Currie v Motor Accidents Authority of NSW

Judgment Introduction 1In the afternoon of 21 February 2007, two cars were racing along a road when the driver of one of those cars lost control and the vehicle struck a truck travelling along on the road causing the driver to lose control. The truck rolled, finishing upside down. The plaintiff rushed to the aid of the driver, whose legs were trapped. One was partly amputated. The plaintiff tried to lift the cabin dashboard up in order to free the driver, as he was afraid the vehicle would explode. Police and paramedics soon arrived. The driver was placed in a helicopter but tragically he died on the way to the hospital. 2The plaintiff said that, when he tried to lift the dashboard, he experienced a sudden onset of pain in his lower back and, after he got home his back became progressively more painful after a couple of hours. He took some Panadol but did not go to see a doctor. Two weeks later, with his back pain worsening and with pain in his upper back and his right hip, he went to see his general practitioner and was subsequently referred to a neurosurgeon who directed that an MRI should be performed. He was also referred for rehabilitation and placed on a series of medications but he did not like taking these as they made him feel drowsy. He also had some hydrotherapy and was seen by another doctor, who gave him exercises to perform. Although the plaintiff said that he had some neck pain soon after the accident, this completely resolved. However, he continued to experience pain in his lower back with radiating pain down his right leg. He also complained of similar pain in his left leg. He said that he could not run or jog and was unable to mow a lawn or climb a ladder. He was, however, able to do light shopping and to perform all tasks of daily living, whilst continuing to take significant pain medication. 3The plaintiff made a claim for compensation but it was rejected by the insurer and, accordingly, he sought a medical assessment in accordance with Part 3.4 of the Motor Accidents Compensation Act 1999. The assessment was made on 17 June 2011 and the certificate given on 22 June 2011. The assessor had identified soft tissue injuries to the neck and the left and right arms which were soon resolved. However, he also found that the plaintiff had sustained disc damage in the lower back with radiating pain to the left and right legs, that it was permanent and stable as it had persisted for three years without modification, and assigned a 5% whole person impairment to the plaintiff's injury. Since this was not greater than 10%, under s 131 of the Act no damages could be awarded to the plaintiff for non-economic loss. The soft tissue injuries are irrelevant for present purposes. 4The plaintiff applied for a review of the assessment, claiming (for various reasons) that the percentage of whole person impairment should have been 10%. For its part, the insurer contended that the matters to which the plaintiff referred to as amounting to errors did not do so and, at all events, were not material to the ultimate finding. The insurer also sought a review on the ground that the permanent impairment was not caused by the accident. A review was conducted on 24 November 2011. The review panel (Panel) revoked the assessment and issued a new certificate to the effect that the plaintiff's injuries were not related to the motor accident. From this decision the plaintiff sought relief in this Court under s 69 of the Supreme Court Act 1970 seeking orders that the decision be quashed and the matter be remitted to the medical assessment service. Proceedings before the Panel 5The insurer's submission on the issue of causation had, it appears, been made to the assessor but, although he did not specifically refer to it, was necessarily rejected. That submission, was repeated in the application for review. It referred to the first report by the plaintiff of his injuries to his general practitioner on 21 May 2007 and contended that it was unlikely that he would have waited three months to see his doctor if the accident had caused his injuries. It was submitted that an intervening event caused them, an argument supported by the plaintiff's initial history that the injury had occurred about a month before he saw his doctor, whilst pushing a car which, it was argued, was inconsistent with the alleged circumstances of the plaintiff's involvement in the accident. The insurer, in conclusion, submitted - "... There is no contemporaneous medical evidence in support of the claimant's claim as alleged... [and therefore] any WPI from which the [plaintiff] is found to suffer is unrelated to the accident as alleged by the [plaintiff]." The Panel set out the insurer's points as follows - "The respondent opposed the application. The respondent raised additional grounds for review, as follows: The alleged errors would not be material to the outcome; and There is no contemporaneous medical evidence in support of the claimant's claim as alleged." 6It is significant, for reasons that will become apparent in due course, that the insurer's submission confined itself entirely to the absence of "contemporaneous medical evidence", which was the language also used by the Panel to specify the nature of the issue. (The insurer also referred to other possible causes for the plaintiff's back pain in support of its argument that he had not suffered an injury that resulted from the car accident but I merely note this in passing.) 7As it happened, the assessor had referred to the fact that there was no "official documentation" of the plaintiff's back injury but considered that "this was understandable given the circumstances". Clearly enough I think, this is a reference to the fact that, even if the plaintiff mentioned to the paramedics that he had suffered a sharp back pain when attempting to extricate the driver of the crashed car, no note was made of it either by police or ambulance because they were dealing with a catastrophic accident which had resulted in horrific injuries. That this might have deterred the plaintiff from raising it is also glaringly obvious. The reasons of the Panel 8Of course, as the Panel itself said, it was required to consider "afresh all aspects of the assessment under review", a task imposed on it by the provisions of s 63(3A) of the Motor Accidents Compensation Act 1999 which states - The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. 