Sanhueza v AAMI Limited

[2010] NSWSC 774

Supreme Court of NSW|2010-05-14|Before: Smart AJ

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Source facts

Court

Supreme Court of NSW

Decision date

2010-05-14

Before

Smart AJ

Source

Original judgment source is linked above.

Judgment (61 paragraphs)

[1]

Introduction 1 On 3 December 2006 about 1.05 pm the plaintiff (also referred to as the claimant), Mr Jorge Sanhueza, was driving a bus to Green Valley from Liverpool. He negotiated a roundabout at the corner of South Liverpool Road and Heckenberg Avenue and entered South Liverpool Road. A car travelling in the opposite direction at speed crossed onto the wrong side of the road and collided with the bus directly in front of the driver's cabin. The plaintiff was very distressed to find that the male driver of the car was dead. A female passenger in the car was screaming and was taken away by ambulance. Mr Sanhueza remained for four to five hours at the scene. He went home and after a period experienced severe pain in his neck and lower back. He was taken to Liverpool Hospital where he was examined, x-rayed and released about four to five hours later. 2 On 30 July 2008 the plaintiff filed a MAS Form 2A for Determination of Permanent Impairment. Included with that application were two reports of Dr Apler, a forensic psychiatrist, bearing date 5 August 2007. The first reported on Dr Apler's interview with Mr Sanhueza, allegedly on 17 August 2007. (One of the dates is incorrect.) This report set out the plaintiff's psychiatric symptoms and dealt at length with his various difficulties. Dr Apler's second report made Class 3 findings in the same four Areas of Function as the single assessor subsequently made and made Class 2 finding in the remaining two Areas of Function. Dr Apler assessed the degree of whole person impairment ("WPI") at 17%. 3 On 19 August 2008 the insurer lodged its reply (MAS Form 2R). With its reply the insurer lodged the report of 11 July 2007 of Dr Doron Samuell, psychiatrist. That report stated that Mr Sanhueza presented as a genuine complainant. Dr Samuell found that Mr Sanhueza had developed a post traumatic disorder as a result of the workplace event. While Dr Samuell thought it was possible that Mr Sanhueza would make a full recovery, he noted that Mr Sanhueza still had a number of psychological symptoms that had not yet responded to treatment. Dr Samuell wrote that Mr Sanhueza was still substantially unwell. Dr Samuell continued: "He appears to me to be a very motivated individual, and has already overcome significant traumatic events. I expect him to overcome this event as well with the passage of time."

[2]

Dr Samuell did not place Mr Sanhueza in a class in any Area of Function. He may not have been asked to do so or to deal with the issue of WPI. Dr Samuell saw Mr Sanhueza on 25 June 2007, whereas the single Medical Assessor saw Mr Sanhueza about 16 months later and over 22 months after the accident. 4 The Motor Accidents Assessment Service of the Motor Accidents Authority (MAA) referred the dispute that had arisen as to the severity of the plaintiff's psychiatric condition to a Medical Assessor who was a psychiatrist. About 30 October 2008 he forwarded a detailed statement of reasons to the Medical Assessment service (MAS) of the MAA. The insurer, the first defendant, sought a review of the certificate of the Medical Assessor by a Review Panel of three Medical Assessors. By his reply the plaintiff opposed such a review. The second defendant, the Proper Officer of the MAA, determined that there should be a review. The three-member Review Panel constituted the third defendants. They disagreed with a significant part of the assessment of the single Medical Assessor. The core of the medical dispute was whether the plaintiff's Chronic Post Traumatic Stress Disorder with co-morbid depression gave rise to a WPI greater than 10%. The diagnosis was undisputed, but there was a dispute as to the severity of the condition of the plaintiff. The MAA is the fourth defendant. 5 In his Amended Summons the plaintiff sought the review of: a) the decision of the Proper Officer of the MAA, made 5 February 2009 (and communicated about 10 or 11 February 2009), that there was reasonable cause to suspect that the assessment of 30 October 2008 of the Medical Assessor was incorrect in a material respect, having regard to the particulars set out in the review application of AAMI Limited; and b) the decision of the Review Panel made 8 March 2009 determining that the degree of WPI was 6% and revoking the Certificate as to permanent impairment issued on 30 October 2008 by the Medical Assessor for jurisdictional error and/ or error of law on the face of the record. 6 The review of the Proper Officer's decision was sought, in the outline of the plaintiff's written submissions, on the grounds that: a) the Proper Officer did not give any, or any adequate, reasons; b) the Proper Officer did not give any, or any adequate, consideration to the plaintiff's reply; c) The Proper Officer erred in - i. failing to determine the matter by asking whether there was material before the Medical Assessor that was reasonably capable of supporting the conclusions reached ii. limiting himself to a decision only as to whether there was material before the Medical Assessor that could be relied upon to support a materially different assessment iii. failing to ask himself whether he reasonably suspected that the medical assessment was wrong iv. asking himself whether he reasonably suspected that the medical assessment could be wrong; and d) the material before the Proper Officer was not reasonably capable of supporting a conclusion that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. 7 The review of the decision of the Review Panel was sought in the plaintiff's written submissions on the grounds that: a) the Review Panel did not give any, or any adequate, reasons for its departure from the findings of Dr Apler and the Medical Assessor; b) the Review Panel failed to have regard to the assessments of Dr Apler and the Medical Assessor of the appropriate classes for psychiatric impairment; c) the decision of the Review Panel not to examine Mr Sanhueza was a decision no reasonable review panel could come to; and d) no reasonable review panel could come to the decision it did without an examination of the plaintiff. 8 Senior Counsel for the plaintiff made extensive oral submissions.

