Pan v Kuhn

Issues 3Three relevant issues emerged on the application, first whether in reality, new material or, to use the language of the statute, " additional relevant information about the injury " has emerged which legitimately calls for a MAS re-assessment pursuant to s 62(1)(a) of the MAC Act , secondly , whether the applicant defendant has provided a satisfactory explanation for the delay in bringing the application so as to justify the order sought, and thirdly , complaints by the applicant defendant as to the state of the particulars. The contention of the respondent plaintiff is that no relevant grounds have been established to justify the course sought by the defendant applicant.

Facts 4The plaintiff is presently aged 58 years. She originates from China and she is presently in Australia without a valid visitor's visa. Before her injury she was working in this country. She was injured in a motor vehicle collision on 20 January 2007. The plaintiff has claimed that in the collision, she sustained injuries to her cervical and lumbar spines. She also claims to have suffered injuries to her face, right arm and her left arm. She claims continuing problems in these areas, including scarring to her right arm, and resultant psychological problems. She also claims damages for future loss of earning capacity. 5On 23 October 2008 the defendant's insurer admitted a breach of duty of care in respect of the collision in question. 6The facts relevant to the application are, for present purposes, limited to the steps taken to arrange medical assessment of the plaintiff, and related procedural matters that arise. 7During 2009 and early 2010, steps were taken by the parties to proceed to obtain a MAS assessment of the plaintiff's level of whole person impairment. Those steps culminated in the appointed MAS Assessor issuing a MAS certificate for 13 per cent whole person impairment of the plaintiff. An assessment of greater than 10 per cent whole person impairment enabled the plaintiff to make a claim for damages for non-economic loss. Beforehand, on 20 August 2009 the defendant received a report from Dr Robin Fitzsimons, a consultant neurologist. That report, which was dated 18 August 2009, assessed the plaintiff's impairment at zero per cent. 8It appears from the affidavits and exhibited materials that at some stage, precisely when is not apparent, the defendant took the view it was dissatisfied with the MAS assessment issued in this case. The defendant exercised the right to continue to obtain further medical examinations and reports in relation to the plaintiff's condition in preparation for a hearing. 9The defendant is in receipt of a number of medical reports it had commissioned as a result of examinations of the plaintiff for the purpose of this litigation. 10On 9 November 2010, the defendant obtained a further report from Dr Fitzsimons. On 15 November 2010, the defendant received a report from Dr Nigel Menogue, a consultant specialist in musculo-skeletal medicine. On 17 November 2010, the defendant obtained a report from Dr David Maxwell, a consultant orthopaedic surgeon. Each of those experts advised the defendant that in their opinion, the plaintiff suffered a level of whole person impairment not greater than 10 per cent, in some cases, zero per cent. However, those opinions did not relevantly constitute a MAS assessment. 11On 15 February, some 77 days after a hearing date for the proceedings had been fixed, the defendant forwarded to MAS a form described as a 4API form, which comprised an application to MAS for a further assessment. 12The evidence discloses that at some stage beforehand, it is not entirely clear as to precisely when this was, the defendant had earlier formed the intention of seeking a MAS re-assessment of the degree of whole person impairment suffered by the plaintiff, with the objective of seeking to remove the plaintiff's entitlement to claim damages for non-economic loss, thereby reducing the level of the plaintiff's ultimate entitlement to damages for her injuries. That objective, if successful, had the significant potential to adversely affect the right of the plaintiff to compensation for her injuries. 13To achieve that objective, the defendant was required to make submissions to MAS based on new circumstances and medical evidence. 14On 22 February 2011, following the lodgement of the application for re-assessment by MAS, the solicitor for the defendant was informed by a MAS official, that due to a backlog of MAS assessments, it was unlikely that MAS could deal with the defendant's request for an assessment before the commencement of the scheduled hearing on 24 March 2011. Those circumstances then led the defendant to apply to vacate the hearing date for 24 March 2011. 15It is clear that even if there was sufficient time for such an a further MAS assessment to take place before the hearing, if the plaintiff was dissatisfied with that further assessment, there would be insufficient time before the scheduled hearing to deal with the full processes of an entitlement to a review, and still preserve the hearing date. The evidence discloses that if the hearing dates were to be vacated, the process of notifications and examinations, and the administrative requirements concerning an ensuing MAS re-assessment would involve a delay of at least some months, which would take the timetable well past the appointed hearing dates. 16Before giving consideration to the evidence that relates to the issues that call for decision, the nature of the defendant's application requires that I outline something of the detail of the procedural history of the proceedings as it impacts on the defendant's entitlement to the relief sought.

