Solicitors:
Grant Gayler, Farrell Lusher (plaintiff)
Jeff Kelly, Moray & Agnew (1st defendant)
Richard Kelly, Acting Crown Solicitor for NSW, Crown Solicitor's Office (2nd defendant, 3rd defendant, 4th defendant, 5th defendant & 6th defendant)
File Number(s): 2013/323138
[2]
Judgment
The plaintiff, Melissa Peet, claims damages under the Motor Accidents Compensation Act 1999 ("MAC Act") for psychological injury said to have been suffered in a car accident near Deniliquin in the evening of 4 December 2007. It is her case that she veered off the road to avoid a collision with an oncoming truck, which was occupying most of the roadway. As a result, her car struck a number of guide posts, narrowly missing a tree. She was driving home from work at the time. The truck has not been identified and her claim is brought against the Nominal Defendant. Liability is disputed.`
These are proceedings for judicial review following her assessment by the Medical Assessment Service ("MAS"), pursuant to Pt 3.4 of the MAC Act. Importantly, that assessment was required to determine whether the plaintiff suffered a whole person impairment ("WPI") as a result of a psychological injury caused by the accident greater than 10%: s 58(1)(d) of the MAC Act, the threshold which must be crossed for her to recover damages for economic loss: s 131. This was a long process, which need not be recounted in detail. It is sufficient to say that in April 2012, Assessor Moore certified that the plaintiff suffered from a chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident, giving rise to a whole person impairment ("WPI") not greater than 10%.
Pursuant to s 63 of the MAC Act, a proper officer of the Motor Accidents Authority of New South Wales ("MAA") referred the assessment to a Medical Review Panel. By s 63(3A), the Panel's task was not limited to reviewing the aspect of the assessment by Assessor Moore alleged to be incorrect, but was to undertake "a new assessment of all the matters with which the medical assessment is concerned." Having done so, the Panel also certified that the plaintiff's WPI was not greater than 10%. It is this decision which is the subject of these proceedings.
The plaintiff claims a declaration that the Review Panel's certificate and statement of reasons are void and of no effect, together with such other order as the court may see necessary to give effect to her claim. The first defendant, Insurance Australia Ltd t/as NRMA Insurance, is the insurer appointed by the MAA as agent for the Nominal Defendant. The second, third and fourth defendants are the medical practitioners who constituted the Review Panel. The fifth defendant is the MAA, as the body which referred the assessment for review. The sixth defendant is the Review Panel. The active parties in the proceedings have been the plaintiff and the first defendant, NRMA Insurance.
The Review Panel found that the plaintiff suffered a Specific Driving Phobia as a result of the accident, leading to a WPI of 1%. The Panel also diagnosed a recurrence of a pre-existing Anxiety Disorder with Mixed Anxiety and Depressed Mood, but found that it was not caused by the accident. Rather, it was attributable to her treatment at her workplace after the accident.
The Review Panel considered a large volume of documentation, including the material provided to Assessor Moore, and two members of the Panel examined the plaintiff. From this material it appears that the plaintiff had had a number of difficulties in her life over the years, including an assault some years prior to the accident, a past abusive relationship, and previous workplace problems. In 2004 she was diagnosed with Adjustment Disorder with Anxious and Depressed Mood. At the time of the accident she was employed by the Department of Community Services, working for a disability service in Deniliquin.
In its reasons the Review Panel recorded her history of the accident and its aftermath. After setting out briefly her account of the accident, which left her "shaking and crying", the summary of this material continued:
"She was able to go into work the next day but had to be driven by her husband because she felt very shaken up. She started filling in a report and she said her employers got angry with her because she had not taken a work car and they blamed her for the accident. She said she then collapsed in the foyer and Greg had to pick her up and drive her home.
She said she went to see her general practitioner, Dr Baguley, who gave her medication to calm her down. She said she couldn't work. She said she was then off work for a couple of weeks and tried to go back to work but said she was "drilled and blamed" about the accident. She said that she then saw various counsellors; … , and a Return to Work Plan was put in place. She slowly increased her hours and was doing office duties but, at the end of six weeks, she said she was told by her bosses that she was going to be medically retired."
There was then reference to her admission to St John of God Hospital, which need not be recounted. The summary went on:
"The history then got quite confusing. She said she was doing office work, filing books and helping move office, but then she said that she had been working in the group homes. She said they were making her do harder work than normal. She felt she was being discriminated against because of the fact she was on Workcover. She said that she'd been locked in a room by colleagues and they had threatened to punch her … .
