Mitrovic v Venuto & Motor Accidents Authority of New South Wales

Dr Beran's report of June 2010 32Dr Beran assessed the plaintiff at the request of Dr Sokolovic with a view to excluding organic pathology within the neurological domain as an explanation for the plaintiff's deteriorating level of function, what Dr Beran was told was the plaintiff's "dissociative behavioural disorder". His report was equivocal in the sense that upon his examination of the plaintiff (restricted in part by lack of compliance with his attempts to test her shoulder function) he stated that he could not find any "unequivocal organic pathway" to any condition from which she apparently suffered. He noted that she was unable to provide an explanation as to why she was attending his rooms but thought she had been hit on the head, and that she was totally enervated and walked with the aid of a stick. He recommended a graduated dose of the antidepressant medication Amitriptyline be administered.

Dr Sokolovic's and Mr Milenkovic's reports of November 2010 33On 24 November 2010 Dr Sokolovic provided a medico-legal report to the plaintiff's solicitors directed, in particular, to the side effects from the treatment with the antidepressant medication recommended by Dr Beran. Dr Sokolovic noted that before commencing that treatment the plaintiff's condition had been "relatively stable for a couple of years, but with tendency towards deteriorating mental functioning ... headaches and decreased memory function". He reported that whilst the medication had a positive effect on her headaches to some degree, her mental functioning deteriorated with the development of hypersomnia, a loss of interest in her environment and personal care, and incontinence. 34On 13 November 2010, Dr Sokolovic and Mr Milenkovic made a joint home visit to the plaintiff. Dr Sokolovic reported that the plaintiff was unable to recognise him despite his previous treatment of her. In his opinion the graduated high doses of antidepressant medication had reduced the plaintiff's cognitive ability which, together with other side effects, "most probably points to pre-existing damage to her brain's functional structure" (from the accident). He advised that the high doses of the antidepressant medication be gradually lowered before being completely withdrawn and that he would reassess her at that time. He noted that his observations of the plaintiff were generally consistent with the psychometric testing conducted by Mr Milenkovic in July 2009. 35In his report of 23 November 2010, updating the plaintiff's condition, Mr Milenkovic referred to his report of July 2009 which he advised should be read in conjunction with the November report. 36In his July report Mr Milenkovic offered a diagnosis of a post-traumatic stress disorder and post-concussion syndrome. The diagnosis of a post-traumatic stress disorder was dismissed by Medical Assessor Prior in his report of April 2010. However, as noted earlier, he did not have access at that time to Mr Milenkovic's report where, in the course of a four hour clinical assessment of the plaintiff in her native language of Serbian, Mr Milenkovic administered a variety of psychometric tests including: Rivermead Post-concussion Questionnaire Wechsler Intelligence Test - Serbian version - Vekslerov Individualni Test Inteligencije Rey Auditory Verbal Learning Test Controlled Oral Word Association Test Rey Complex Figure Test (Copy) Benton Visual Retention Test Trial Making Test Community Integration Questionnaire Depression Anxiety Stress Scale, Serbian version. 37In summary, Mr Milenkovic concluded that the psychometric test results were consistent with the plaintiff's clinical presentation and that they identified substantial problems across her cognitive functioning with poor general and word knowledge; poor common sense reasoning and mathematical skills; significant impairments in verbal and visual memory; severe impairment in the visuo-perceptive functions; impaired attention and mental processing speed; mental rigidity; reduced semantic fluency; and executive dysfunction. He also noted that her impairments in daily living activities, her dependence upon her husband and the diminishment of her role in the domestic setting were in contrast with her reported history as a hard-working woman who, before the accident, was active and devoted to her roles of wife and mother. 