Procedural history 17On 23 December 2009, the plaintiff filed her statement of claim and the related particulars. At that time, the court issued a standard general list timetable and directions. A pre-trial conference date was fixed for 3 March 2010, and a status conference date was set for 28 July 2010. In the meantime, the defendant filed an appearance on 22 January 2010. 18On 3 March 2010, the solicitors for the parties attended the scheduled pre-trial conference before the Judicial Registrar and consent orders were made. Those orders provided for a timetable for the filing of a defence, the request and reply to particulars, and the service of medical evidence. 19Notwithstanding the earlier admission of a breach of duty of care by the insurer, the defence filed by the defendant on 27 April 2010 denied that the collision was due to the negligence of the defendant, but at the same time conceded that the plaintiff was entitled to a verdict in her favour, with damages to be assessed. 20On 28 July 2010, the solicitors for the parties attended a status conference hearing before the Judicial Registrar and consent orders were made to the effect that the defendant was to indicate by 28 October 2010 whether it was conceded that the plaintiff had met the threshold for a whole person impairment that entitled her to claim damages for non-economic loss. Other orders made at the time concerned the obligation of the plaintiff to file updated medical evidence and particulars by 24 September 2010, and for the defendant to serve any further medical evidence by 24 October 2010, and to serve all expert evidence by 26 November 2010. At that time, the proceedings were stood over to a directions hearing and case management listing scheduled to take place on 30 November 2010. 21On 30 November 2010, a solicitor on behalf of the plaintiff attended before the Judicial Registrar and mentioned the appearance of the solicitor for the defendant. At that time a hearing date was allocated to commence on 24 March 2011, with an allocated estimate of 2 days. At that time the representatives of the parties had agreed to consent orders to the effect that the defendant was to request any further particulars in relation to the plaintiff's claim within 14 days and serve all medical evidence by 10 January 2011. The plaintiff was to serve an amended statement of particulars by 20 January 2011. The parties were also ordered to undertake a settlement conference prior to the hearing date. 22In response subpoenas for production of documents, issued at the request of the parties, 11 packets of documents were produced to the court. The documents produced on subpoena ranged from insurer's files, police records, medical records, Centrelink records, records of the Department of Immigration, Medicare, as well as in relation to the plaintiff herself. 23Significantly, the Centrelink records were produced on 13 September 2010, the Department of Immigration records were produced on 23 September 2010, and the Medicare records were produced on 27 September 2010. Access orders for these materials were made on the dates they were produced to the Registry. An order was made for proposed general access to the plaintiff's material for 24 November 2010. 24There is no relevant dispute that there was a delay on the part of the solicitor for the defendant in inspecting the documents that were produced on subpoena. 25I was informed that a settlement conference between the parties took place on 15 February 2001, following which, the matter remained unresolved. Although the representatives of the defendant took the opportunity of the settlement conference to advise the representatives of the plaintiff for the first time that it was intended to seek a MAS re-assessment, it was not until 24 February 2011 that the defendant filed the present motion seeking to vacate the hearing dates fixed for 24 and 25 March 2011. 26The present motion was served on the plaintiff on 28 February 2011, some 13 days after it was flagged, and some 18 clear working days before commencement of the scheduled hearing. The motion to vacate the hearing date was heard yesterday, on 7 March 2011. 27There are a number other relevant dates and events that are more conveniently dealt with in conjunction with the analysis of the issues to which those dates relate, and which arise on the present application.

