Devic v Motor Accident of Authority of NSW

LEGISLATION CITED : Migration Act 1958 (Cth) Motor Accidents Compensation Act 1999

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 CASES CITED : House v The King (1936) 55 CLR 499 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 Parramatta City Council v Pestell (1972) 128 CLR 305 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165

Dmitar Devic (Plaintiff) PARTIES : Motor Accidents Authority of NSW (First Defendant) Allianz Australia Insurance Ltd (Second Defendant)

B K Nolan (Plaintiff) COUNSEL : Submitting appearance (First Defendant) D J Russell SC (Second Defendant)

NSW Compensation Lawyers (Plaintiff) SOLICITORS : Crown Solcitors Office (First Defendant) Ferguson Lawyers (Second Defendant)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30121/2008 DEVIC V MOTOR ACCIDENT OF AUTHORITY OF NSW & ANOR

JUDGMENT 1 The Plaintiff was injured in a motor vehicle accident on 6 December 2003. He underwent a number of assessments under the CARS system, none of which assessed him with greater than 10% whole person impairment. 2 On 16 June 2008 he made application under s 62(1)(b) Motor Accidents Compensation Act 1999 to CARS Assessor Ford for a further medical assessment. That was rejected by the Assessor on 31 July 2008. Mr Devic now challenges that refusal in proceedings for judicial review.

Mr Devic suffers 3 accidents 3 Mr Devic had a motor vehicle accident in December 2002 where he sustained injuries to his neck and left elbow. His general practitioner, Dr Tomasevic referred him to Dr Sheikh Habib and to Dr Rail, a neurologist for those injuries. It is not clear whether those injuries resolved. 4 Mr Devic then sustained injuries to his right shoulder, back and neck in a motor vehicle accident on 16 October 2003 when his vehicle was struck from behind by a truck. That forced his vehicle into a traffic light pole. Those injuries had not resolved by the time of the 3rd motor vehicle accident, the accident the subject of the present claim. 5 In the 3rd accident, which occurred on 6 December 2003, Mr Devic was stationary at a set of traffic lights when a 4-wheel drive vehicle ran into the rear of his vehicle. The accident must have been of some severity because he had to be cut from the vehicle by the fire brigade and was transferred by ambulance to Liverpool Hospital. He complained at various times of back, shoulder and neck pain. The issue was whether pain and discomfort in the right shoulder area was caused by the 3rd accident.

Assessments and reviews 6 Pursuant to s 131 of the Act no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. 7 Dr Habib had assessed 10% whole person impairment. 8 Under the Medical Assessment Service pursuant to Part 3.4 of the Act Mr Devic was first assessed by Dr Crowle, a specialist in occupational medicine, on 8 February 2005. She accepted that he sustained injuries to the cervico-thoracic spine, the lumbosacral spine and the right upper extremity (the right shoulder) in the accident and she assessed whole person impairment at 10% being 5% for the neck and 5% for the shoulder. 