9The material before the Panel comprised the certificate issued by the assessor together with his reasons, the application and reply forms, the determination referring the matter to the Panel and all the documents that had been provided to the assessor. The Panel's reasons, having identified that material, briefly summarised the assessment and set out the disputes to which I have referred and the evidence which it considered. The Panel referred to, amongst other things, the note made by the plaintiff's general practitioner that, on 21 May 2007 he consulted her with a history of "about a month ago pushing car from back when sudden severe pain down back - now has persistent low back pain radiating down R leg to knee; when moves leg pain in hip as well", the referral to neurosurgeon on 7 June 2007 and another on 3 January 2008 who noted symptoms in the lower back with radiation down the right leg "since exacerbation during arrest by police in November", further consultations with general practitioners in respect of his back pain in 2008 and 2009, including a referral to the neurosurgeon again on 7 June 2007 with a history of "pushing a motor vehicle 1/12 ago he developed instant pain in his lower back". Also referred to was the plaintiff's personal injury claim form dated 15 February 2008 which indicated an exacerbation on 12 November 2007 of lower back strain. The Panel noted that on 5 March 2008 the plaintiff consulted the neurosurgeon to whom he had been referred in June 2007 on 5 March 2008. As the Panel sets it out - "The history that he gave to Dr Christie was that in early 2007 he was trying to lift a vehicle off a person who had been injured in a crash and he experienced pain in his back. He described ongoing pain in his lower back with pain radiating to his legs, particularly the right leg..." 10The Panel also referred to the report of a rehabilitation specialist who saw the plaintiff on 22 July 2008 and recorded that the plaintiff "had back pain that started about February 2006, but he was not sure about the date... [and that this] resulted from an intervention in a road accident near his house and following that event he went to see his local doctor but the pain remained unabated for a couple of weeks..." It noted the report of 9 March 2010 of another consultant in rehabilitation medicine who obtained a similar history of having an onset of back pain while pulling a driver out of a truck after a motor vehicle accident. 11The Panel decided that a re-examination of the plaintiff was not necessary "because there was no contemporaneous evidence that [the plaintiff] had been injured in an accident that allegedly occurred on 21 February 2007". No additional evidence was requested. 12Under the heading "Panel Deliberations" it set out the relevant passages from the American Medical Association "Guides to the Evaluation of Permanent Impairment" and the Permanent Impairment Guidelines of the Motor Accidents Authority, which do not call for present mention. Concerning the back injury the Panel stated - "(3) Lower back.... There was no contemporaneous evidence that Mr Currie had sustained any injury to his lower back on 21 February 2007. The Panel noted that Dr Gibbons had recorded at the time of first medical consultation, on 21 May 2007, after the alleged motor vehicle accident that Mr Currie gave a history of symptoms of duration about one month that followed pushing a car from the back. That history differs from that he gave to Assessor Truskett that "he tried to lift the cabin dashboard up in order to free the driver... In doing so he experienced a sudden onset of pain in his lower back". The Panel was of the opinion that had Mr Currie sustained any significant injury to the lumbar region of his back his pain would have been of such severity that he would have sought medical attention. It is assumed that an ambulance would have been called to the scene of the accident on 21 February 2007, from the description obtained by Assessor Truskett, to attend occupants of the vehicles involved in the accident. Had Mr Currie had any significant symptom he then had the opportunity to report it. The Panel concluded that the duration of three months between the alleged accident and the first report to a medical attendant of symptoms in the back and legs does not indicate a causal nexus between the two events. The Panel concluded that none of the claimed injuries were caused by an alleged motor vehicle accident on 21 February 2007. The Panel did not agree with the conclusions of Assessor Truskett that the claimed injuries were caused by the alleged motor vehicle accident. The reasons are given in the above paragraphs. The Panel was of the view that Assessor Truskett had established from the history that he took from Mr Currie that there were no symptoms referrable to his neck or arms, and that his examination did not show any abnormality of physical signs. That implies that the claimed injuries had resolved. [This is not now in issue.] The Panel did not agree with Assessor Truskett's determination that claimed injury to the lower back was caused by the alleged motor accident as there was no contemporaneous evidence of injury or symptoms, other than Mr Currie's statement of claim, and that a period of three months between the time of the alleged accident and the first report of symptoms was not consistent with him having sustained any significant injury to the lumbar region of his back." Grounds for relief 13The plaintiff's grounds for relief fell under four heads: procedural ultra vires; procedural fairness; the failure to consider relevant material; and the consideration of