies in the paragraph 1.40 of the MAA Guidelines that I have quoted above.
26 I turn to the complaint that Dr Truskett did not report on the presence or absence of muscle guarding. One of Ms Nolan's submissions was that regard could not be had in this connection to statements as to clinical matters contained in the paragraphs I have numbered (vi) to (viii) except insofar as these but reproduced matters earlier stated under the heading "Findings on Clinical Examination". I was not taken to anything in the Act or Guidelines to support this contention and, with all due respect to its author, the submission has only to be stated to be rejected. The law has long since passed that sort of formalism.
27 However, it is the fact that the only express reference Dr Truskett made to muscle guarding was in the paragraph I have numbered (vi), a paragraph devoted to the cervical spine. The question arises whether he was obliged to refer to it when considering the other areas.
28 In this connection it is appropriate to recognise that in respect of none of the cervical, thoracic or lumbar spine did he refer either to there being "no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury of illness" - other aspects of the description of DRE I. And although Dr Truskett had earlier referred to the radiological examinations, he nowhere said that they were conducted in circumstances of "lateral flexion and extension". It seems to me that ultimately the question boils down to whether an assessor is obliged to refer, either expressly or by necessary implication, to each of the matters necessary to place a claimant in DRE Category I if that is what an assessor concludes.
29 Given the different terminology in the descriptions of other Categories, different considerations may well apply to them but the description in the AMA Guidelines of Category 1 requires the absence of each of 5 distinct matters, viz:-
significant clinical findings,
muscle guarding,
documentable neurological impairment,
significant loss of structural integrity on lateral flexion and extension roentgenograms, and
indication of impairment related to injury or illness."
30 Clause 4.19 of the MAA Guidelines is not as specific although in its statement that "DRE I applies when the injured person complains about symptoms but there are no objective clinical findings by the assessor", it is equally categorical about the absence of "objective clinical findings". I do not find it necessary in the circumstances of this case to decide whether a formulation simply in terms of clause 4.19 would be sufficient statement of reasons.
31 Clearly relevant in this connection is clause 4.20 which, at the cost of repetition dictates that, "when allocating the injured person to a DRE category the assessor must reference the relevant differentiators and/or structural inclusions". It must also be recognised that the clause is not printed in bold and thus not a directive as to how the assessment should be performed but given the obligation in an assessor to provide reasons - an obligation that must extend to reasons explaining or justifying the decision - it is difficult to see how an assessor can do so without referring, expressly or by implication, to either the absence of "objective clinical findings" or all of the 5 matters listed in paragraph 29 above.
32 Thus I do not regard Dr Truskett's Assessment as complying with the obligation, contained in s61(9) of the Act to provide reasons.
33 Consistently with the approach that should have been taken, Dr Truskett also erred in the reasons he gave in the paragraphs I have numbered (vii) and (viii) dealing with the Thoracic and Lumbar Spine. Although muscular spasm may well be a significant clinical finding, the absence of only muscular spasm and neurological deficit does not justify a classification of DRE Category I. The absence of other matters to which Dr Truskett did not refer was also required.
34 Of course, I am not sitting on appeal from Dr Truskett. The matters to which I have just referred are but background to the decision of the Second Defendant and error on the part of Dr Truskett does not necessarily lead to the conclusion that there was any error on the part of the Second Defendant in concluding that she was not "satisfied that there is reasonable cause of suspect that the assessment is incorrect in a material respect" or, more relevantly, that she erred in a way calling for judicial review.
35 However, in the circumstances of this case, I am satisfied that the decision of the Second Defendant was so affected by error that the Court should interfere. In the first place, the Second Defendant's reasons do not expressly address the fact that in the paragraphs I have numbered (vii) and (viii) above, the assessor states as his reasons for assigning Category 1 to the Thoracic and Lumbar Spine only the finding that there is "no muscle spasm and no neurological deficit" and does not address the other (cumulative) characteristics of that Category. Had any of the other matters to which Dr Truskett did not refer been present, then DRE Category I was at least arguably not appropriate. (I have so expressed the matter because the difference in terminology in the descriptions of DRE I and DRE II is such that it is not obvious that some departure from the requirements of DRE automatically leads to the conclusion that DRE II is appropriate. The matter was not argued, and accordingly it is not appropriate that I say more than that Dr Truskett's errors in this area were such that they were capable of altering the outcome.)
36 It must be acknowledged that the Second Defendant's quotation from the assessor's reasons as "there is no significant clinical findings, no muscle guarding and no documentable neurological impairment" was an appropriate response to the complaint of a failure to mention guarding if and insofar as the complaint related to the cervical spine. The passage provides grounds for thinking that the assessor was unlikely to have neglected consideration of the topic of guarding when dealing with the thoracic and lumbar spines although it is not clear that the Second Defendant appreciated that, of itself, the quotation did not answer the criticism that the assessor did not find that there was no guarding in these other areas (though it may be that that is the proper conclusion in the case of at least part of the spine given the assessor's references to "normal" in the paragraph I have numbered (v)).
