Rodger v De Gelder

Judgment 1THE COURT: On 23 May 2012 at the conclusion of oral argument, the Court made the following orders: (1)Leave to appeal is refused; (2)The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal; (3)Dismiss the notice of motion filed 23 May 2012; (4)The applicant on the notice of motion is to pay the respondent's costs of the notice of motion and Triple M Mechanical Services' costs of the notice of motion. The Court indicated that its reasons for making those orders would be provided in due course. Those reasons now follow. 2The applicant, Mr Rodger, is the defendant in District Court proceedings brought by the respondent, Mr De Gelder, for damages for economic loss due to injuries he sustained in a motor vehicle accident. The insurer in Mr Rodger's interest is NRMA. In issue in the proceeding is whether crush fractures in Mr De Gelder's thoracic spine at T5 and T6 were sustained in that motor vehicle accident. A possible explanation for the crush fractures is that they were sustained in a work-related incident three months after the motor vehicle accident. Mr De Gelder denies that there was a work incident that caused or could have caused the thoracic fractures. The earliest radiological evidence of the thoracic spine was taken on 25 June 2006, which post-dated both the motor vehicle accident and the work incident. 3Mr De Gelder's claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (the Act). Pursuant to the Act, a person is not entitled to commence court proceedings in respect of such a claim unless it has been exempted from the claims assessment procedures in Pt 4.4 of the Act, or an assessor has issued a certificate under s 94, following an assessment of liability and damages. In this case, a Claims Assessor assessed the claim and issued a certificate pursuant to s 94. 4A brief recounting of the assessor's reasons is necessary. 5Mr De Gelder had been referred for a further medical assessment under the medical assessment provisions contained in Pt 3.4 of the Act. On 30 January 2009 a medical assessor, Dr Best, issued a further certificate as to the degree of permanent impairment under Pt 3.4 in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which, in total, IS NOT GREATER THAN 10%: ... °Thoracic spine - Soft tissue injury" (original emphasis) 6Section 61(2) provides that any such certificate "is conclusive evidence as to the matters certified ... in any assessment by a claims assessor". 7The effect of this certificate was that Dr Best did not certify that the crush fractures to Mr De Gelder's thoracic spine were caused by the motor vehicle accident. 8The Claims Assessor considered he was bound to accept Dr Best's assessment as conclusive evidence not only as to Mr De Gelder's entitlement to non-economic loss, but also as to his entitlement to economic loss. He stated (at par 21 of his reasons): "The combined effect of ss 61(2) and 58(1)(d) therefore compel me to accept that the Further Certificate is conclusive evidence that [the respondent] suffered soft tissue injuries to his cervical and thoracic spine, right shoulder, right wrist and right elbow in the motor vehicle accident." 9Both parties accept that this conclusion was erroneous in law insofar as it suggested that the Claims Assessor's certificate was conclusive evidence as to the applicant's injuries for all purposes including damages for economic loss: see Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424. 10The Claims Assessor next considered and rejected Mr De Gelder's application for referral for a further medical assessment pursuant to s 62(1)(b). In refusing the application, he noted that whilst on most of the medical evidence there was a connection between the motor vehicle accident and Mr De Gelder's thoracic fractures, only Dr Best and Dr Maxwell, who found there was no connection, had been provided with all of the medical records and reports relating to the matter. He considered, therefore, that the submission made on behalf of Mr De Gelder that the medical evidence was overwhelming in his favour on this issue was negated, as that evidence was not based on all of the records and reports. 11For the purposes of the District Court proceedings, the doctors who had provided medico-legal reports to Mr De Gelder were each provided with all of the medical and radiological reports, including medico-legal reports provided to Mr Rodger, and were asked to advise if that material altered the opinion that the doctor had expressed as to whether Mr De Gelder had probably suffered fractures to his thoracic spine as a consequence of the motor vehicle accident. The doctors were not asked to re-examine Mr De Gelder for the purposes of preparing the further reports. Each of the medico-legal experts who had provided reports to Mr De Gelder confirmed their opinions that the fractures were probably a consequence of the motor vehicle accident. 12The hearing of the proceedings commenced before Levy DCJ on Monday, 21 May 2012. Shortly prior to the commencement of proceedings, Mr De Gelder served the medical reports referred to in the preceding paragraph upon Mr Rodger in apparent contravention of an order made by the District Court List Judge, Truss DCJ, that no further medical reports were to be served without the leave of the court. 13The trial judge, over objection, admitted the further medical reports into evidence, notwithstanding Mr De Gelder's omission to obtain the prior leave of the court. This led to an application by Mr Rodger that the proceedings be adjourned and the matter referred back to the Claims Assessor in accordance with the provisions of the Act, s 111. 14Section 111 provides: "111Matter to be remitted for further claims assessment where significant new evidence produced in court proceedings (1)This section applies to court proceedings in respect of a claim for which a claims assessor has issued a certificate under section 94. (2)If significant evidence is adduced in the court proceedings that was not made available to the claims assessor, the court is required to adjourn the proceedings until: (a)the party who has adduced the evidence has referred the matter for further assessment under Part 4.4, and (b)a claims assessor has issued a further certificate under section 94 in respect of the claim. (3)For the purposes of this section, significant evidence is evidence that the court considers may have materially affected the assessment made by the claims assessor if it had been made available to the claims assessor when the initial claims assessment was made (whether or not it was available at that time)." 