She said she was devastated about being medically retired and that she had worked so hard to get this role. She said she went to various rehabilitation providers after that; they didn't even help her with her résumé and she got no interviews.
She told us that if she'd been treated better by her employer she thinks things would have gone better for her."
The plaintiff told the Panel doctors examining her that immediately after the accident she was not driving, but at the time of the examination she was driving locally but tended to have her husband with her. Her history provided further details about her treatment at work after the accident, as follows:
"She was very nervous in front of her employers. She said she was treated very badly in the group home and discriminated against. They had gone through her files, she was threatened, assaulted and locked in rooms. She said she would come home at the end of the day and 'fall in a heap'.
[She] talked about how she'd been abused for taking her car; plus it happened in front of staff. She had tried to do the proper thing by filling in forms. She said that, after the way they treated her, she panicked and was hysterical and had to ring Greg. She talked about how she had been abused at work after coming back to work, of having been locked in a room and being threatened with assault and it all happened 'over fruit loops'. She said when she did come back to work she tried to assert her opinion in regard to management of particular clients and nobody would listen to her or take her seriously. She said that after she came to see her employers after her six week trial she thought they were going to commend her for the effort she'd made but, instead, they told her she was going to be medically retired. She said she was shocked and she does believe that if she'd been treated better things would have gone better. She said: 'Yes, I hoped that would be the case. I thought the Government would be helpful'. She told us that seven staff had been sacked from the department and the department had 'given them a hell of a time'. She said after the accident she was questioned all the time and blamed for the accident. She told us about her current financial difficulties, saying that after the accident she was cut back to eighty percent, Greg is not getting any income and she described the difficulties of living on $1,200 per fortnight. She feels very cheated by what has happened and she said that she was very good at her job and she said: 'I actually did care'."
The Review Panel expressed its reasons for its conclusion as follows:
"The Panel noted a long history of Adjustment Disorder with recurrent periods of depression and anxiety which had previously occurred in the context of interpersonal difficulties in an occupational setting. The Panel also noted the history of a prior assault some fifteen years ago that she was not willing to talk about.
The Panel noted that there was evidence of psychiatric and psychological treatment right up until the end of 2006. The claimant states that she was not receiving any psychiatric or psychological treatment in 2007 and there are no records to indicate she was.
The Panel was of the view that she certainly had a propensity to recurrent mood problems and had had personality vulnerability.
The Panel was of the view that the accident of 4 December 2007 led to an acute stress reaction and, ultimately, culminated in a Specific Driving Phobia.
The Panel, however, were of the view that she also developed a recurrence of her Adjustment Disorder with Mixed Anxiety and Depressed Mood. This was considered not to be related to the motor accident, but due to workplace issues such that she felt blamed, demeaned and humiliated regarding her use of her own car, as well as the way in which she was treated by colleagues and superiors when she was on a Return to Work Plan under Workcover. This is not considered a 'but for' situation, as, given her prior work-place difficulties (very similar to those occurring after the accident) and obvious personality vulnerabilities, issues in the workplace would have likely eventuated.
The Panel also felt that she had developed a problem with benzodiazepine dependence in the context of her Adjustment Disorder. It was unlikely to be related to her Specific Phobia.
The Panel therefore concluded that, as a consequence of the accident of 4 December 2007, she has developed a permanent psychiatric or psychological injury in the form of a Specific Driving Phobia but that her Adjustment Disorder with Mixed Anxiety and Depressed Mood is attributable to issues in the work place."
The plaintiff's complaint in these proceedings is that, in finding that her Adjustment Disorder with Mixed Anxiety and Depressed Mood was not attributable to the accident, the Panel had fallen into error in its approach to the issue of causation. Accordingly, she claims relief in this court on the basis that the Panel's reasons demonstrate jurisdictional error and/or error on the face of the record.
The Panel had regard to the Permanent Impairment Guidelines issued, pursuant to s 44(1)(c) of the MAC Act, on 1 October 2007. The issue of causation is addressed in those Guidelines at cll 1.7 - 1.9, as follows:
"Causation of injury
1.7 An assessment of permanent impairment is as prescribed under section 58 (1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: 'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This therefore involves a medical decision and a non-medical informed judgement.'
1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes'."
In Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881, 75 NSWLR 482, Johnson J noted at [83] that the Guidelines "may be characterised as delegated legislation under s 44(1)(c)." At [86], his Honour described the task for medical practitioners undertaking medical assessment functions as "a practical one", noting that it was "important that the process is not rendered unduly complex by legal terminology." His Honour observed that the Permanent Impairment Guidelines dealing with causation "provide practical assistance in this area." In Owen v Motor Accidents Authority of NSW [2012] NSWSC 560, Campbell J referred at [27] to that observation of Johnson J, but added that it is "well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act 2002, s 5D."