37 The Second Defendant seems also to have regarded Dr Truskett's reference to "spasm" as an answer to the complaint that he did not refer to "guarding" in relation to the lumbar spine. In this she erred. As the definition of both terms makes clear, they are different concepts and "spasm" is not referred to in the explanation of DRE (at least unless it is encompassed within the expression "significant clinical finding" and if it is, its presence would make Category I inapposite).
38 The Second Defendant was correct in her statement that the assessor "clearly states the lumbar impairment to be DRE Category 1" although it is not apparent what significance she attached to this. Being a statement of the ultimate conclusion, it provides no evidence of the reasons which led to that conclusion unless the inference be drawn that the assessor must, by arriving at it, have found that the characteristics of that Category existed. Such an approach goes a long way to making otiose any addressing of individual characteristics and does not in any event comply with the statutory requirement to set out reasons for any (relevant) matter certified.
39 Ms Nolan relied also on the references in the Second Defendant's reasons, "there is no error" and "I am not satisfied". At face value these expressions are departures from the test in s63(3) of the Act which involves the Proper Officer merely being "satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect … ." The statement "there is no error" probably carries with it the implication that the Proper Officer was satisfied there was no reasonable cause to suspect error on the part of the assessor but the statements to the effect "I am not satisfied" clearly do not.
40 It must be acknowledged that, in addition to the passages just quoted the Second Defendant said, both at the beginning and end of her remarks, that she was "not satisfied that there is reasonable cause to suspect that (Dr Truskett's) assessment is incorrect in a material respect" and it was submitted that whatever infelicities of expression there may have been relating to individual topics, it is clear that she understood and applied the correct ultimate test. There is force in this view but, one may ask, if the Second Defendant did so understand her task, why did she mis-state the test in the passages referred to? It is not sufficient simply to recite the relevant words of s63(3) so to speak as a mantra, but in fact apply a different test as, at least in relation to some matters, the Second Defendant seems to have done.
41 In the result, and despite the references at the beginning and end of her remarks to the test laid down in s63(3), I am satisfied that the Second Defendant in some respects did misdirect herself to the test to be applied. Further demonstration of the Second Defendant's failure to direct herself properly lies in her failure to recognise the number of errors to which I have referred in Dr Truskett's assessment. Insofar as a number of these errors relate to the elements necessary to a finding of DRE Category I, they are clearly material.
42 Although it is unnecessary for me to do so, it seems appropriate to say something about the second challenge listed above. Dr Truskett did not provide any indication as to how he took his stated observation to the effect that the Plaintiff had dressed and undressed without difficulty into account or as to the significance or weight he placed on it. The Plaintiff's actions if as described accorded with the assessor's findings on clinical examination so did not have the significance they may otherwise have had if there was inconsistency. If, as the Plaintiff asserted, the assessor did not see her dress or undress, then that activity on her part could have no effect on his assessment.
43 Certainly, a factual error as blatant as, on the Plaintiff's account the assessor made is, given his position, a matter of considerable concern. However, once regard is had to the definition of "material" in clause 10.11 of the MAA Medical Assessment Guidelines, in the circumstances of this case it is impossible to conclude that the Second Defendant's conclusion that the matter was not material was not open to her.
44 The final question that arises is the topic of delay. The Plaintiff provided no explanation for the 12 months delay in instituting proceedings in this Court and the Third Defendant submitted that on discretionary grounds, relief should be refused. On the other hand, the Third Defendant provided nothing to persuade me that it was in any significant sense prejudiced by the delay. Upon the basis that there is a community interest in achieving results that are legally correct, I am not disposed to refuse the Plaintiff relief.
45 One question that arises is whether I should grant the Plaintiff relief in the form of the second order it seeks or, in that connection, simply refer the matter back to the Second Defendant for her to properly consider the matter in accordance with these reasons. Having regard to the errors in Dr Truskett's reasons to which I have referred, it seems to me that the latter course would be an exercise in futility as there is only one proper conclusion at which the Second Defendant could arrive. Accordingly, and subject to the parties ensuring that I have correctly identified the number of the proceedings below - not all documents annexed to affidavits agree - I make the orders set out below.
46 No parties addressed on the topic of costs. I seems to me to be a case where, subject to one matter, costs should follow the event. The one matter arises from the fact that a number of the documents annexed to the first affidavit of the Plaintiff's solicitor were the wrong ones. The costs on of both parties associated with that error should be borne by the Plaintiff or her solicitor. An appropriate way of dealing with this might well be to order the Defendant to pay a percentage of the Plaintiff's costs - say 90% but I will give the parties an opportunity of dealing with the topic before making any costs order. If the parties can agree and submit a consent order to my Associate there will be no need for a further appearance. In default of the submission of such an order within 14 days, I will re-list the matter to deal with the question of costs.
47 I order:-
1. Set aside the decision of the Second Defendant dated 11 July 2008 in proceedings 2008/04/0463SC.
2. That the Second Defendant exercise her power pursuant to s63(3) of the Motor Accidents Compensation Act 1999 to refer the Plaintiff's Application for Further Assessment of a Permanent Stabilisation of a Permanent Impairment Dispute, dated 8 January 2008 being annexure A to the affidavit of Vic Petrovich of 1 September 2009 and numbered 2008/04/0463SC, for further medical assessment according to law.
3. I reserve the question of costs.