[6]

Background 14 Dr A Apler was consulted on behalf of Mr Sanhueza and Dr D Samuell on behalf of the insurer. The Medical Assessor obtained a history through an interpreter. He then assessed each of the six Areas of Function. The assessment including obtaining the history took one hour and forty minutes. In respect of each Area of Function that had to be, and was, assessed, the single Medical Assessor formed the judgment that in four of them the rating should be Class 3 and in two of them the rating should be Class 2. This led the Medical Assessor to hold that the degree of WPI was 17%. 15 The insurer, AAMI Ltd, sought a review of the medical assessment in relation to two of the Areas of Function, first, social functioning and secondly, concentration, persistence and pace, contending that Class 2 - mild severity, rather than Class 3 - moderate severity, should be applied. If both challenges succeeded, the degree of WPI would be less than 10%. The review was opposed. The Proper Officer of the MAA granted the application for review on the basis that there was reasonable cause to suspect that the assessment of the Medical Assessor was incorrect in a material respect. As part of this test s 63(3) adds "having regard to the particulars set out in the [review] application". 16 A Review Panel comprising three psychiatrists was appointed. The Panel confirmed the Certificate of the Medical Assessor that the Chronic Post-Traumatic Stress Disorder with co-morbid depression had stabilised, but revoked his Certificate as to the degree of permanent impairment. The Review Panel thought that the degree of WPI was 6%. 17 In so doing, the Review Panel made, as provided by s 63(3A) of the Act, a new assessment of all the matters with which the medical assessment was concerned. They reviewed the six Areas of Function. As to the four areas of function to which the Medical Assessor had given a Class 3 rating, the Panel downgraded these to a Class 2 rating. While the Medical Assessor thought that a moderate level of impairment existed in the Areas of Function of, first, self-care and personal hygiene, secondly, social and recreational activities, thirdly, social functioning and fourthly, concentration, persistence and pace, the Review Panel thought that there was only a mild level of impairment in these Areas of Function. 18 Medical assessment guidelines were issued under s 44(1) of the MAC Act. Both s 63 of the MAC Act and Chapter 16 of the Medical Assessment Guidelines issued under s 44(1)(d) of the MAC Act deal with reviews of medical assessments by a single Medical Assessor. Under clause 16.6.1 both the application for review under s 63 and the reply to an application for review must be in the form approved by the Authority and set out or be accompanied by the particulars and information required.

