The defendant by notice of motion filed 19 July 2018 seeks orders as follows:
1. That the proceedings be stayed pursuant to s 86(4) of the Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant's request to undergo a FIM assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme ("the Scheme").
2. That the plaintiff pay the defendant's costs of and incidental to this notice of motion.
3. Any other order that this Court deems fit.
The defendant relies upon two affidavits of Greer Stening sworn on 19 July and 12 October 2018, which are Exhibits A and B. I have also had the benefit of reading the affidavit of Toya Kha sworn on 24 August 2018 which is relied upon by the plaintiff.
The relevant legislation is s 86 Motor Accidents Compensation Act 1999 (NSW), which provides:
"86 Medical and other examination of claimant
(1) A claimant must comply with any request by the person against whom the claim is made or the person's insurer:
(a) to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or
(b) to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or
(c) to undergo an assessment in accordance with Motor Accidents Medical Guidelines,
not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.
(2) Any such examination or assessment is at the cost of the person who requests it. The claimant may decline to undergo the examination or assessment unless that person pays the claimant a reasonable sum to meet the reasonable and necessary costs and expenses incurred by the claimant in connection with the examination or assessment.
(3) A claimant must comply with any request by a medical assessor or the Authority to undergo a medical examination or an assessment by the medical assessor for the purposes of a medical assessment under Part 3.4.
(4) If the claimant fails without reasonable excuse to comply with such a request:
(a) the claim cannot be referred to the Authority for assessment under Part 4.4 and any such assessment cannot be continued while the failure continues, and
(b) court proceedings cannot be commenced or continued in respect of the claim while the failure continues.
(5) The regulations may prescribe a rate at which the cost of travel by any specified mode of transport is to be calculated for the purposes of the payment of travel costs under this section."
This legislation has only been considered in relation to an application such as the present in one prior judgment, namely Nominal Defendant v Adilzada [2016] NSWCA 266, where an order of the kind sought by the defendant was made. The Court of Appeal referred to Daly v Thiering (2013) 249 CLR 381 (which I note was also considered by Elkaim SC DCJ at first instance in Adilzada v The Nominal Defendant [2016] NSWDC 24), but that decision was of limited applicability for the reasons explained by the Court of Appeal. The only other decision I have been able to find which deals with this legislation is Allianz Australia Insurance Ltd v Ridge [2018] NSWSC 1239, but that decision turns on other issues and does not assist me in relation to the issues in this case.
It is helpful to start with the consideration of Nominal Defendant v Adilzada. The Court of Appeal held that not only could a defendant request a plaintiff to undergo a medical examination for the purpose of determining eligibility for participation in the Scheme but also that, if a plaintiff or claimant fails without reasonable cause to comply with such request, the court proceedings either cannot be commenced or, if commenced, cannot be continued unless one of the exceptions under s 86 applies. Those exceptions are where an examination or assessment is, "unreasonable, unnecessarily repetitious or dangerous."
In making this order, which is a significant departure from the principles generally applied to personal injury cases where a plaintiff fails or refuses to attend a medical examination, the court had particular regard to the legislation. I note the description of the legislative intent and purpose as set out by Meagher JA in Nominal Defendant v Adilzada at [28]-[32] as follows:
"28 The LCS Act confers an entitlement on the "insurer of a claim" to make an application for an injured person to become a participant in the Scheme without that person's consent. The "claim" is that person's claim for damages in respect of injury caused in a motor vehicle accident (LCS Act, s 5; MAC Act, s 3). The insurer is the "insurer for the purposes of Chapter 4 (Motor accident claims)" of the MAC Act with respect to that claim (s 3(1)). Under ss 78 and 80 of the MAC Act the insurer has the conduct and control of the defence of that claim, as well as of any negotiations to compromise or settle it, and is required to resolve the claim as justly and expeditiously as possible.