38He went on to report: The complexities of Mrs Mitrovic's problems create a challenge for diagnostic formulation. Initially, the clinical psychologist at Westmead Hospital found evidence of a mild traumatic brain injury and some post-traumatic amnesia. The Westmead Hospital psychiatrist concluded that Mrs Mitrovic has sustained Traumatic Brain Injury with amnesia for the event and post-traumatic amnesia. Further, the psychiatrist diagnosed a co-existing Adjustment Disorder with depressive mood, and found no evidence of factitious disorder. Sometime later, another psychologist formulated her problems as a Post-traumatic Stress Disorder, Chronic. [This is a reference to Dr Tomic.] [The] severity and extent of Mrs Mitrovic's cognitive impairments may appear disproportionate to the identified mild traumatic brain injury and it further contributes to diagnostic intricacy. Contemporary scientific literature points to co-existence of psychological and organic brain etiology for cognitive, emotional and behavioural problems associated with mild brain injury. It supports the understanding that structural and metabolic changes do occur in mild head injury and that these changes may cause cognitive impairments, such as slowed information processing and difficulties to comprehend the world around. Further, it is understood that microstructural damage can persist and may form the pathophysiological foundation of the persisting sequelae in some patients with mild traumatic brain injury. Also, it is considered that symptoms which persist are also due in part to the person's reaction to the impairment it has caused. That is, psychological reactions to head injury may aggravate postconcussion syndrome. In addition, there is recognition of atypical psychological responses to traumatic brain injury. Mrs Mitrovic experienced an extreme traumatic event involving serious injuries, including a head injury, and intense fear for her life. Some of the emotional responses would also have involved a feeling of helplessness. Cognitive difficulties caused by the head injury, such as confusion and memory problems, hampered her attempts to understand the whole experience. The brain injury disabled her to successfully integrate the numerous sensory, psychological, and biological elements of the traumatic event. Further, treatment of Mrs Mitrovic's injuries occurred in the context of a country very new to her and was conducted by professionals who were speaking in a language that she did not understand. This might have significantly exacerbated her original distress and contributed to a psychological decompensation characterized by gross deterioration of cognitive functions, depressed mood, and impairments in daily living activities. Based on the above findings, I am of the opinion that Mrs Mitrovic has symptoms concordant with a persistent postconcussion syndrome. In addition, there is a co-morbid set of problems that have features of an atypical form of post-traumatic stress disorder with prominent dissociation. 39I note that in his report of July 2009 Mr Milenkovic includes extensive footnotes to the literature and attached, as Appendix 1, a detailed summation of the hospital notes and the reports of specialists at Westmead Hospital. These included progress notes under the hand of Dr Gerard, psychiatrist, where his diagnostic impression was that the plaintiff had sustained a traumatic brain injury with amnesia and some post-traumatic amnesia. I also note a CT brain report on the day of the accident was expressed in the following terms: Clinical History: MVA with LOC at scene. Bruised right temple. Closed Head injury. Findings: A small amount of extra cranial scalp thickening overlying the right frontal bone presumably corresponds to the known contusion in the "right temporal" region described in the clinical history. (emphasis added) 40The finding of a loss of consciousness and Mr Milenkovic's review of the Westmead Hospital notes would appear to be in conflict with the background upon which Assessor McCarthy made her assessment. 41In his two subsequent reports of November 2010 and February 2011, both prepared following a home visit, Mr Milenkovic described a continuing deterioration in the plaintiff's functioning. 42In the November 2010 report he noted finding the plaintiff lying on a sofa facing the wall not registering any recognition of his presence. She was woken by her husband. She moved slowly and was unkempt in her appearance. Psychometric assessment was performed in the Serbian language. Eye contact was intermittent with the plaintiff often looking at her husband expecting him to answer the questions. She spoke in a low tone of voice and produced almost no spontaneous speech manifesting, in his opinion, poverty of thought content and a limited attention span. She had impaired orientation to person, time and place. Her memory was described as profoundly defective. An attempt at administering the Mini Mental State Examination was unsuccessful. He noted the reports of family members that since his assessment in July 2009 she had by November 2010 almost no ability to coordinate domestic activities and depended upon them for assistance with medication and toileting. She was also reported to sleep for most of the day except for short periods when she was woken for food which she consumed passively. As with Dr Sokolovic, Mr Milenkovic also confirmed that he would assess the plaintiff again after she had ceased taking the antidepressant medication prescribed to her on Dr Beran's recommendation.