[16]

The Proper Officer appears to be referring to material taken from the insurer's application for review and the Assessor's report capable of supporting the view that the impairment of social functioning was mild rather than moderate. That appears to have been part of the Proper Officer's reasoning process and his ultimate acceptance of the application for review. 30 The Proper Officer quotes portion of cl 7.20 of the MAA Permanent Impairment Guidelines and continues: "The examples given in each of the 'Classes of Impairment' in the MAA guidelines are not to be regarded as exhaustive or exclusive to each class. Rather, they are to be descriptive of the class but not determinants of the class. On the other hand, the history must be capable of demonstrating adequately the extent of the psychiatric injury and providing a description and examples comparable to those in the MAA Guidelines. Accordingly I am persuaded by the applicant's submission as to this ground of review." 31 I do not agree that the history must be capable of providing a description and examples comparable to those in the MAA Guidelines. However, this point was not argued. The rating scale for Class 3 in Table 7.4 "Social Functioning" reads: "Moderate impairment. Previously established relationships severely strained, evidenced for example by periods of separation or domestic violence. Partner, relatives or community services looking after children." 32 There are non-comparable examples of previously established relationships being severely strained after an injury. Ultimately it is a question of moderate impairment of social functioning. I regard the words "[p]reviously established relationship severely strained" as words of general description capable of being satisfied in a variety of ways and pointing to moderate impairment of social functioning. There may be sustained verbal or cruel abuse; such abuse may be levelled not only at the spouse but also at the children. Sometimes there may be allegations of unfaithfulness. Children or grandchildren may be wary of their father or grandfather respectively for a variety of reasons other than physical assault. The father or grandfather may shout at or abuse the children or grandchildren and they may be subjected to outbursts of bad temper. Some wives may be supportive of their husbands despite many difficulties and much long suffering. This does not mean that previously established relationships have not been severely strained and that Class 3 moderate impairment does not exist. Economically, it may not be possible for the wife and children to leave, especially if there are a number of children and they have no alternative accommodation. A wife and children may be reluctant to leave, despite the suffering and the damage being done to relationships, if their spouse or parent has been seriously injured. However, as the point was not argued, it is not a matter on which I rely. 33 Mr Sanhueza submitted the words in the Proper Officer's reasons, "Accordingly, I am persuaded by the [insurer's] submission as to this ground of review" (social functioning) contained no reasoning. It was a conclusion. However, I have inferred, from the Proper Officer's acceptance of the application "for the reasons outlined below", the Proper Officer's summary of certain of the reasons advanced by the insurer and his reference to certain parts of the statement of reasons of the single Medical Assessor, that those matters constitute his reasons. There has been an unhappy choice of language.

[25]