Section 5D of the Civil Liability Act ("CLA") provides:
"5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
Put shortly, the plaintiff contends that, in finding that her Adjustment Disorder was not attributable to the accident, the Review Panel failed to consider whether the accident had "materially contributed" to that condition: cl 1.9 of the Guidelines. In so doing, the Panel had failed to determine causation in accordance with CLA s 5D(1). As Harrison J observed in Nelkovska v Motor Accidents Authority of New South Wales [2012] NSWSC 819, also a case involving judicial review of a medical assessment, the test of causation "found in the general law, the guidelines and the Civil Liability Act, is whether the injury was caused or materially contributed to by the motor accident": [47].
In this court the plaintiff was represented by Mr Romaniuk SC with Ms Grotte, and NRMA Insurance by Mr Rewell SC. Between them, counsel supplied me with a large volume of authority, including part of the Ipp Report ("Review of the Law of Negligence - Final Report") and academic writings. I am grateful for their assistance but, given the focus of the written submissions and their refinement in oral argument, much of this material need not be referred to.
Section 5D was examined by the High Court in Strong v Woolworths Ltd [2012] HCA 5, 246 CLR 182, in the plurality judgment at [17] (190) ff. However, for present purposes, it is sufficient to refer to passages in the judgment of the court when it revisited the issue in Wallace v Kam [2013] HCA 19, 250 CLR 375. In a joint judgment the court said at [11]-[16] (381-3) and [22]-[24] (385):
"11. The common law of negligence requires determination of causation for the purpose of attributing legal responsibility. Such a determination inevitably involves two questions: a question of historical fact as to how particular harm occurred; and a normative question as to whether legal responsibility for that particular harm occurring in that way should be attributed to a particular person. The distinct nature of those two questions has tended, by and large, to be overlooked in the articulation of the common law. In particular, the application of the first question, and the existence of the second, have been obscured by traditional expressions of causation for the purposes of the common law of negligence in the conclusory language of 'directness', 'reality', 'effectiveness' and 'proximity'.
12. Statute now requires that the two questions be kept distinct.
[Their Honours set out s 5D and referred to s 5E, relating to the onus of proof borne by a plaintiff, and continued:]
14. The distinction now drawn by s 5D(1) between factual causation and scope of liability should not be obscured by judicial glosses. A determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities in accordance with s 5E. A determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.
15. Thus, as Allsop P explained in the present case:
'[T]he task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as 'proximate cause' or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not.'
16. The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a 'but for' test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.
…
22. In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology. The common law method is that a policy choice once made is maintained unless confronted and overruled.
23. In a novel case, however, s 5D(4) makes it incumbent on a court answering the normative question posed by s 5D(1)(b) explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to 'the purposes and policy of the relevant part of the law'. Language of 'directness', 'reality', 'effectiveness' or 'proximity' will rarely be adequate to that task. Resort to 'common sense' will ordinarily be of limited utility unless the perceptions or experience informing the sense that is common can be unpacked and explained.
24. A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid. Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach." (References to authority omitted.)
Mr Romaniuk's submissions were derived particularly from the following passage (quoted above) in the Review Panel's reasons for deciding that the plaintiff's Adjustment Disorder was not attributable to the accident:
"This is not considered a 'but for' situation, as, given her prior work-place difficulties (very similar to those occurring after the accident) and obvious personality vulnerabilities, issues in the workplace would have likely eventuated."
In written submissions Mr Romaniuk argued that the Panel's reasons demonstrate three, closely related, errors. Firstly, the Panel failed to consider any causal link between the accident, the consequent workplace issues, and the recurrence of the Adjustment Disorder. In failing to do so, it applied too narrow a test of causation. Secondly, the Panel failed to consider whether the Adjustment Disorder was caused or "materially contributed to" by the accident, as required by the Guidelines and CLA s 5D. The Panel failed to determine whether the accident was a "necessary condition" for the occurrence of the disorder. Thirdly, the Panel failed to have regard to the stipulation in cl 1.9 of the Guidelines that the accident need not be the sole cause of the condition, provided that it was a "contributing cause" which was "more than negligible."
Mr Romaniuk argued that, plainly, the plaintiff's alleged treatment at her workplace, accepted by the Panel to be the source of the recurrence of her Adjustment Disorder, would not have occurred "but for" the accident. In the circumstances, he submitted, the Panel had fallen into error in considering the issue of factual causation, for the purpose of CLA s 5D(1)(a) and the Guidelines. Accordingly, there was an error of law amounting to jurisdictional error and warranting relief in this court.