Dr Sokolovic's and Mr Milenkovic's reports of March 2011 43Mr Milenkovic visited the plaintiff's home on 12 February 2011 for the purpose of that further assessment. He found the plaintiff was more alert and reactive than the previous visit but was tearful, with limited attention, and appeared to be easily fatigued. Despite difficulties in understanding test instructions the Mini Mental State Examination was administered on this occasion. Performance over various segments of the tests revealed severe problems across all cognitive functions; impaired orientation to time, place and people; severe problems in attention, verbal memory, calculation and construction ability. In summary, her performance was assessed by Mr Milenkovic to be in the severe cognitive impairment range. Information provided by her family members, and the observation of the clinician during both home visits, was reported upon as indicating a persisting and profound deterioration in the instrumental activities of daily living with severe deterioration in the plaintiff's condition and functioning requiring high levels of care. 44In March 2011 Dr Sokolovic provided a medico-legal report at the request of the plaintiff's solicitors. He reviewed the assembled medical evidence, including the reports from both Medical Assessors (and the source material upon which they relied) and the reported views of Mr Milenkovic. In his opinion the plaintiff's constantly deteriorating cognitive and psychosocial functioning since the accident, reported upon by Dr Tomic and Mr Milenkovic, and what he described as the plaintiff's then current and severe state of dementia and psychosocial dysfunction, was a process which, having regard to all the facts, including the lack of evidence of any organic impairment which might explain her condition coupled with her pre-accident levels of aptitude and normal psychosocial functioning, was "triggered by" the accident and that the finding by other specialists that she was malingering could not be justified. In coming to that view, and in meeting the opinion of Dr Falcon that she was malingering, Dr Sokolovic drew heavily from the literature, including an article by Dr Miller where the writer commented upon what he considered was the disturbing trend in neuropsychology of disparaging clinical judgment in favour of testing, each claiming to be the true measure of impairment and malingering. Dr Miller went on to say: ...In neuropsychology - as in medicine and psychology in general - tests don't make the diagnosis, the clinician does, using the test results as one part of a whole array of data which include history and records, clinical interview, observation of test-taking and other behaviour, and adequate knowledge of brain mechanisms, cognitive psychology and clinical syndromes. 45Dr Sokolovic offered a diagnosis of "diffuse axonal injury"(a closed brain injury with mechanical or chemical damage to the axons in the cerebral white matter commonly occurring with angular or rotational acceleration) which he was satisfied the plaintiff sustained when her head hit the ground under force in the accident. He went on to say: The event has inflicted on Jovanka no doubt short concussion with subsequent confusion and also with time constant deterioration of her psychosocial functioning. Numerous statements that the impact of the accident was not severe are inappropriate as Jovanka had broken two solid bones as well as having obvious significant external damage of her right frontal temple area which no doubt did result in damage of tissue in her brain. Most certainly the force has resulted in gradual, but subsequently constant deterioration, finally rendering her in the grade of dementia. As previously stated there was a lack of success with Professor Beran's recommended therapy with Amitriptyline, which has resulted in the further deteriorating of her cognitive and psychosocial functioning... 46Dr Sokolovic considered that the diffuse axonal injury, which he claimed was broadly documented and addressed in leading scientific publications in the fields of neuropsychiatry and neuroscience, was the most probable explanation for the change in the plaintiff's personality after the accident, and the constant decline of her psychosocial and cognitive function since that time. He claimed to base his opinion on: ...more than fifty years of personal focusing on basic neuroscience cases using experience and competence both in the field of neurology and psychiatry, while focusing on basic brain science.

The first refusal 47On 17 February 2012 the Proper Officer refused to refer the matter for further assessment and published her reasons for so holding. In summary, and in so far as is relevant for present purposes, she held that: Given that in relation to both brain injury and psychological injuries the previous MAS assessments determined that these injuries were not related to the motor vehicle accident, the claimant's solicitors have not adequately satisfied the requirement to be "such as to be capable of having a material effect on the outcome of the previous assessment". As such I have determined that the application shall not be referred for further assessment. 48That decision was the subject of judicial review by this Court and was found to be vitiated by legal error (Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231). Again, so far as is relevant, Harrison AsJ determined that the Proper Officer failed to exercise the power under s 62 of the Act, in effect by failing to make her own assessment as to whether the additional material relied upon by the plaintiff, or the deterioration in her injury, was capable of having a material effect on the outcome of the previous assessments. Her Honour said at [64]: As Assessor Prior noted in his written reasons, Dr Sokolovic speaks the plaintiff's language and saw the plaintiff numerous times on home visits. The Proper Officer failed to properly consider this, and the other further information in the form of the reports (and, to a lesser extent, the articles). The ultimate paragraph of the reasons indicates that the Proper Officer placed undue weight on the previous assessment, rather than considering the new material, as well as the Medical Assessment Guidelines, which the plaintiff's counsel points to, in particular Table 5.2 in relation to the assessment of psychological injury. It is my view that the Proper Officer's reasons reveal a constructive failure to exercise her jurisdiction pursuant to s 62 and so has fallen into jurisdictional error. 49On 15 October 2012 her Honour quashed the decision of the Proper Officer and remitted the matter to the MAA to be determined in accordance with law. The plaintiff's application that the matter be allocated to a different Proper Officer was refused.