29 Section 6 of the MAC Act provides that in the interpretation of its provisions a construction that would promote the objects of that Act is to be preferred to one that would not (s 6(1)). Those objects, identified in s 5, include to provide appropriately for the future needs of those with on-going disabilities; to provide compensation for compensable injuries and encourage the early resolution of compensation claims; to keep premiums affordable, recognising that third-party bodily injury insurance is compulsory; and to benefit all members of the motoring public by keeping the overall costs of the third-party scheme within reasonable bounds.
30 The purpose for the establishment of the LCS Scheme was summarised by Garling J in Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345, in a passage adopted in the judgment of the High Court at [14]. The features of the Scheme include that it cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured; that it would provide for all of that treatment and care, including attendant care, for as long as was necessary on an individually assessed basis; and that because the Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs.
31 Chapter 4 of the MAC Act applies to claims in respect of motor accidents. In the first instance the claim must be made against the third party insurer, which is given the conduct and control of negotiations in respect of the claim, as well as the conduct of any legal proceedings by which it is pursued (s 78(1)). If the claim cannot be resolved by agreement, there is provision for it to be submitted to a process of administrative assessment. If that assessment does not satisfactorily resolve the claim, it may then be determined by the taking of court proceedings (s 107). Chapter 5 applies to the awarding of damages by a court, and to assessments of damages undertaken as part of the administrative process directed to the settlement and resolution of claims.
32 Chapter 4, Pt 4.3, imposes duties on the insurer and the claimant with respect to the assessment and resolution of a claim. Some of those duties are imposed in general terms. Others apply depending on whether court proceedings have or have not been commenced. An overriding duty is imposed on the insurer to endeavour to resolve the claim, by settlement or otherwise, as justly and expeditiously as possible (s 80(1)). The duties imposed on a claimant include to co-operate with the person against whom the claim is made and that person's insurer for the purpose of giving them "sufficient information" to be able to make "an early assessment of liability" and "an informed offer of settlement" (s 85(1)). That duty applies until court proceedings have been commenced in respect of the claim."
Effectively the words "must comply" in s 86 mean that it is mandatory. The word "must" should be carefully attended to by judicial officers, for the reasons explained by Ward JA in Mahommed v Unicomb [2017] NSWCA 65.
This means that the plaintiff, in order to avoid complying with the statutory request, must establish that the examination or assessment is "unreasonable, unnecessarily repetitious or dangerous" or otherwise has a reasonable excuse for failing to do so (see s 86). Mr Daley made it clear that the exceptions to s 86(4) were restricted to the concepts of "unreasonable" and "unnecessarily repetitious", and that here there was no claim on the basis that the procedure (which is a two-hour interview by two medical assessors) was "dangerous".
I will briefly set out the background leading to this application and the circumstances in which, in addition to seeking relief from this court. (The defendant has also sought review of a decision of May 2018 made by the assessment panel, which is the subject of an application for review listed for hearing on 22 October 2018.) The plaintiff was injured in what appears to have been a serious motorcycle accident on 7 September 2013 when his motorcycle collided with the defendant's vehicle on President Avenue in Monterey, New South Wales. As a consequence of the accident, the plaintiff has sustained injuries in the "very severe" range. He was accepted as an interim participant in the Scheme on 27 March 2014 but was discharged on 27 March 2016.
It was in this regard that he underwent medical FIM assessments for the entry and exit of 14 March 2014 and 18 January 2016 as well as, in the interim, an FIM assessment for the purpose of monitoring his progress, which occurred on 2 February 2015. That means that his last FIM assessment was approximately 2.75 years ago.
Essentially, what Mr Daley says is that the defendant was notified by letter dated 12 February 2016 that the plaintiff was to be excluded from the Scheme, but did nothing until 16 October 2017. This was despite being provided with reports from Dr Buckley in November and December 2016, although the text of 8 December 2016 opinion from Dr Buckley, retained on behalf of the plaintiff, was as follows:
"(a) [The plaintiff] would require a live-in carer 24 hours a day, seven days a week… In my opinion he is unemployable on the open employment market and in my opinion should not be allowed to hold a driver's licence. He requires administration of his funds via the New South Wales Trustee and Guardian Act 2009."