9 Mr Devic was also assessed by Dr Carroll, an ENT specialist, on 18 February 2005 who, although accepting that the Plaintiff suffered some damage to his hearing from the accident, assessed the whole person impairment from those injuries to be 0 per cent. 10 On 20 July 2005 Mr Devic applied for a review of the medical assessment conducted by Dr Crowle but this was rejected on 22 September 2005. 11 On 21 March 2006 Mr Devic applied for reassessment on the basis of deterioration and the application was accepted on 2 June 2006. 12 That led to an assessment by Dr Margaret Gibson on 19 October 2006. She found a 5% whole person permanent impairment based on injury to the cervico-thoracic spine. She discussed at some length the contentious issue of whether the right shoulder injury had been caused by the subject accident. She concluded that there was not a clear history of injury to the shoulder in the contemporaneous material available to her. 13 Mr Devic applied for a review of Dr Gibson's determination but this was rejected on 30 January 2007 by the Proper Officer, Janet Ashpole. 14 Thereafter, Mr Devic made an application for general assessment pursuant to Part 4.4. of the Act and the matter was referred to CARS Assessor Buckley. Mr Devic made application to Assessor Buckley for reference of the matter back to the Medical Assessment Service pursuant to s 62 of the Act. However, on 26 March 2008 in a preliminary telephone conference, Assessor Buckley rejected that application. 15 On 17 April 2008 the matter was reallocated to Assessor David Ford. 16 On 16 June 2008 Mr Devic made a further application, this time to Assessor Ford, pursuant to s 62(1)(b) for referral of the matter for a further medical assessment by a claims assessor. The application detailed the assessments that had previously been made and criticised Dr Gibson in particular for the approach to her assessment. In addition, Mr Devic relied on evidence not seen by Dr Gibson, including a report of a Dr Matalani dated 29 October 2007, clinical records from Dr Tomasevic (the contemporaneous medical records) and a number of statements made by relatives of Mr Devic. 17 The application was rejected by Assessor Ford on 31 July 2008. In his reasons for rejecting the application he said this: "[3] After carefully reading the submissions from both parties, I refuse to grant the application by the solicitors for the Claimant for a review of the present finding of whole person impairment by the Medical Assessment Service. The solicitor for the Claimant has set out in his submissions matters of a factual nature which have already been considered in detail by MAS. I have read the Certificate and findings of Dr Margaret Gibson and I am of the opinion she has carefully and thoroughly considered all of the material put before her and I believe her decision is correct and proper in the circumstances. I am also assisted by the Statement of Reasons for Decision of Janet Ashpole dated 30 January 2007 and I am also of the view that she has given proper and thorough consideration to all of the material and documentation and I also believe her decision is correct.