The second refusal 50On 22 November 2012, after the Proper Officer undertook what she described as a "review" of the matter with a view to determining whether the matter should be referred for further assessment in accordance with the test in s 62 of the Act, the plaintiff's application for further assessment was refused a second time. 51In summary, she found that the diagnoses and opinions on causation proffered by Mr Milenkovic and Dr Sokolovic (the diagnoses being what she described as "an organic brain injury and psychological injury") were consistent with the reported views of Dr Todorovic, Dr Tomic and Dr Conrad, each of which were considered by the Assessors but rejected. She also characterised the reports from Mr Milenkovic and Dr Sokolovic on the issue of causation as nothing more than a restatement of the opinions already considered by the Assessors on that issue and, for that reason, the material did not meet the test of additional relevant information about the injury. 52When considering the material in the reports which she accepted was eloquent of a deterioration in the plaintiff's condition, the Proper Officer adopted the same approach to the issue of causation, namely that because the injuries relied upon as having deteriorated had been considered by the Assessors and rejected because of the absence of a causal connection, it followed that despite the fact that the plaintiff's condition had deteriorated, that fact could not have a material impact on the previous assessment. She also held that the reports of Mr Milenkovic and Dr Sokolovic simply assumed that the injury was caused by the accident and that they failed to address how, in light of the findings of the Medical Assessors which she extracted (and which I included at [16], [22] and [26]), the injuries were related to the accident in a causal sense. She also held that she was bound by the findings of the Medical Assessors on the issue of causation citing reliance on Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82, 78 NSWLR 125. 53The Proper Officer then went on to consider whether the report of Dr Beran, neurologist, and the academic articles relied upon by the plaintiff and referred to by Dr Sokolovic were additional relevant information. She concluded that they both met that description but held that neither were capable of having a material effect on the outcome of the previous assessments, in Dr Beran's case because he was equivocal on the issue of causation, and in so far as the academic articles were concerned, because, at best, they provided an alternate hypothesis of injury without any specific link to the plaintiff or her injuries.

The plaintiff's grounds of appeal 54By summons dated 13 December 2012 the plaintiff again invokes the jurisdiction deriving from s 69 of the Supreme Court Act 1970, for an order in the nature of certiorari for what is said to be a series of jurisdictional errors and errors of law which vitiate the Proper Officer's decision refusing the application for assessment a second time (including an assertion of apprehended bias on the part of the Proper Officer). In the alternative, relief is sought on the basis of what is said to be a constructive failure on the part of the Proper Officer to exercise the power provided for in s 62 of the Act. The summons also seeks an order that the matter be remitted to a different Proper Officer to be determined in accordance with law irrespective of whether her decision is found to be vitiated by bias. 55The plaintiff's written submissions were cross-referenced to eight separate legal errors particularised as grounds for review in the summons. There is considerable overlap and repetition between the grounds, due in part to different ways of characterising the legal errors said to infect the decision. I have grouped what appear to me to be interrelated errors for the purposes of this judgment. As will become obvious, it is not necessary that I determine whether each of the grounds for review is made out since I am satisfied that the plaintiff has made good her claim for relief on the basis of the principal grounds relied upon in the hearing. I am also satisfied that the matter should be remitted to a different Proper Officer for determination according to law.

The first error of law 56The first error of law concerns what was said by the Proper Officer in the first paragraph of the decision when, after referring to the orders of Harrison AsJ, she said she undertook "a review of the matter". The plaintiff submitted that to treat the application as a "review" and not a fresh determination of the application (whether or not in the mistaken belief that the matter was remitted to her personally, and not to the MAA, for the purpose of correcting the legal errors in her previous decision) constituted a fundamental misunderstanding of nature of and the exercise of the power she was required to exercise under s 62 of the Act and, for that reason alone, the decision should be set aside. 57In the first paragraph of her reasons the Proper Officer stated: I refer to the Orders of Associate Justice Harrison in the Supreme Court of NSW dated 15 October 2012 remitting the application for further assessment back to the Proper Officer for a determination of this matter according to law. I have now undertaken a review of this matter with a view to determining whether the application for further assessment complies with the test set out in Section 62 of the Motor Accidents Compensation Act 1999 ('the Act'). Section 62(1A) states: (emphasis added) (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. 58On a fair reading of that paragraph I am satisfied that, despite the use of the word "review", the Proper Officer well understood that she was to determine the matter according to law. Furthermore, while Harrison AsJ remitted the matter to the MAA, I am not satisfied that the fact that the Proper Officer referred in her reasons to a remittal "to the Proper Officer", when considered in the context of her reasons as a whole, involved any misconception of her statutory role and function to consider the matter afresh.