Consideration of Issue 1 - Whether new material has arisen 28At the outset, it is important to determine whether the material relied upon by the defendant in support of its application for review truly represents " additional relevant information about the injury ": s 62(1) MAC Act . 29Whether or not " additional information " has come to light, rather than simply the existence of a restatement of existing information already received, or issues already reviewed, is a question of fact: Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056, per Rothman J, at [38]. 30In determining whether or not " additional relevant information about the injury " has arisen, it is important to observe that such information does not arise simply because a party chooses to commission additional medical reports. If the contrary were true, there would never be an end to controversies arising from medical assessments: Singh v Motor Accidents Authority of NSW [2010] NSWSC 1443, per Rothman J, at [45], following Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182, at [43], per Davies J. 31In this context, the critical feature that distinguishes information as having the character of being additional is where it is evident that it has not hitherto featured in the consideration by the MAS Assessor. 32The relevant question then becomes whether, on the most recently obtained medical evidence relied upon by the defendant, and which post-dates the MAS Assessor's certificate, something new or additional, and of relevance has emerged, justifying a re-assessment by MAS. 33The plaintiff contends that the material submitted in support of the application to MAS for re-assessment is not new, and constitutes subject matter that has already been considered by the MAS Assessor. The plaintiff submits that all that is new is that the defendant has gathered new reports, but the subject matter within those reports has already been the subject of medical examination and assessment by the MAS Assessor. To understand the plaintiff's submission it is unfortunately necessary to examine some matters of detail from within the evidence tendered in this motion. 34Having examined those materials in detail, for the reasons that follow, I have concluded that I should accept the plaintiff's submissions as being correct. 35The starting point that leads to that view is the defendant's 4API MAS application form at page 8, where the basis of the request is made plain, namely a re-assessment of the plaintiff's lumbar spine: "GJM-1", page 8. This is in contrast to the initial MAS assessment, which related to the plaintiff's right arm, face, left arm, neck and lower back, as well as her psychiatric status of a claimed adjustment disorder: annexure to Ms Wyatt's affidavit, page 9. 36The point of distinction is of some significance when the insurer's submission in support of a re-assessment is examined in the light of the medical evidence. It is apparent from that examination, that the application by the defendant is based on erroneous assumptions, as was submitted by the plaintiff. It is not based on new material or additional information in the relevant sense, at all. 37The original MAS certificate dated 14 March indicates that the 13 per cent whole person impairment assessment referred to the plaintiff's right upper limb, lower back, neck and left arm: "GJM-1", page 16. 38In support of the application for re-assessment, the defendant has asserted that the MAS Assessor failed to have regard to the MAS guidelines for assessment by not bringing to the attention of the plaintiff, apparent inconsistencies in her presentation concerning her range of movements when comparisons were made between formal and informal examinations: "GJM-1", page 12. However, when that issue is examined more closely in the MAS assessment report, it is apparent that those comments by the MAS Assessor relate to the plaintiff's cervical spine, and not to her lumbar spine, the area now sought to be re-examined: "GJM-1", page 8. 39Further, in support of the application, the defendant makes reference to three medical observations from within the reports by Dr Fitzsimons, Dr Menogue and Dr Maxwell, to the effect that the plaintiff has exhibited evidence of non-organic manifestations, or exaggerated manifestations, quoting the report of Dr Fitzsimons: "GJM-1", page 13. In support of the application, the defendant makes reference to those three medical observations as identifying alleged inconsistencies. The difficulty with the reference to these matters is twofold. First , that they are references to general matters that are not specifically related to the lumbar spine, and in relation to the specific inconsistency relied upon, it relates to an observation of the plaintiff's right arm - "GJM-1", page 13, which is not the asserted basis for the re-assessment. Secondly , the asserted inconsistencies are not new matters as they were already the subject of consideration by the MAS Assessor, as is plain from the material that was before the Assessor. 