It would appear that an application for exemption from CARS was made in about May or June 2017, as the exemption was granted on 21 September 2017 on the basis that the plaintiff was a person under legal incapacity.
While that process was going on, Dr Buckley's report of 10 August 2017, which appears to have been served relatively soon after it was provided, contained an even gloomier prognosis of the plaintiff's condition, namely:
"(a) [The plaintiff] has a traumatic brain injury in the "very severe" range with sever cognitive impairment and emotional and behavioural impairment and is a person under legal incapacity."
Relatively promptly, the defendant made an application to the Lifetime Care and Support Authority for the plaintiff to be accepted as a lifetime participant in the Scheme on 16 October 2017. The authority, also relatively quickly, wrote advising that it would waive the six-month timeframe on the basis that there was no additional medical information about the plaintiff's injury before it.
On 11 January 2018, the authority wrote to the parties, requesting the plaintiff to undergo a further FIM assessment by two members of the assessment panel in order to determine the plaintiff's eligibility for lifetime participation in the Scheme. However, the solicitors for the plaintiff replied stating that their client refused.
Some information about the basis for this refusal is set out in the affidavit of Ms Kha. Although objection was taken to this material by reason of the nature of these proceedings, I have permitted this part of her affidavit to be relied upon. It is, however, in very general terms. Nevertheless, at paragraph 11 of her affidavit she sets out that the plaintiff felt "frustration" being a member of the Scheme because of "repeated assessments and testing involved in being a participant", which I assume is a reference to his having undergone three FIMs while he was in or going out of the system, as well as "the bureaucracy and delay", which included a delay of three months in receiving prescription reading glasses and the plaintiff's dentures not being replaced. This interview took place on 26 May 2015 while the plaintiff was still in the Scheme and I am told simply at paragraph 15 that "the plaintiff's position has remained unchanged since that time".
The difficulties that the assessment panel faced in dealing with this new medical evidence if the plaintiff refuses to attend the medical assessment (and I note that he did not in fact attend the medical assessment on 31 August and there was not a cancellation fee) are set out in the reasons given in the report of the FIM which is Annexure Q to the first affidavit of Ms Stening. I will set out the relevant portion in full:
"Additional information requested. The assessment panel has made several attempts to address the perceived inconsistencies between the final FIM and the findings of Dr Buckley. In correspondence dated 11/1/2018 the panel requested Mr Neskovic undergo an FIM assessment. Rationale for this was provided in further correspondence dated 15/1/2018. It was confirmed in the correspondence from TK Legal dated 24/1/2018 that Mr Neskovic declined repeat FIM assessment.
The panel requested additional information from Mr Neskovic via letter dated 13/2/2018 to reiterate the potential value in conducting a current FIM given the apparent inconsistency between final FIM and information provided by other parties. In anticipation that Mr Neskovic would decline an interview, the panel also posed a series of questions to seek further information on current status of mood, social interaction, work and volunteering, personal care tasks and memory. Questions were derived from the principal areas of discrepancy noted between final FIM and the report of Mr Buckley.
The panel received correspondence from TK Legal on 1/3/2018 indicating they were under instructions not to respond to the letter from the panel dated 13/2/2018.
In the absence of a current FIM or response to this correspondence, the plaintiff sent a notice of provisional findings dated 9/4/2018 stating that the panel did not find Mr Neskovic to meet criteria for eligibility for participation in the scheme. Mechanism and severity of injury were not seen to be in dispute but reports of functional outcomes were noted to be inconsistent across documentation.
The panel noted that the final FIM dated 18/1/2016 appears in accord with the recovery profile outlined in multidisciplinary community living plans, care need assessments dated from June 2014 to August 2015. Also, the final FIM also appears to be consistent with the trajectory of the earlier FIM assessment dated 19/2/2014 and 2/2/2015. The relative weight of the FIM in describing functional outcomes is also directly reflected in its selection as the measure of choice in Criteria for Brain Injury under the lifetime care and support guidelines.