The second, fourth, sixth and seventh errors 59After setting out the test to be applied under s 62 of the Act and the meaning of "additional relevant information" canvassed in the authorities, the Proper Officer considered the reports of Mr Milenkovic and Dr Sokolovic for the purpose of determining whether they satisfied that test. As to that question (and/or the question whether there was any deterioration in the plaintiff's condition as the alternate basis under s 62(1)(a)), she regarded the issue of causation, decided against the plaintiff in the original assessment, as determinative: It is clear from the reports of Mr Milenkovic and Dr Sokolovic, both of whom have treated Ms Mitrovic, that they are of the opinion that she has an organic brain disorder and psychological injury that has deteriorated and was caused by the motor accident. This is consistent with the evidence provided in the original application being the reports of Drs Tomic, Todorovic and Conrad. However, the opinions expressed by them for the cause of the injuries have been considered by Assessors McCarthy and Prior and a determination has been made that the injuries listed in relation to the head and psyche are not causally related to the accident. On application of Alavanja, the reports of Milenkovic and Sokolovic do not go to the heart of causation and they are at best a restatement of an opinion on causation already considered by the Assessors in the reports of Tomic, Todorovic and Conrad. Consequently, in light of Alavanja and in particular paragraph 35, they cannot be considered as additional relevant information about the injury. 60The plaintiff submitted that the Proper Officer both misapplied the principles articulated by Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; 56 MVR 499, and/or failed to apply those principles to the facts in this case in accordance with the principled approach, said by counsel to have been adopted and applied by Rein J in QBE Insurance (Australia) Ltd v Henderson [2012] NSWSC 1607, 62 MVR 337. The error in her approach was said to have led the Proper Officer to treat the reports of the plaintiff's treating doctors as nothing more than a restatement of an opinion on causation in the reports of the plaintiff's doctors previously considered and rejected by the Medical Assessors and, for that reason, that the reports were not capable of constituting additional relevant information within the meaning of s 62(1)(a) of the Act. In this connection counsel emphasised that both Mr Milenkovic and Dr Sokolovic were treating the plaintiff in the specialist fields of psychiatry and psychology, unlike Dr Todorovic, a general practitioner, Dr Conrad, a general surgeon and Dr Tomic, a psychologist whose opinion was conditioned by the fact that he had not undertaken any psychometric testing. 61The first defendant insurer submitted that in considering whether the information in the reports of Dr Sokolovic and Mr Milenkovic was additional relevant information and determining that at best they amounted to a restatement of an opinion on causation already expressed, the Proper Officer considered and correctly applied the principles reviewed by Davies J in Alavanja at [31]-[40] and, in particular, his Honour's express agreement at [34] with Rothman J's statement of principle in Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056, 54 MVR 102 at [38]-[41] where his Honour held: [34] With respect, I agree with what his Honour has said in those paragraphs. I understand him not to be saying that any further opinion of an expert would be additional relevant information. Rather, if no expert has already expressed an opinion about a particular aspect of the matter then it would be additional. [35] It seems to me that if material before the Assessor has expressed an opinion that particular injuries were caused by the accident, the fact that another expert says the same thing but using different or greater analysis will not mean the information is additional. This is because there was an opinion to that effect before the Assessor which, on the face of the Assessor's report, was considered. If the opinion has been expressed, as here, that particular injuries are related to the accident, the precise way the doctor explains why he thinks that that is so, cannot amount to additional relevant information. The important matter is the opinion about causation. 62Counsel for the first defendant insurer went on to submit that in QBE v Henderson (the authority upon which the plaintiff placed considerable reliance) Rein J did not come to any different conclusion as to the principles to be applied in determining whether information supporting an application for a further assessment is additional information. To the contrary. His Honour referred to the statements of principle in Alavanja and Garcia with express approval, as he did with the application of those principles in Glover-Chambers v Motor Accidents Authority (NSW) [2010] NSWSC 17, 55 MVR 44 at [38] where McCallum J accepted that a medical opinion will only be additional to the extent that it has not previously been expressed in material before the Assessor, or because the opinion deals with different issues to those already expressed and considered. It was the first defendant insurer's submission that on a close reading of the reports relied upon by the plaintiff there is no practical difference between the opinions of the plaintiff's treating psychiatrist or psychologist and those of the doctors she had earlier consulted despite their differing fields of medical practice and that they did not deal with any different issues than those originally reported upon. 63At [20] Rein J deduced the following principles from the collected authorities without being prescriptive. It appears that his Honour was legitimately concerned to ensure that the settled principles to which he referred are capable of application and, where necessary, adaptation to meet a particular factual scenario: ... (1) if no report on a subject has been provided to an assessor, a later report on that subject will be additional relevant information; and (2) if a report on that subject has been provided previously to an assessor, a new report from another expert will not be additional relevant information even if the new report provides different or greater analysis to reach the same conclusion. 