40The Assessor clearly examined the plaintiff's lumbar spine and made assessments of the range of movement: "GJM-1", page 22. It is therefore incorrect to assert that no formal or informal examination of the lumbar spine was carried out. In fact, the Assessor concluded - at "GJM-1", page 24, that despite the presence of exaggerated pain behaviour in the plaintiff, on the whole, the clinical presentation was consistent with the complaints. Clearly, on the evidence before the Assessor, this involved a consideration of alleged inconsistency that the defendant now seeks to have raised again. The Assessor also noted that his findings concerning the cervical and lumbar spines were similar to those mentioned in the other reports which had been provided to him. In this regard, he specifically stated that he observed the plaintiff's range of movements outside formal examination to be better then those measured in formal examination: "GJM-1", page 25. This again serves to confirm that the alleged inconsistency now sought to be raised, has already been considered by the MAS Assessor, contrary to the position asserted in the defendant's MAS application. 41This latter observation, which obviously also related to the plaintiff's lumbar spine, clearly indicated that the Assessor took matters of argued inconsistency into account, including by reference the comments within the other reports that had been provided to him: for example, "GJM-1", page 39 (Dr Evans). 42Accordingly, the reliance by the defendant on the reports of Dr Fitzsimons, Dr Menogue and Dr Maxwell, as summarised in the submissions within the application for re-assessment, which claim the plaintiff's lumbar problems involve no impairment, and have thus resolved, demonstrates that the commentaries relied upon by those examiners deal with matters that have already been considered by the MAS Assessor, and are not new matters requiring re-assessment even though those comments appear in newly acquired reports, but as re-iterations : "GJM-1", pages 12-15. In my view, this analysis exposes the flaw in the defendant's application. 43Furthermore, when the defendant's references to the MAS Assessor's assessment of the plaintiff's exhibited range of movement are examined - at "GJM-1", pages 22 and 23, it is clear that the Assessor's findings that are sought to be re-assessed, relate to the plaintiff's cervical spine, yet the defendants application for re-assessment is restricted to the lumbar spine. The argument submitted to MAS in support of an application for re-assessment therefore proceeds upon an incorrect premise. 44The foregoing analysis leads me to the view that there are no new matters that have not been previously assessed or considered and that now require assessment by MAS. There are only new reports, which is an entirely different consideration. 45On the foregoing analysis, I find that no new or additional information about the injury has emerged: Garcia , at [38]; s 62(1)(a) MAC Act . All that has emerged is additional or further medical reports obtained by the insurer: Sing ; Alavanja . This material raises no additional relevant information : s 62(1)(a) MAC Act . Accordingly, I find that no justification has been made out for vacating the hearing date on the ground of the intention or argued need to pursue a MAS re-assessment.

Consideration of Issue 2 - Whether the delay has been satisfactorily explained 46In his affidavit sworn on 7 March 2010, Mr Mallos seeks to set out some explanatory details concerning the events in question. The context is the need for the defendant to explain the delay in bringing the present application. 47Although Mr Mallos makes it clear that he was not present at the directions hearing on 30 November 2010 when the hearing date was fixed, the notation of the court file shows that the person who appeared for the plaintiff on that occasion, also mentioned the matter on behalf of the defendant. The consent orders dated 30 November 2010 bear the name of the solicitor for the defendant. I do not need to decide whether that was a notation affixed to the document by someone else on his behalf and/or with his authority, or whether it was his signature on the document, because the mention in question dealt with consent issues that the defendant does not now seek to have re-agitated, and there was no attempt to vacate the date at an earlier point in time on grounds of an erroneous listing. 48Mr Mallos has further stated that it was not his expectation that on 30 November 2010 a date would be fixed for the hearing. He stated that his understanding in that regard was based upon the prevailing state of the correspondence between the parties concerning particulars of loss of earning capacity. Be that as it may, a hearing date was fixed, and no early attempt was made to seek to have it vacated. His affidavit traced the history of that correspondence, a topic to which I will return in relation to the third issue which concerns particulars. 