The 5A application is the review application lodged by the insurer. It was not suggested that this material should not have been considered. However complaint was made that the words "and supporting documentation", and all the documents provided prior to the single Assessor's assessment lacked clarity and particularity and that the generality of the descriptions used made it impossible to know what documents had been considered and what weight had been give to them. This complaint was allied to the complaint that the brief statement of reasons was inadequate. 41 The report of Dr A Apler was forwarded to MAA with the initial application for assessment and Dr Samuell's report was forwarded to the MAA with the insurer's Reply. The insurer's Review Application did not refer to the reports of either Dr Apler or Dr Samuell but concentrated on the assessment of the single Assessor, what he recorded and what the insurer contends is the lack of evidence of Class 3 severity as to both areas of function. Mr Sanhueza's Reply to the Review Application of the insurer refers more fully to the history recorded by the single Assessor and sought to repel the various arguments propounded by the insurer. There is an attempt to balance the selective quotes of the insurer and an attempt to reduce the reliance that should be placed on Mr Sanhueza continuing to drive a bus. 42 Mr Sanhueza's reply refers to the AMA IV Guidelines from which the MAA Guidelines were taken and changed as required: see the Explanatory Note to the MAA Guidelines for the assessment of the degree of permanent impairment of 1 October 2007. The AMA IV Guidelines remain a useful reference point. There is no reference in Mr Sanhueza's reply to the reports of Drs Apler and Samuell. 43 It is hard to criticise the Proper Officer for not referring to those medical reports when the parties did not do so. This complaint should be rejected. 44 Mr Sanhueza complained that the Proper Officer did not refer to the substance or contents of his Reply but wrote that he had taken into account the 5A application and 5R reply forms and supporting documentation. It is not known what is meant by the "supporting documentation". On one view there was none. It was contended that what was written was no more than a passing reference of no consequence. The Proper Officer was not required to deal with each of the submissions in Mr Sanhueza's reply. The complaint was that he did not deal with any of them but made a global reference to them. It can be inferred from his brief statement of reasons that the Proper Officer did not accept the submissions made in reply. He concentrated on the history obtained by the single Medical Assessor as set out in that psychiatrist's statement of reasons. 45 Applying the comments of Beazley JA in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297, 58 NSWLR 631 at [102], the nature and extent of reasons required in a given case falls to be determined having regard to the terms of the MAC Act and the Guidelines made thereunder and the purpose underlying the requirement for giving reasons. During argument the Proper Officer was described as playing the role of gatekeeper. As Hulme J explained at [57] in Pratap, supra, the Proper Officer has a role to play as he makes his decision. He may dismiss the review application (cl 16.15 of the Medical Assessment Guidelines). If he does so, the assessment of the single Medical Assessor stands as conclusive evidence (s 61(2) of the MAC Act). If the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the review application, the matter is referred to a Review Panel which makes the substantive assessment. 46 In considering the reasons given by the Proper Officer, it must be recalled that he does not decide the degree of WPI. He has limited tasks. 47 In the present case, the brief statement of reasons given by the Proper Officer suffices having regard to the terms of the MAC Act and Guidelines made thereunder and the purpose underlying the requirement for giving reasons. 48 I turn to consider the remaining grounds advanced by Mr Sanhueza. 49 In my opinion the Proper Officer did not err in failing to ask whether there was material before the single Medical Assessor that was reasonably capable of supporting the conclusions reached by such Medical Assessor. The Proper Officer was entitled to have regard to any material in the reasons of the single Medical Assessor which gave the Proper Officer reasonable cause to suspect that the medical assessment was incorrect. The test is not whether a particular conclusion is open or available on the material, but whether the Proper Officer has reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the review application. Mr Sanhueza pointed out that the words used were "the medical assessment was incorrect" and not "might be incorrect". When regard is had to the statement of reasons provided by the single Medical Assessor there was reasonable cause to suspect that the Class 3 assessment was incorrect in respect of the area of social functioning and also that of concentration, persistence and pace, based upon the statements of the single Medical Assessor, especially having regard to what was communicated by Mr Sanhueza to the single Medical Assessor. 50 I do not agree that the Proper Officer limited himself to a decision only as to whether there was material before the Medical Assessor that could be relied upon to support a materially different assessment. The Proper Officer appears to have had regard to the reasons of the single Medical Assessor and to have asked himself and answered the statutory test in s 63(3) of the MAC Act. 51 I do not think that the Proper Officer failed to ask himself whether he reasonably suspected that the medical assessment of the single Medical Assessor was wrong. The Proper Officer used words found in s 63(3) of the MAC Act. I do not accept that the Proper Officer asked himself whether he suspected that the medical assessment could be wrong. 52 I do not agree that the material before the Proper Officer was not reasonably capable of supporting a conclusion that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. 53 In their submissions in reply counsel for Mr Sanhueza submitted that the Proper Officer's decision was unreasonable within Lord Greene's dictum in Associated Provincial Picture Houses Limited and satisfied the test in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [58] and [59] that the decision was highly irrational or illogical. The alternative test was based on observations in Re Minister for Immigration and Multi-Cultural Affairs; ex parte applicant S20/2002 [2003] HCA 30 at [34]; (2003) 198 ALR 59 that, when dealing with what is essentially a fact finding process, the process failed in the factual determinations reached because they were "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". 54 In my opinion it could not be said that the Proper Officer's decision was unreasonable or illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds. Further, there was sufficient material in the history obtained by the single Medical Assessor for the Proper Officer to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the review application. 55 As I have taken the view that the brief statement of reasons of the Proper Officer sufficed, I have not found it necessary to consider the insurer's submission that, if the Court found that the Proper officer's reasons were inadequate and that his decision to refer the dispute to as to WPI was done in breach of a condition regulating the exercise of the power under the Act and Guidelines, the decision was not necessarily invalid. See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and VAW (Kurri Kurri) Pty Ltd, supra, at [103] - [116] per Beazley JA.