15Levy DCJ refused that application and stated, at pages 2-3 of his reasons: "In my view, the formulation of the test requires that the material be significant so that it may have materially affected the assessment in a way that new material may have mediated a different result in the assessment process. Here, in effect, as I have already observed in an earlier interlocutory procedural decision in this matter, the so-called new material is, in effect, essentially a restatement of earlier opinions, and in no sense of the word should be regarded as new material for the purpose of s 111(3). Given that conclusion, it seems to me that any such material would have been unlikely to have influenced, or materially affected, the decision of the claims assessor, given the terms in which he outlined his view in para 21 of his reasons for decision and, accordingly, I reject the application." 16By notice of motion filed 23 May 2012, Mr Rodger sought a stay of the District Court proceedings, as well as an order for a stay of related proceedings 2010/229350, pending further order of the Court. The related proceedings were "recovery proceedings" brought by Mr De Gelder's workers compensation insurer against Mr Rodger pursuant to the Workers Compensation Act 1987, s 151Z. 17Mr Rodger also filed a summons seeking leave to appeal from Levy DCJ's decision refusing the adjournment application made for the purposes of s 111. The summons seeking leave to appeal was heard instanter. 18In his draft notice of grounds of appeal, Mr Rodger advanced three proposed grounds of appeal: "1.Judge Levy erred in finding that [the respondent] had not adduced significant evidence that was not available to the Claims Assessor 2.Judge Levy erred in finding that the further medical reports served by [the respondent] between 3 May and 17 May 2012, do not constitute significant evidence that may have materially affected the assessment made by the Claims Assessor. 3.Judge Levy erred in not adjourning the court proceedings until [the respondent] has referred the matter back to the Claims Assessment and Resolution Service for further assessment as required by s 111(2)(a) of the Motor Accidents Compensation Act 1999." 19Mr Rodger submitted that the further medical reports constituted significant evidence that may have materially affected the assessment made by the Claims Assessor. He pointed out that once s 111 was engaged, the court was required to adjourn the matter in accordance with s 111(2). In other words, there was no discretion in the trial judge to refuse the adjournment. 20It was the Court's opinion that Mr Rodger's proposed grounds of appeal had no reasonable prospect of success. Our reasons for this view are twofold. 21First, Mr Rodger did not demonstrate that his Honour's evaluation of the further medical evidence as not being of such a nature that it "may have materially affected the assessment ... if it had been made available to the claims assessor when the initial claims assessment was made", was wrong. Secondly, he did not demonstrate that s 111 was engaged in any event. 22As to the first matter, Mr Rodger submitted, by reference to the further reports of Dr Maniam, Dr Bowers and Dr Harvey-Sutton, that it was apparent the opinions expressed in the further reports may have materially affected the assessment made by the Claims Assessor if they had been available to him when the initial claims assessment was made. It is sufficient to refer briefly to the further medical reports of these doctors for the purposes of this judgment, which are short reasons only as to why leave was refused. 23All doctors had access in their earlier reports to the radiological evidence. Mr Rodger relied upon a comment in Dr Maniam's further report that there were "several red and yellow flags". This included that there was pre-existing osteoporosis. However, that was revealed in the x-ray of 25 September 2006, to which Dr Maniam referred in his original report. It appears that Dr Maniam did not have a history of the work incident in his first report. However, as I have indicated, what occurred in the work incident is in issue in the District Court proceedings and it was a matter that was before the assessor in any event, in the reports of Dr Best and Dr Maxwell. 24Dr Bowers recorded a history of osteoporosis in his first report as well as a history of a work incident. There was nothing remarkable in his comments on the other medical reports, other than his noting matters that were essentially the same as he had considered in his first report and observing that Dr Best and Dr Maxwell were of a different opinion. 25Dr Harvey-Sutton had a history of the work incident for the purposes of her first report. She referred to various statements made in the medical reports of the other experts, including Dr Best and Dr Maxwell. She confirmed her opinion that the fractures were causally related to the motor vehicle accident. That opinion was simply different to those of Drs Best and Maxwell, albeit based on the same information. 26Section 111(3) involves an evaluation by the court as to whether evidence "may have materially affected the assessment made by the claims assessor". Minds might differ in determining whether that is so. On this Court's consideration of the further medical evidence relied upon on the leave application to demonstrate that the matter fell within s 111(3), we were not satisfied that that evidence may have materially affected the assessment and we saw no error in the trial judge's assessment of that question. 27As to the second matter, the Court is further of the opinion that s 111 did not apply in this case. The Claims Assessor's determination of the damages to which Mr De Gelder was entitled was based upon his understanding that he was bound by Dr Best's further certificate as to the injuries sustained in the accident. That certificate did not include the fractured thoracic vertebrae. Accordingly, even if the assessor had the further medical evidence at the time of his assessment, it would not have materially affected the assessment, as he considered he was bound by Dr Best's certificate. 28Furthermore, the Claims Assessor's reasons for his proposed certificate of assessment concluded at par 21 of his reasons for decision. At [22] to [37], under the heading "Referral for further assessment - s.62(1)(b)", he considered whether he would exercise his discretion to refer the matter for further medical assessment pursuant to s 62(1)(b) of the Act. He determined at par 37 that he would not. 29Mr Rodger's submission that the new medico-legal reports contained material which, had they been presented to the Claims Assessor, may have materially affected his assessment, was directed to that part of the determination the Claims Assessor was undertaking for the purpose of s 62. That is not the assessment to which s 111(3) refers. Section 111(3) is concerned with the assessment under s 94(1) for the purpose of issuing a certificate under s 94(4). 30As leave to appeal was refused, the notice of motion for a stay is thereby redundant.