[4] I further note in the decision of Janet Ashpole there is a reference to the fact the Claimant underwent an x-ray of his right shoulder on 24 December 2003 and the medical assessor noted that the x-ray demonstrated 'long-standing due to (presence of calcification) degenerative changes only, with no suggestion of there having been any acute trauma'. This leads me to make mention of the fact I received further correspondence from the solicitors for the Insurer who have advised me the Claimant was also injured in a motor vehicle accident on 16 October 2003 (2 months prior to this accident) and has lodged a claim for personal injuries with that relevant CTP insurer NRMA Insurance.

[5] At the present time I do not have in my possession all the medical reports, documentation and correspondence in relation to this early accident on 16 October 2003 and therefore, I do not know whether or not there may be a reference in this material to the Claimant having sustained an injury to his right shoulder in that earlier accident." 18 Section 62 of the Act relevantly provides: "(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor." 19 The errors identified by Mr Devic in the determination of the Assessor are said to be these: "(a) The Assessor took into account the reasons of Janet Ashpole. Those reasons, it is said, were an irrelevant consideration.

(b) The Assessor failed to mention the contemporaneous medical history of Mr Devic and has thereby failed to take into account a relevant and material consideration.

(c) The Assessor failed to act judicially in that he failed to refer the matter back for further medical assessment after receipt of the contemporaneous medical records that Dr Gibson had said might be useful." (a) The reasons of Janet Ashpole - an irrelevant consideration. 20 Mr Devic submits that because Assessor Ford refers to being assisted by the Statement of Reasons of Janet Ashpole he must have taken them into account. He says that the Statement of Reasons is an irrelevant consideration because what Janet Ashpole was considering was an application under s 63(3) of the Act which provides: "The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application." 21 The submission by Mr Devic in this regard was made in his written submissions. It was not developed in argument before me. As best as I can understand the submission it is that the task that Janet Ashpole was performing under s 63(3) (to see if there was a reasonable cause to suspect the medical assessment was incorrect) was not the task that Assessor Ford had under the discretion given in 62(1)(b). A subsidiary submission was made that Assessor Ford did not indicate in his Reasons that he had regard to the particulars of the application under s 63 or the reply but, rather, he only read Janet Ashpole's Reasons in isolation. 22 Whilst it is certainly true that the task Janet Ashpole was performing was a different one from that which Assessor Ford was bound to perform under s 62(1)(b) that does not mean that the discussion contained in the Reasons of Janet Ashpole was irrelevant in the light of the basis for the application made to Assessor Ford. The basis of that application derived from what Dr Gibson said at p. 11 of her Reasons: "I was of the opinion there was insufficient contemporaneous medical evidence to conclude there had been a separate injury to the right shoulder occurring as a result of the subject motor accident. Contemporaneous medical notes from the general practitioner may be useful in this regard." (emphasis added) 23 Although Mr Devic, through his solicitors, makes a number of complaints about Dr Gibson's assessment in order to justify an order for further assessment, Ms Nolan of counsel who appeared for Mr Devic acknowledged that Dr Gibson's opinion should be accepted as correct for the purpose of the present proceedings and that I need only have regard to the fact that Dr Gibson said she would be assisted by contemporaneous medical evidence. (In fact, Dr Gibson did not say that she would be assisted but, effectively, that she may be assisted.) The submission made on Mr Devic's behalf to Assessor Ford made reference to what Dr Gibson said in that regard and provided further material as I have mentioned in para 16 above. 24 It is the discussion of the so-called contemporaneous material along with the other material earlier submitted that is the relevant aspect of Janet Ashpole's Reasons. So, for example, Janet Ashpole says (at p. 3 of her Reasons): "While the claimant may have experienced symptoms in the right shoulder at some time after the accident, there is no contemporaneous evidence to indicate that the right shoulder was directly injured at the time of accident. The medical assessor has noted that the complaints made by the claimant to his treating practitioners and the injuries listed on his personal injury claim form refer to pain radiating to the right shoulder from his neck ." (emphasis in the original) 25 Whilst it was unnecessary of Assessor Ford to have expressed his belief that Janet Ashpole's decision was correct (and probably irrelevant to say so) the statement in para 3 about being assisted by her reasons was not an irrelevant consideration when she was discussing the same issue and documents, namely, the issue of whether Mr Devic's shoulder had been injured in the 3rd accident. 26 In my opinion, the only irrelevant matter is the statement by Assessor Ford that he believed Janet Ashpole's decision was correct. When that statement is read in the context of everything that appears in para 3 of his Reasons I do not consider that that belief is of significance in the decision he reached which was earlier said to have been based on a consideration of the submissions made to him and of the Reasons of Dr Margaret Gibson. He was assisted in coming to that decision by the discussion in Janet Ashpole's Reasons but, as I have said, those Reasons discussed the very issue that he had to consider, namely the contemporaneity of the material put forward first to Janet Ashpole for her consideration under s 63(3) and subsequently for Assessor Ford's consideration under s 62(1)(b). 27 This ground fails.