64What Rein J then went on to observe was that none of the authorities dealt with the situation where a report, relied upon as additional relevant information, reached a different conclusion or diagnosis based upon a change in the symptoms of an injured claimant. In the case his Honour was considering a third report from a psychiatrist retained by QBE concerning Mr Henderson's PTSD was said to be additional relevant information despite the fact that the Medical Assessor had taken into account the psychiatrist's views about that subject in the assessment of whole person impairment in two earlier reports. The critical feature of the third report was that while in the earlier reports the psychiatrist accepted that Mr Henderson had PTSD, because of a changed set of symptoms relative to those upon which the second report was based, it was now his view that Mr Henderson no longer suffered from the condition. His Honour was satisfied that because the fresh opinion was based on new information it was capable of being additional relevant information for the purposes of the Act despite the fact that the form and extent of Mr Henderson's psychiatric illness had been previously considered by the Assessor. Were the psychiatrist to have provided a third report based solely upon a reappraisal of his views, without any change in the history or symptoms or expression of feelings by Mr Henderson, his Honour held it would not have met the test for additional relevant information within the meaning of s 62 of the Act. Importantly for present purposes, his Honour also said: [30] The proper officer has placed weight on the fact that causation was considered by Dr Kossoff [the Medical Assessor]. I accept that "causation" was considered by Dr Kossoff but I do not think that the mere fact that causation was considered by the medical assessor means that there can be no additional relevant information which deals with causation. It would only be in a case where no symptoms and no extant condition, physical or psychological, were found in which there would be no need to consider the issue of causation. I accept further that both Dr Allnut and Dr Akkerman, in the reports that were provided to the assessor, considered causation and expressed their views on that topic. There will be cases where the subsequently expressed views of a medical expert by whomever he or she is retained will not be additional relevant information (Alavanja being such an example). 65The new information relied upon by the plaintiff as requiring the principled approach of Rein J in QBE v Henderson, and the source of fundamental error in the approach of the Proper Officer, is comprised in the results of the psychometric tests administered to the plaintiff in her native language of Serbian, first reported upon by Mr Milenkovic in July 2009, and the subject of express inclusion and commentary in his later reports, and relied upon in the report of Dr Sokolovic of March 2011. It was this material, the plaintiff submitted, which served not only to inform Mr Milenkovic's identification of the plaintiff's symptoms as consistent with post-concussion syndrome or an "atypical form of post-traumatic stress disorder" (PTSD being a diagnosis offered in the earlier report of Dr Tomic but without psychometric testing) but also, importantly, the issue of causation which I consider to be resonant in the detailed analysis he applied to that issue consequent upon the results of his testing as set out at length in the extract above at [38]. 66It was further submitted by the plaintiff that by failing to appreciate that the results of psychometric testing were provided, in effect, at the request of Assessor Prior (see his report extracted at [26] above) the Proper Officer failed to have regard to a relevant consideration in determining whether that information was additional relevant information, and that this also amounted to an error of law. In the alternative, it was submitted that she failed to give any proper consideration to that part of Assessor Prior's report where he observed that he would have found the opinions or diagnostic impressions of the plaintiff's treating psychiatrist illuminating, which also amounted to legal error. 67The first defendant insurer submitted that simply because the Proper Officer did not refer to Assessor Prior's remarks, or make express reference to the fact that psychometric testing underpinned the reported opinions of Dr Sokolovic and Mr Milenkovic, or to the fact that the Assessor may have been assisted by those results, it does not follow that she did not take that material into account. 68I accept that in the Proper Officer's reasons she said she had regard to the plaintiff's application, the further submissions, the reply, and the decision of the Court in her consideration of the matter remitted to her. I also accept that in providing reasons for her decision she was not obliged to deal, in detail, with any particular aspect of the material which would have counted against her ultimate decision to refuse the application, equally as I accept that an omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked (see SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [58]). However, because of the treatment provided to the plaintiff by Mr Milenkovic and Dr Sokolovic, and their psychometric testing and review of her progress since the original assessment was cited as a basis upon which the referral for a further assessment was sought and, in addition, because the failure to consider that treatment and the observations of Assessor Prior was one of the reasons Harrison AsJ quashed the Proper Officer's first decision (see [15] and [64] of her Honour's judgment), I am persuaded that the failure of the Proper Officer to mention either the results of testing or Assessor Prior's remarks about its potential to inform a diagnosis, allows for the conclusion that she did not take it into account as a relevant consideration in determining whether the reports of Mr Milenkovic and Dr Sokolovic qualified as additional relevant information. By reason of that approach she did not consider whether they provided, or may have provided, new information upon which a diagnosis of PTSD (or "atypical PTSD") might be based, or additional relevant information informing the issue of causation in the sense referred to by Rein J in the extract at [64] of this judgment. 