49The affidavit of Mr Mallos also traced the history of difficulties he had experienced concerning obtaining responses to subpoenas issued to the plaintiff to produce financial records in the period August to November 2010. In my view, the significance of that correspondence, as it might impact on grounds for a vacation of the hearing date, has receded somewhat in its importance as the plaintiff has abandoned her claim for past loss of earning capacity, and has restricted her claim for economic damages to a claim for future loss of earning capacity. 50In compliance with the consent orders made by the Judicial Registrar on 30 November 2010, concerning a pre-trial settlement conference, the parties convened a settlement conference on 15 February 2011. 51Mr Mallos explained, candidly, that the lodgement by the defendant of the application for a further MAS assessment was deliberately held back, including from the plaintiff it appears, pending pursuit of the possibility of a settlement. That position was taken with a view to saving the additional expense and costs associated with an application for further assessment. Whilst this course may be understandable, it is was clearly a deliberate forensic decision by the defendant that involved a tactical decision not to inform the plaintiff in the lead-up to that conference, of the defendant's intentions should the matter not settle at that conference. 52In my view, that stance carries procedural consequences. There comes a point in litigation where the parties have to place their tactical cards on the table concerning procedural matters, as trial by ambush is undesirable : Nowlan v Marsland Transport Pty Ltd [2001] NSWCA 346 : per Heydon JA at [30]; White v Overland [2001] FCA 1333 at [4] per Allsop J. In my view, in this case, that point crystallised when the hearing date was taken and was accepted by the parties on 30 November 2010. 53A period of 77 days then passed between 30 November 2010, when the hearing date was allocated, and 15 February 2011, which was the date of the pre-trial conference. In that time, the defendant chose to keep his tactical cards close to his chest, and he did not lay them on the table. The gamble the defendant took with such a course was that if the case settled at the conference on 15 February 2011, significant costs would have been avoided, including the cost of the re-assessment application. But if the case did not settle at that time, as turned out to be the case, he took the risk that a late and untimely application for re-assessment could be seen as possibly jeopardising the hearing date, thus resulting in an untimely and possibly unmeritorious application to vacate the hearing date. 54Unfortunately for the defendant in this case, the later risk materialised, and in my view this has left the defendant bereft of sound or proper grounds for vacating the date. In my view, at the stage the proceedings reached when the case was fixed for hearing, the rights of the parties to seek to change the procedural foundations and parameters of the case became irrevocably altered, subject to the orders of the court, and they were governed by the requirements of justice and fairness, within the scheme of the Civil Procedure Act 2005 [" CP Act "]. 55Doubtless, the defendant would have preferred to pursue the opportunity of facing the plaintiff with stronger evidence with which to defend the claim, and to seek to rely upon circumstances where the defendant's exposure to potential damages was reduced, such as would occur in the case of a possible removal of the plaintiff's right to claim damages for non-economic loss. However, once the case was allocated a trial date, such activity came within the purview and control of the court's case management processes. Any substantive changes required that the court make facilitative orders that needed to be justified, including on grounds of fairness to the opposing side. 56In my view, in this context, the defendant has not demonstrated, by satisfactory explanation, that proper grounds exist for vacating the hearing date. All that has been shown is that the defendant took its chances with the tactical position it adopted in approaching the pre-trial settlement conference and the trial. In that period, the defendant allowed delay to encroach. That is an explanation, but that explanation is not a satisfactory basis for vacating a hearing date. In my view, by the defendant taking that course, and by holding back from signaling to the plaintiff at an early stage, the intention to seek a MAS re-assessment, or to seek a vacation of the hearing date, in fairness to the plaintiff, the defendant has lost the opportunity to now pursue that course: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 57In my view, to accede to the defendant's request to vacate the hearing date so close to the trial would be contrary to the principles stated in Aon , and contrary to the spirit and the requirements of ss 56-58 of the CP Act 2005, including the need to facilitate justice between the parties in a quick, just and cheap way. The course the defendant seeks will, in my view, involve unreasonable delay and unnecessary cost to the parties and to the Court's interests in ensuring that minimal inconvenience arises to other parties in the orderly disposal of the Court's business.