(b) The contemporaneous records - a relevant consideration 28 Mr Devic submits that Assessor Ford has failed to take into account the contemporaneous medical history because he has made no mention of those matters in his Reasons. In the first place it can be accepted that there is no express reference to the contemporaneous medical records. The closest one comes to seeing such a reference is in para 4 of the decision where there is a reference to the x-ray of 24 December 2003. 29 The Second Defendant submits that the Assessor stated that he took into account all the material put before him by the parties. In fact, he says that he carefully read the submissions. Those submissions referred to and annexed the contemporaneous medical material. The Second Defendant submits that there is no indication in the Reasons that the Assessor failed to take this material into account. 30 However, the question of the contemporaneous medical material was but one matter raised in the lengthy submissions lodged on behalf of Mr Devic. That material was obviously of importance because of what Dr Gibson had said concerning its absence before her. It cannot necessarily be inferred that the Assessor had regard to it simply from a general statement that he had carefully read the submissions. 31 In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 the Full Court of the Federal Court dealt with an obligation of the delegate in that case to "have regard" to particular information under certain sections of the Migration Act 1958 (Cth). The delegate was subject to a general requirement to give written reasons under s 66 of the Act why the appellant was not a refugee. The issue concerned a letter which identified the applicant as being an adherent to a group the subject of persecution. 32 The Full Court said: "[212] … [G]iven the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to "have regard" to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in "an active intellectual process" in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so." 33 Making every allowance for the fact that the decision maker in that case was under particular statutory obligations, it does not seem inappropriate to me to apply the principles there discussed to the present decision of the Assessor. Because of the inadequacy of his reasons it simply cannot be determined if he had regard to the contemporaneous medical evidence which was an undoubtedly relevant and material consideration. Indeed, his complete acceptance of the findings of Dr Gibson in relation to the material before her tends to suggest that the Assessor did not give any or any particular attention to the contemporaneous medical evidence because one might have expected him to comment on the potential impact such evidence might have had on her decision. Since she commented that there was insufficient contemporaneous medical evidence before her and opined that contemporaneous medical notes from the GP may have been useful, one would have expected some particular reference to those records by the Assessor when they were supplied for the express purpose of filling the gap that Dr Gibson had identified. 34 Further, it was not quite correct that the submissions made by Mr Devic to Assessor Ford had already been considered in detail by MAS because Dr Gibson had said she did not have some of the material which was contained in those submissions. That seems to me to be an indication that Assessor Ford had not engaged in "an active intellectual process" in relation to that aspect of the submissions and the impact of the contemporaneous medical records on the conclusion reached by Dr Gibson. The Assessor's Reasons appear to be directed only to the question of whether Dr Gibson reached a correct view on the material she had. That was not the task he ought to have been performing. 35 The Second Defendant submits further that the material put before the Assessor in the way of contemporaneous medical evidence was little more than the material that had been put before Dr Gibson. That seems to be an argument that even if the Assessor had regard to the material, his decision would not have been different. 36 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384 Toohey and Gaudron JJ said: "For an error of law to constitute a ground of review under s.5(1) of the AD(JR) Act it is necessary that "the decision [involve] an error of law": s.5(1)(f). For an error of law to be involved in a decision something more than the mere occurrence of error is necessary. The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute. Conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred." 37 It seems to me that under that formulation all that the party alleging the error has to show is that the decision "may" have been different if the error had not occurred. To the extent that the matter is cast in the negative with any evidentiary onus on the party seeking to maintain the decision, that party has to show that it "must be impossible to say" that the error did not contribute or to show that the decision "must have been the same regardless of the error". No doubt the test is formulated in such terms to avoid the necessity for a merits review if it is determined that an error of some sort has been made on the part of the decision maker. 38 If the Bond formulation places the onus on Mr Devic to show only that the Assessor's decision may have been different if he had considered the contemporaneous medical material then I consider that Mr Devic discharges that undemanding onus. If, on the other hand, the Second Defendant is bound to show that it is impossible to say that the error did not contribute or to show that the decision must have been the same regardless of error, then I do not consider that the Second Defendant discharges that onus. 39 The contemporaneous medical records show that at least by 24 December 2003 there were complaints of right shoulder pain. It is ultimately a question in the first place for the Assessor, and subsequently for the doctor to whom any further review is referred, to decide on the contemporaneity of those complaints. In the same way, the Assessor and the doctor are the ones to determine the relevance of the complaints or lack of complaints made in the claim form signed by Mr Devic on 16 December 2003. It is no part of the task of this Court to delve into those matters because they involve a merits review. The only issue is whether the presence of the contemporaneous medical records may make a difference. I cannot say that it is impossible that they would not make a difference. 