69Counsel for the first defendant insurer submitted that the plaintiff's complaint that the Proper Officer failed to apply proper principles is a disguised attack on the merits of the decision and, for that reason, is not susceptible to judicial review. He submitted that, properly understood, the plaintiff's challenge, elaborated upon in the course of oral submissions, is to the Proper Officer's factual finding that the reports of Dr Sokolovic and Mr Milenkovic were simply further or additional medical opinions as to the existence or not of the plaintiff suffering from a physical injury (a traumatic brain injury) or a psychiatric condition (PTSD), caused by the accident and, viewed in that way, they are not inconsistent with, or different from, the opinions already provided to the Assessors and rejected. 70That submission (which I have implicitly rejected in light of my finding that error is manifest in the failure of the Proper Officer to consider the "new information" in the reports) does not take into account one of the diagnoses offered by Dr Sokolovic in his most recent report, namely that the plaintiff suffered "a diffuse axial injury" in the accident. On the other hand, that injury was not relied upon in the application for further assessment or referred to by the Proper Officer although it was referred to in the plaintiff's oral submissions before me. The fact that it was not relied upon in the application may be explained by reason of the fact that it would appear to be a diagnosis proffered by Dr Sokolovic beyond the reach of his expertise as a qualified forensic psychiatrist and, for that reason, accepted by the plaintiff's solicitors as not qualifying as an expert opinion. Whether or not that will also be the view of the decision maker after fresh consideration of the matter (about which I make no prediction), I simply make the observation that the only diagnosis by Dr Sokolovic upon which reliance was placed in the application for referral was "traumatic dementia and psychosocial dysfunction". 71The plaintiff also submitted that notwithstanding that deterioration in the plaintiff's injuries was relied on as one of the two statutory gateways for a referral for further medical assessment in s 62(1)(a) of the Act, the Proper Officer also failed to deal with, or to decide whether, in addition to the further information in the reports of Mr Milenkovic and Dr Sokolovic following psychometric testing qualifying as additional relevant information under s 62(1)(a), the fact and extent of deterioration in the plaintiff's injuries (confirmed by clinical assessment and upon which both clinicians reported upon extensively) also justified a referral for further assessment, as being capable of having a material effect on the outcome of the previous assessment. It was submitted that, after accepting that deterioration in the plaintiff's injuries was established, the failure of the Proper Officer to determine the question posed by s 62(1A) constituted jurisdictional error as amounting to a constructive failure to exercise the power under s of the Act (see Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531). 72In that connection the Proper Officer reasoned as follows: To show that the additional relevant information/deterioration is such as to be capable of having a material effect on the outcome of the previous assessment [the Proper Officer's emphasis], there must be submissions and/or evidence to point to the injury being caused by the accident. The reports of Mr Milenkovic and Dr Sokolovic clearly show deterioration in the claimant's condition and an injury. The reports from these treating practitioners may hold considerable weight if I was not required to address the issue of causation of the injury in light of the previous assessment outcomes. What the reports do not show is how the injury could be caused by the accident in the light of the previous Assessors' findings. The reports of both treating health professionals assume the causation of the injury to be the motor vehicle accident but do not address how the injuries are causally related... 73The plaintiff further submitted that even if the Proper Officer's reasons in the above extract allowed for a finding that she did give adequate consideration to the issue of deterioration as potentially justifying a referral for further assessment, she misdirected herself as to the capacity of that fact to have a material effect on the outcome of the previous assessment by affording binding weight to the previous assessment outcomes on the issue of causation. As a consequence, it was submitted, she failed to determine for herself whether the progressive deterioration of the plaintiff's injuries was itself capable of having a material effect on the outcome of the previous assessment by informing the question of causation in the ways suggested by Mr Milenkovic and Dr Sokolovic, and that this amounted to a constructive failure to exercise the power in s 62 of the Act. 74I accept that the Proper Officer was entitled, indeed obliged, for the purposes of undertaking the analysis required under the Act to identify causation as a primary issue on the application and to afford the decisions of the Assessors appropriate weight on that issue. I am also persuaded, however, that the tenor of her approach to the question of causation, inclusive of her arrogating to herself the determination of whether there was a proven causal connection between the plaintiff's injuries and the accident, instead of limiting her assessment to whether the deterioration in the plaintiff's injuries was capable of altering the previous finding of a lack of causal connection, constitutes error. The Proper Officer's citation of Mills