Consideration of Issue 3 - Particulars of the claim for economic loss 58Although I have rejected the application by the defendant on two other bases, for completeness, I shall briefly deal with the various arguments raised by the defendant over the state of the particulars concerning the plaintiff's claim for loss of earning capacity. 59First , although the plaintiff has abandoned the claim for past loss of earning capacity having previously particularised a specific claim, and some scepticism or suspicion may arise in the minds of the defence team, that factor alone cannot be a sufficient matter that should result in a lack of readiness to meet the plaintiff's case as it involves an abandonment of a claimed head of damage. 60Secondly , the plaintiff's claim for loss of earning capacity has now been reduced to one that is based on a general diminution of earning capacity. That claim is to be assessed by reference to statistical yardsticks, including average weekly earnings. That claim will stand or fall on the facts and the medical evidence, including any evidence and arguments concerning any residual earning capacity. On the medical evidence that I have seen annexed to the affidavits read on this application, I consider that the defendant should have little if any difficulty in readying itself to address the general nature of that claim. 61Thirdly , and understandably, since the defendant has recently come to know that the plaintiff, as a foreign national from China, is present in this country without a visitor's visa, and has been working in this country, apparently without an appropriate visa, the defence team envisages some further preparation being required in respect of the claim for loss of earning capacity. Indeed, the defendant has a right to take steps to prepare itself in that regard. However, in my view, those rights became circumscribed by the lateness of the defendant's attempts to access the records relating to the plaintiff that were produced on subpoena by the Department of Immigration, noting that the defendant could have had such access on 27 September 2010 and subsequently, but chose not to do so for whatever reason. 62In those circumstances, I do not consider it appropriate that the hearing date be vacated on that account, or for the stated purpose of obtaining expert evidence on the plaintiff's immigration status, including her future status, as it might arguably impact on her claim for loss of earning capacity. The time and opportunity for the defendant to take that course has passed because the trial is imminent. In any event, I take the opportunity to observe that the relevance of such a report would be doubtful, and probably speculative. In my view the defendant does not need to go to those lengths to prove what might occur in relation to future uncertain or hypothetical events: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. 63These are factual matters that do not require expert evidence. To the extent that questions or issues involving immigration law may be involved, I consider that recourse to expert evidence on the point is not necessary. The defendant, through his legal representatives, ought to be able to marshal the relevant legal points and authorities without resorting to the need to tender a report from an immigration lawyer.

Conclusions 64For the reasons I have given, I consider that the defendant has failed to make out its claimed entitlement to a vacation of the hearing date. Furthermore, I consider the untimely nature of the application to be a likely cause of significant prejudice to the plaintiff if the application were to have been granted. 65In that regard, I consider that it would be unjust for the plaintiff to have to endure a delay of uncertain duration, but at least for some months, before she could have a hearing fixture re-allocated. That is not a matter that can be adequately remedied by simply making a wasted costs order. Given the MAS delays that have been identified, and given the Court's listing arrangements, it would be quite possible that a further date would not be allocated until sometime in 2012. That of itself would be fundamentally unjust to the plaintiff when weighing the respective rights and entitlements of the parties as a result of delay caused by the defendant's approach to the litigation. The result would be neither just, quick or cheap : ss 56 - 58 of the CP Act 2005. 66Further, it is foreseeably possible that in the coming months, without a visitor's visa, the plaintiff may not be permitted to remain in the country. This was a matter raised in argument with the parties. The defendant's legal representatives were not in a position to undertake that they would either pay the costs of the plaintiff to return to Australia to conclude her case, assuming she was granted entry for that purpose, or to undertake to pay the costs associated with the conduct of part of the plaintiff's case overseas, either by means of videolink, which has many unsatisfactory features in any event, or by paying for the cost of taking evidence from the plaintiff in China. 67In my view, individually and in combination, these factors demonstrate significant potential prejudice arises for the plaintiff if the hearing dates were to be vacated. This requires that the application by the defendant be dismissed, with costs.

Orders 68I make the following orders: (a) The application by the defendant for the vacation of the hearing date is dismissed; (b) The applicant defendant is to pay the costs of the respondent plaintiff on the ordinary basis unless an entitlement to some other order can be shown; (c) Exhibit "A" and MFI "1" may be returned.

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: 15 March 2011