In response, Mr Rewell acknowledged that the Panel's reference to the "but for" test, in this context, was "poorly expressed". He accepted that the "but for" test might be made out in the present case, but argued that that did not conclude the question of causation. There remained the question of the scope of liability: s 5D(1)(b). That question involves a normative judgment which, Mr Rewell argued, is effectively what the Panel undertook.
He argued that even if the test of factual causation had been satisfied, causation would be excluded under s 5D(1)(b) because the conduct of the plaintiff's employer and others in her workplace would amount to a novus actus interveniens, or because her psychiatric condition resulting from that conduct was not foreseeable or was too remote from the perspective of the tortfeasor in the accident.
He noted that in Zanner v Zanner [2010] NSWCA 343, 79 NSWLR 702, Allsop P (as he then was) observed at [5] (704) that "though s 5D is entitled causation, it appears to encompass all limits on scope of liability, including remoteness … ." Similarly, in the passage from Wallace v Kam quoted above, the court said at [22] that "the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent," and that s 5D "guides but does not displace common law methodology."
Mr Rewell referred to a passage in Fleming's The Law of Torts, 10th Edition, at [9.220] dealing an intervening cause by way of deliberate harm by third parties. The effect of what the learned author wrote is sufficiently expressed by the following passages:
"A person is usually not liable for the intentional or criminal acts of third parties. However, if the harm suffered was the result of a foreseeable risk created by the defendant's negligence or the defendant had a duty to guard against intentional or criminal acts of third parties, the defendant may be liable. …
However, unless a duty to guard against intentional or criminal acts of a third party is established, a defendant will not be liable for harm caused by such acts, even where the defendant's act facilitated the wrong doing." (References to authority omitted.)
Mr Rewell summarised his position in oral argument as follows:
"We say this is a very clear case where, while the 'but for' test may be satisfied because the motor accident was one of a number of factors leading to the situation that occurred, because of questions of intervening acts and remoteness of damage this is certainly not a case where liability should extend to the first defendant in its capacity as the insurer of the driver alleged to be at fault. To the contrary, the Panel appears to have clearly decided that the motor accident had nothing at all to do with the development of the Adjustment Disorder in the presence of a very clear and powerful history as to what did cause that disorder."
He argued that it could not be expected, and would not be necessary, that the Panel express its reasons in the legal terminology engendered by this area of the law. He noted the observation of Johnson J in Ackling v QBE Insurance at [86], quoted above, that the task of medical practitioners conducting medical assessments is "a practical one", and that it is "important that the process is not rendered unduly complex by legal terminology."
In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 88 ALJR 52, the High Court was considering the process of medical assessment by a Medical Panel under Victorian legislation (Accident Compensation Act 1985). It is unnecessary to recite the facts of the case. What is of assistance here is what the court had to say about the functions of the Panel and, in particular, its responsibility in giving reasons for its opinion.
The court observed at [47] (61) that the function of a Medical Panel was "to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." Dealing with the obligation to give reasons, the court said at [48], [54]-[55] (62-3):
48. The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.
…
54. The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.
55. The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
Mr Rewell submitted that the reasons of the Review Panel in the present case meet the standard enunciated by the High Court. While the Panel did not refer in terms to the Guidelines, he said, the members of the Panel should be taken to have been aware of them and to have applied them. He argued that this was not a case, like Owen or Nelkovska, where the reasons of the Assessor or the Review Panel disclosed explicit error. He contended that the reasons of the Panel, viewed in the way in which he sought to explain them, demonstrated no error.
The analysis of the issue of causation which Mr Rewell attributed to the Review Panel may well be available, but I do not accept that it is how the Panel approached the matter. Indeed, one might question whether it would ever be appropriate for the normative judgment required by CLA s 5 D(1)(b) to be made in the medical assessment process. I am satisfied that in the present case the Panel was addressing the issue of factual causation when it found that the plaintiff's Adjustment Disorder was not attributable to the accident. That being so, I am persuaded by the submissions of Mr Romaniuk that its assertion that this was not a "but for" situation discloses explicit error in its reasons. The plaintiff is entitled to the relief she seeks.
I would make the declaration sought in par 1 of the amended summons to the effect that the Review Panel's certificate and statement of reasons are void and of no effect. I shall consult the parties about any consequential order which should be made and, if necessary, hear argument on costs.
[3]
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Decision last updated: 15 May 2015