[28]

b) (i) As to concentration, persistence and pace, the psychiatrists who examined Mr Sanhueza treated him as genuine and truthful. Dr Apler (p 3) and the single Assessor (p 18) refer to the reports of Mr Sanhueza of some difficulty with concentration. Dr Samuell described it as normal at interview but did not otherwise refer to it. The Panel, in writing that there was no objective evidence of impaired concentration or memory functioning, seemed to be diminishing, or perhaps disregarding entirely, any evidence of impaired concentration that was not objectively corroborated. This was erroneous. In my opinion the Assessor and the Panel on review has to assess the condition and history on the available materials. Corroboration is highly desirable. The absence of objective corroboration does not of itself warrant rejecting the condition the subject of the complaint but circumstances in the history and materials may lead to the single Assessor or Review Panel not being satisfied about the alleged condition or matter in the absence of corroboration. (ii) The Panel wrote, "Mr Sanhueza gave a history of subjective difficulties with" these functions [of concentration, persistence and pace] in regard to reading. The Panel placed particular reliance upon the moment-by-moment demands of the work of a professional [bus] driver. It was submitted that the Panel paid little or no regard to the difficulties of which Mr Sanhueza spoke and did so without any interview or examination. The Panel based itself upon what the members infer would be the position in relation to bus driving. (iii) Dr Apler and the single Assessor had made detailed reference to statements of Mr Sanhueza that he could only read for 10 to 15 minutes, that he could not watch TV for more than half an hour, and how he would blank out when driving, but none of this material was referred to by the Panel. (iv) The Review Panel had contradicted the judgments of Dr Apler and the single Assessor without any reference to any of the other important information in their reports and any proper basis for rejecting that material other than the hypothesis, unsupported by interview, that Mr Sanhueza must be "okay" and classification 2 applicable because he can drive a bus and work ordinary hours. Effectively, the Panel must have disbelieved what Mr Sanhueza told Dr Apler and the single Assessor about his concentration problems. Further, the focus was on Mr Sanhueza's ability to drive a bus in his current employment rather than his completion of tasks commonly found in work settings. 57 a) I did not agree with all the submissions of Senior Counsel, but I accepted that the Panel appeared to misapply the Guidelines by attaching too much weight to the examples given, which were illustrative, and not concentrating on moderate impairment in Table 7.4 and the following words "[p]reviously established relations severely strained". There was no objection to the Panel negating the existence of matters that fell within the general examples but the Panel was required to apply the words of Class 3, Table 7.4. b) The Panel did not sufficiently explain why they rejected the primary finding of the single Assessor as supported by Dr Apler when they conducted no examination. 58 The Panel did not necessarily disbelieve the statements made by Mr Sanhueza to the Assessor. They could have relied upon the absence of objective corroboration as to Mr Sanhueza's difficulties or the results of the mental status examination or his ability to drive a bus, or a combination of all three factors. 59 I did not regard the Panel's reliance on the plaintiff driving a bus as misplaced. It was a factor to be given weight when considering the function of concentration, persistence and pace, but it was not the sole factor. 60 I am indebted to Junior Counsel for Mr Sanhueza for preparing a Schedule setting out a helpful summary of the reports and reasons of Dr Apler, Dr Samuell, the single Assessor, the Proper Officer and the Medical Review Panel dealing with each of the four areas of function on which the Review Panel disagreed with the assessment of the single Assessor. I include a copy as the Schedule to this judgment. 61 In addition to the areas of social functioning and concentration persistence and pace, the Court was referred in the oral submissions to the areas of self-care and personal hygiene (Table 7.1) and social and recreational activities (Table 7.2). 62 As to Table 7.1, self care and personal hygiene, Class 3 reads: "Moderate impairment. Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 - 3 times per week to ensure minimum level of hygiene and nutrition."