40 Subject to any discretionary matters (discussed later) this ground is made out. (c) Failure to act judicially 41 In the detailed written submissions filed on behalf of Mr Devic it was made clear that there were only 2 errors claimed being the failure to take into account relevant or material considerations and the taking into account of irrelevant considerations. At the outset of the argument before me, I asked Ms Nolan if they were the only errors or whether there was any other. She then indicated that she wanted to rely on an additional error of the failure to act judicially which, she said, would encompass a lack of reasonableness in the sense said to have been discussed in Parramatta City Council v Pestell (1972) 128 CLR 305. 42 Later, in her oral submissions, Ms Nolan made it clear that the error of the failure to act reasonably was an alternative way of putting the submission that there had been a failure to take into account a material consideration. She said: "I put it variously as failed to take into account a material consideration or failed to act reasonably. It is all in the same area but just described differently. … It is our submission that in this instance, based on the material before the decision maker, that in his exercise of discretion he has miscarried for the reasons that he is either failed to take into account a material consideration and failed to act judicially or acted reasonably. He did not identify whether or not it satisfied the definition of 'contemporaneous medical evidence'." 43 I do not see this further complaint as being a different expression of the failure to take into account a relevant or material matter. That complaint was that Assessor Ford failed to have regard to relevant information being the contemporaneous medical records. The complaint about failing to act judicially is a complaint which assumes that he had regard to the medical records but failed to exercise his discretion correctly having read them. The submission made was that the only correct way that Assessor Ford could have exercised his discretion was to refer the matter for further review, on the basis that Dr Gibson had said contemporaneous medical records would be useful. The basis for that was said to be that Assessor Ford was not in a position to say that the existence and supply of the contemporaneous medical records must have been capable of materially affecting the outcome. 44 That submission seems to me to confuse a number of issues. First, the question of materially affecting an outcome is to be found in s 62(1A) and is only relevant where the application is made under s 62(1)(a) of the Act. Secondly, the issue of whether the outcome might have been different is otherwise a consideration only after a failure such as a failure to consider relevant material has been identified (see Bond above). 45 Dr Gibson might have said that the contemporaneous medical material "may be" useful (note, not "would be" useful) but that statement cannot possibly circumscribe the discretion given to the assessor under s 62(1)(b). It cannot be concluded by the Assessor's refusal to submit the matter for further assessment that he did not act reasonably or judicially. 46 Although House v The King (1936) 55 CLR 499 at 505, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] allow for a process of reasoning from a plainly unreasonable or unjust result to the commission of an error not otherwise easily discernible, there is nothing so plainly unreasonable or unjust in the decision of Assessor Ford not to refer this for review that that principle operates here, on the necessary assumption that he had regard to, and considered, the further material. 47 This ground fails. Discretionary factors 48 The Second Defendant says that even if an error was made the orders should be refused on the basis that a consideration of the materials would not have made a difference to the assessment of the whole person impairment. This is said to derive from the outcome of the earlier assessments. In the first instance none of the doctors, including Dr Habib, had assessed the Plaintiff with greater than 10% whole person impairment. Secondly, even if the matter was confined to assessment of the shoulder, the most favourable assessment to this point was that of Dr Crowle who accepted that the shoulder injury was caused by the accident but assessed its contribution as only 5% to the whole person impairment. 49 The Second Defendant says also that in the absence of a report from a doctor saying that the result would be different and that the shoulder would be assessed at more than 5% there is no point, as a matter of discretion, in allowing the matter to go forward to another assessment. 50 Whilst there is some force in the Second Defendant's submission that the history of assessment thus far points to a similar result even if, most favourably to Mr Devic, the shoulder injury was said to have been caused by the 3rd accident. However, to come to that view this Court would be required to engage in a merits review by weighing up the various pieces of evidence, including reports from doctors, statements from witnesses and the contemporaneous medical records, to try to second guess the doctor who ultimately carries out the further assessment. It seems to me that that is why the test discussed in Bond is so undemanding for a plaintiff and so demanding for a defendant and why the test for interference in fact finding has now been said to be that it must be "illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds" (Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59; (2003) 77 ALJR 1165, and see also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [58]). It is no part of a court dealing with judicial review to second guess a decision maker or make predictions about the result a decision maker might reach beyond the level of those tests. 51 Viewed from another perspective, it cannot be said that there is no utility in making the orders sought. Mr Devic may, if the matter is referred for further medical assessment, obtain an assessment of whole person impairment greater than 10%. Having established error on the Assessor's part, he should not be deprived of that chance.

(1) An order in the nature of certiorari removing into the Court the determination of Assessor Ford made 31 July 2008 in CARS Matter No. 2008/0415KM and quashing that determination.

(2) The matter be remitted to the First Defendant to be determined in accordance with the reasons of the Court and according to law.

(3) The Second Defendant is to pay the Plaintiff's costs of the proceedings.

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