The panel nevertheless acknowledged the apparent decline in function conveyed in Dr Buckley's reports dated 22 April 2016 and 8/12/2016 but in the absence of current FIM, or response to correspondence 13/2/2018, the panel is unable to determine if any deterioration is related to traumatic brain injury.
The panel's notice of provisional findings to all parties also sought submission in writing related to the issues outlined above. Ms Greer Stening of Sparke Helmore advised by email dated 14/5/2018 that no further submissions would be made. The panel also made notice Sparke Helmore's intention to seek a Court order compelling Mr Neskovic to undergo further FIM assessment. The panel elected to close the current application given the indeterminate timeframe associated with a potential Court application. The panel therefore received no further submissions and continued with the determination as outlined in the notice of provisional findings."
This is not a concluded decision of a panel making an administrative decision. It is a good example of an administrative body doing the best it can with the material available, in circumstances where it knows a claim is before the court. What is clear, from the time the proceedings commenced (which I note were commenced on 21 November 2017 by the plaintiff with a tutor) is that the assessment panel was doing what it could to determine issues in the absence not only of a refusal to attend an FIM but also (and I consider this has some considerable weight) in circumstances where the solicitors for the plaintiff refused to reply to a request for information which would have filled a gap.
The defendant has sought a review of that decision arguing, among other issues, that the assessment panel erred by determining a matter without obtaining the requisite current material. Whether that application succeeds or fails is not a matter of importance for this application. What is important is to determine just what it is about undergoing an FIM assessment that is "unreasonable, unnecessarily repetitious or dangerous".
The real issue is whether there has been a deterioration in the plaintiff's condition since he was let out of the scheme. However, the position of the plaintiff was frankly stated by Mr Daley at the outset of proceedings to be that he did not want to be in the Scheme at all. It is quite clear from the plaintiff's solicitor's affidavit that his frustrations with the Scheme in 2015 are still fresh in the plaintiff's mind, and that he feels the same way today.
It is now 2.75 years since the plaintiff underwent the last FIM assessment. There are tests and examinations which, if unnecessarily repeated, can create a problem but, as I understand it, this is a simple examination in the form of a two-hour interview with two medical officers. I see nothing unreasonable, given the apparent significant decline of the plaintiff since 2016, as evidenced in the reports of Dr Buckley, and I am mindful in this regard of the careful analysis of this Scheme by Meagher J at [28]-[32] of Nominal Defendant v Adilzada.
I note that Mr Daley has called in aide to s 56 Civil Procedure Act 2005 (NSW) and the interests of finality of litigation. The plaintiff wants a hearing date and not a referral for a FIM assessment. However, s 56 does not merely require that justice be "quick"; it also requires that proceedings be "just". The application for review, which is on next week, could have a series of results which would render my acceptance of Mr Daley's submissions otiose and, while this has played very little part in my reasons, I have to take into account the reality of the situation where the assessors have not stated not once but repeatedly that a further FIM is considered desirable by them and where there is nothing standing in the way of the plaintiff undergoing this procedure other than personal feelings he had while he was in the Scheme last time, which apparently still remain in his memory.
The granting of a stay in personal injury proceedings was not the subject of specific reference by either party, but I have taken into account the general principles of the desirability of litigation being conducted quickly and efficiently and that stays should only be granted in compelling circumstances. However, an analysis of the relevant principles as set out by the Court of Appeal in Nominal Defendant v Adilzada and the statutory imperatives conveyed by the word "must", in my view, on the facts in this case, constitute ample support for the making of such a stay.
[2]
Orders
Accordingly, the orders I make are as follows:
1. Defendant's notice of motion granted; these proceedings stayed until further order pursuant to s 86(4) Motor Accidents Compensation Act 1999 (NSW) whilst the plaintiff continues to fail to comply with the defendant's request to undergo a FIM Assessment for the purpose of determining his eligibility for lifetime participation in the Lifetime Care and Support Scheme.
2. Liberty to apply on three (3) days' notice in relation to order 1 above.
3. These proceedings placed in the Inactive List until further order (with a review date of 13 December 2018).
4. Plaintiff pay defendant's costs.
[3]
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Decision last updated: 10 December 2018