in the following passages, in the context of reasoning to the need to consider causation as a substantive issue on the application, exemplifies the error in her approach. She said: In making this decision according to law I am obliged to take into account the decisions of the previous Medical Assessors, being Assessor McCarthy and Assessor prior, where each determined that the [plaintiff's] head injury and psychological condition were not caused by the accident. Causation of the injuries assessed is a substantive issue to be determined when making my decision to accept or reject this application for further assessment. Arguments have been made, primarily in the hearing before Harrison AsJ that "the plaintiff submits that it was directly contended in her submissions that there were two organic brain disorders caused by the subject motor vehicle accident". This was accepted by Harrison AsJ as she found "in her view the plaintiff adequately addressed the issue of causation. It was made clear to the Proper Officer that the basis of the plaintiff's application was that the two organic brain disorders were caused by the subject motor vehicle accident". Indeed, Harrison AsJ states at paragraph 62 "the Proper Officer erred in characterising the lack of submissions on causation". I refer to Motor Accidents Authority of NSW v Mills [2010] NSWCA 82 ('Mills'), which is a matter that deals with the issue of causation in applications pursuant to sections 58 and 62 of the Act. Mills is proposition for the fact that a Certificate issued by a Medical Assessor is conclusive as to both the degree of permanent impairment and as to whether the degree of permanent impairment as a result of an injury was caused by the accident. ... Assessors McCarthy and Prior have clearly determined that the injuries suffered by the claimant are not caused by the accident and were unrelated therefore attracting no whole person impairment rating. These certificates are binding on the parties and the Court... 75In my view, rather than assuming the injuries were caused by the accident (the view of the Proper Officer, likely influenced by what I am satisfied is an erroneous approach to the issue of causation), an informed reading of Dr Sokolovic's report (and with lesser emphasis by Mr Milenkovic) supports the conclusion that he regarded the profound and progressive deterioration in the plaintiff's psychological and social functioning as inconsistent with a finding of malingering upon which the Assessors placed considerable weight.

The eighth error 76I do not consider it necessary to resolve the question whether the plaintiff has made good the ground of appeal that alleges the reasons of the Proper Officer are indicative of actual bias and whether, in those circumstances, I should direct that the matter be determined by a different Proper Officer. Whilst it cannot be gainsaid that the Proper Officer who refused the first and second applications would fail to afford the parties and the material upon which they rely a further consideration of the material and submissions without pre-judgment, I am satisfied that in circumstances where her decision has been the subject of a successful challenge by the plaintiff on two occasions that it is appropriate the matter be determined by a different Proper Officer. I propose to give a direction to that effect.

Postscript 77After hearing submissions from both parties, and after the plaintiff's counsel had advanced oral submissions in reply, counsel for the first defendant insurer raised, for the first time, the question whether the material upon which the plaintiff relied in support of the application for further assessment operated as a jurisdictional fact and whether, for that reason, the role of the Court on judicial review is to determine whether or not, on balance, that jurisdictional fact exists. He relied upon what he submitted was the binding authority of Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; 57 MVR 157 per Rothman J (when read together with Singh (No 1)) on the question. The plaintiff's counsel submitted that both cases had been effectively overruled by the Court of Appeal in Rodger v De Gelder [2011] NSWCA 97, 80 NSWLR 594. 78I gave the parties leave to exchange and file submissions (on what I was led to believe was a limited issue) and, if necessary, to approach the Court for a further oral hearing if the matter remained contentious. Lengthy submissions were furnished by both counsel. 79Since the submissions were filed, Rothman J has published judgment in QBE Insurance (Australia) Ltd v Motor Accidents Authority (NSW) [2013] NSWSC 549. After considering the judgment of the Court of Appeal in Rodger v De Gelder, and deferring to the finding of the Court that a Proper Officer is required to act judicially in the exercise of the statutory power under s 62, his Honour said at [64]: In my view, in light of the judgment of the Court of Appeal in Rodger v De Gelder, the preferable construction is that the criterion in s 62(1)(a), namely, that the medical dispute may be referred "only on the grounds of the deterioration of the injury of additional relevant information about the injury", is not a jurisdictional fact. Nor is whether the deterioration or additional relevant information "is such as to be capable of having a material effect on the outcome of the previous assessment". 80In the result, and after my own reading of Rodger v De Gelder, I am of the view that the first defendant insurer's further submissions on the issue of jurisdictional fact were misconceived.

Orders: 811. The decision of the Proper Officer in matter number 2012/04/0151 issued on 22 November 2012 is vitiated by error of law. 2. An order in the nature of certiorari removing into this Court the decision of the Proper Officer issued on 22 November 2012 in matter number 2012/04/0151 is to issue and that decision quashed. 3. The matter be remitted to the Motor Accidents Authority of New South Wales to be determined by a different Proper Officer in accordance with law. 4. The first defendant insurer is to pay the plaintiff's costs as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2013