irrelevant material. So far as the first complaint is concerned, this was divided into two parts. The first of these was the contention that the Panel failed to apply the correct test for determining the causation of injury since it had failed to "verify that the motor accident could have caused or contributed to the impairment". As mentioned above, the Panel's reasons set out the description of causation as contained in the guidelines to which I have referred. As I said in Allianz Australia Insurance Limited v Girgis & Anor [2011] NSWSC 1424 at [42], it seems to me that the guidelines, applied with commonsense to the facts giving rise to the issue in the review, will not lead to error although they are couched in terms which differ somewhat both from the common law and s 5D of the Civil Liability Act 2002. The Panel indeed did conclude that the plaintiff's injury was not caused or contributed to by the accident. It may be that its reasoning was faulty in relying upon the absence of contemporaneous medical evidence, but that does not suggest that it did not undertake the statutory task, rather that its error (if any) was one of fact. It is also submitted under this head that the Panel applied an incorrect test, upon the basis that the mere absence of contemporaneous evidence did not demonstrate that causation of the impairment was not established since the existence of such evidence is not the test for causation. Here, again, the plaintiff's contention is really an attack upon the factual reasoning of the Panel. I do not see anything in the Panel's reasons which justifies the conclusion that it considered that the test for causation should be characterised as involving the requirement of contemporaneous medical evidence. The Panel did no more than find, in the circumstances of this case, that the absence of such evidence showed that the back injury was not a result of the events of 21 February 2007. Again, whether this reasoning was correct is a matter of fact and does not imply an error as to the meaning of causation, or the application of that meaning. 14So far as the contention by the plaintiff that the Panel failed to properly consider relevant material is concerned, this appears to be a mere matter of fact. There is no identification of any relevant material that was not considered by the Panel. It became clear in argument that the complaint was really that the Panel's conclusions in respect of the significance of the statements of the plaintiff as to how he came to be injured, were incorrect. This does not amount to an error of law. So far as the claimed consideration of irrelevant material is concerned, this is identified as the Panel's opinion that any significant injury to the lumbar spine would have led the plaintiff to have sought medical attention (I think immediate medical attention). For many obvious reasons, including the circumstances in which he experienced the sudden onset of pain to his spine, this reasoning seems to be faulty. However, the view that immediate medical attention would have been sought, even if mistaken, is not an error of law. 15More significant is the third basis for submitting the Panel erred procedurally, namely the contention that it applied an incorrect test for determining whether a re-examination of the plaintiff was necessary. This, in substance, is a claim that the plaintiff was denied procedural fairness. Although the Panel described the crucial issue as the absence of contemporaneous medical evidence, it is clear from its reasons that it was in fact troubled by the absence of any contemporaneous report of injury and the delay in attending his general practitioner. No ambulance report was tendered in the proceedings and it may be fairly inferred that this was because the report did not mention any complaint by the plaintiff. Nor had the plaintiff stated that he reported any problem with his back to the officers. At the same time, as the assessor rightly considered, there are obvious reasons why the plaintiff might not have told those officers of some back pain which, of course, was in the circumstances, trivial. And if he did report it, it is also most unlikely in the circumstances that any note would have been made of it. The Panel assumed that no complaint was made to the ambulance officers. The absence of a report is mentioned in the context of the ambulance officers being called to the scene and the conclusion that the "first report" of symptoms in the back occurred three months after the accident. It is clear that the plaintiff had never been asked whether he had made such a complaint. To conclude that he did not and therefore that he had no significant symptoms without asking him certainly appears on the face of it to be unfair, all the more when there was a very likely reason for his not doing so. The plaintiff was also never asked to explain why he took so long to complain to his general practitioner. That this was because he had no injury as claimed was, of course, one possible explanation though, it is far from the most obvious. 16It is submitted on behalf of the insurer that the plaintiff had an opportunity to put before the Panel any matter that he wished in answer to the argument by it that there was no contemporaneous medical evidence of an injury. Although during argument, this contention struck me as persuasive, on reflection and more careful analysis of the issues raised by the insurer, I have concluded that, in fact the failure to report at all was not raised by either the assessor or the Panel. Of course, this is not a matter, as it were, of pleading and must be looked at in a common sense way. However, it seems to me, that on analysis the Panel did widen the terms of the issues identified by the parties to include a consideration in respect of which the plaintiff, at least, should have been asked to respond. 17So far as the ground of procedural fairness is concerned the plaintiff complains that the finding that, if he had sustained any significant injury to the lumbar spine, his pain would have been of such severity that he would have sought medical attention, being adverse to the plaintiff, should not have been made without affording him the opportunity to be heard on the matter. Connected with this contention is the argument that the Panel assumed that the plaintiff had the opportunity to report a significant symptom of back pain to the ambulance officers at the scene and, in doing so, it erred in failing to give him the opportunity to be heard. 18As I have already mentioned, there was no evidence that the plaintiff had reported an injury at the scene. The inference drawn by the Panel that no complaint was made was a non sequitur unless one added the consideration that, if he had made such a complaint it was reasonable to infer that he would have stated it, either to the assessor or (somewhat less likely) to his doctors. During the course of argument I tentatively accepted that his failure to mention this matter in the context of the case made by the insurer to the Panel justified the inference that indeed he had not made such a complaint but, as I have already said, in the end, I do not think that this was actually an issue raised by the insurer and there was no call for the plaintiff to advert to it. Even in what is supposed to be an informal process, a party is not expected to tilt at windmills. 19Counsel for the insurer took me to the passage in Goodman v Motor Accidents Authority (NSW) & Anor [2009] NSWSC 875 at [79] that "independent medical assessments under the Act are not, and were not intended to be, an adversarial process". His Honour made this (if I may so with respect, correct) observation in the context that it was claimed to be a denial of natural justice that the plaintiff's application for a preferred assessor was refused and the assessor made a decision in his absence where, however, he had an opportunity to attend. I do not think that his Honour was suggesting that the principles of natural justice did not apply to the procedures adopted by the Panel. 20In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mason J said (omitting references) - "[28] It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it... [30] It has been said on many occasions that natural justice and fairness are to be equated ... And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression "natural justice" has been associated, perhaps too closely associated, with procedures followed by courts of law... [31] The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention..." Counsel for the insurer did not seek to argue otherwise. As always, the devil is in the detail and the circumstances must be examined to see whether, in any particular case, procedural fairness has been denied, bearing in mind the point made by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] that - "Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." It is also important to acknowledge - "[The] reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed... [and to] beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." (Minister for Immigration & Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 (per curiam) at 272)." In Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 the Court usefully summarised the position as follows (at 590 - 592, omitting references) - "It is a fundamental principle that, where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material... A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it". Of particular relevance, as it seems to me, is the following passage - "The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material ... The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material." 21Here, as is made clear by the language of the Panel's reasons, it assumed that the plaintiff had an opportunity to report a significant symptom in his back to the ambulance officers. A moment's reflection would have shown that there were obvious reasons why he might not have had such an opportunity or, even if he did, might have desisted from reporting at that time, given the horrific situation with which those officers were dealing. Merely because he has not addressed this subject matter in the histories which have been recorded cannot justify an inference that he had such an opportunity to report and made no report. I note that the Panel "assumed" that an ambulance would have been called. However, this matter was part of the history obtained by the assessor. The assumption of the Panel did not so much relate to this fact but to the plaintiff having an opportunity to report his back pain. 22Counsel for the insurer submitted that the paragraph of the reasons dealing with the matter was a mere parenthesis or as he put it musing by the Panel. I was initially minded to accept this submission, largely on the basis that it was stated as an assumption and was a matter as to which, in effect, there was no evidence. However, on carefully re-reading the reasons, I have concluded that, to the contrary, this assumption was an important element of the Panel's reasoning. After all, there are many reasons why someone might delay going to a doctor, until the injury became too painful to cope with. It is the fact that no contemporaneous complaint was made which, as I read the reasons, persuaded the Panel that the plaintiff had not been injured on the occasion alleged in his complaint. This was not squarely raised by the insurer's submissions either to the assessor or to the Panel. The conclusion was not, to my mind, "an obvious and natural evaluation" of the material before the Panel. Indeed, the conclusion it drew was far-fetched and unreasonable. In my view, in so doing without giving the plaintiff an opportunity to deal with the issue the Panel acted unfairly and denied the plaintiff procedural fairness. Conclusion 23Accordingly, I make the following orders - (1)The decision of the Panel is quashed. (2)The plaintiff's claim is remitted to the Medical Assessment Service to be dealt with according to law. (3)The second defendant is to pay the plaintiff's costs.