[29]

The single Assessor records that Mr Sanhueza told him, "I don't feel like doing anything at home" and "sometimes I don't feel like washing; my wife forces me to" and "my wife controls me, she tells me when to take medication, when to change my shirts when I don't feel like doing that". Mr Sanhueza reported that his appetite has generally decreased but at other times he gets "very hungry" and eats desperately. 63 The single Assessor records that Mr Sanhueza's "grooming, hygiene levels and attire were within normal limits on mental status examination" and "[h]e reports that he regularly needs prompting and support in basic hygiene from his wife" (p 16). I would not have expected Mr Sanhueza's family to let him appear otherwise at his medical examination. 64 Dr Apler records, "lost interest in looking after himself and needed reminding to shave and change his shirts" (p 1 of second report of 5 August 2007). Dr Samuell records "Does no cooking and only a small amount of cleaning. He can attend to his own self care". 65 The Panel noted the history recorded by the single Assessor (p 10 of the Assessor's reasons, repeated on p 16). The Panel recorded Mr Sanhueza's lack of motivation, variability in eating habits and reminders from his wife to wash, to take his medication and change his clothing. The Panel wrote that Mr Sanhueza was able to make his way to work on a regular basis and considered it likely that he would meet a standard of cleanliness in the work environment. This was a common sense deduction. The Panel noted that there was evidence of a change as to self care and personal hygiene in the period since the motor vehicle accident. 66 Counsel for Mr Sanhueza reminded the Court of the terms of Table 7.1 and Class 3 in which after the words "Moderate impairment" the words "[c]annot live independently without regular support" follow. Various other illustrative factors are given. Counsel pointed out that Mr Sanhueza did no cooking, had to be reminded to shave and to change his shirts, and that his wife had to prompt him in areas of basic hygiene. Counsel submitted that the Panel's thinking seemed to have been that Class 2 would be correct because he would present at work in a clean way, but that was not the test stipulated in the Guidelines in assessing whether there was Class 3 impairment. Counsel contended that the Panel had applied the wrong test. 67 Table 7.1 - self care and personal hygiene, Class 2 reads: "Mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on take-away food."

[32]

Class 3 - moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friends. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn. 70 Mr Sanhueza told the single Assessor that he is no longer interested in or is motivated to undertake hobbies, interests and pastimes, that all his interests have waned, that he does nothing and does not have the motivation, that "occasionally he reads a little bit of the newspaper but not much", that he will go shopping with his wife occasionally, gets bored easily and wants to go home quickly. 71 While Mr Sanhueza told the single Assessor that he sees his children and grandchildren, he felt "as though he had abandoned them; my daughter and son tell me to call them more because I don't", that he was not involved in social life outside the family, that he did not feel like going out or doing anything and that he prefers not to socialise. 72 In his first report of 5 August 2007, Dr Apler recorded (p 2) that Mr Sanhueza stopped coaching soccer after the accident and lost interest in seeing his grandchildren. He and his wife no longer felt close or affectionate with each other, although she continued to provide some support (p 2). He would stay at home, inactive, on his days off unless his wife took him shopping (p 3). His relationships with his family and friends declined. He lost interest in social outings (p 5). 73 In his second report of 5 August 2007 Dr Apler, in giving Mr Sanhueza a Class 3 rating, wrote: "Mr Sanhueza became withdrawn and inactive at home and would go out only if encouraged by his family." 74 Mr Sanhueza told Dr Samuell that he had not coached soccer in 2007 because of his accident and that he did not feel like doing anything. 75 The Panel noted the change in Mr Sanhueza's previous level of functioning, that he used to coach a soccer team and be more outgoing. He seldom goes to clubs now. The panel continued: "His day to day work routine does involve him in a lot of social engagement with customers and with work mates. He is able to shop with his wife occasionally and to maintain a level of social interaction with the bus passengers. He sees friends every few months and maintains some social interaction. However, it is evident that he does so less often than before the accident. [The single Assessor] records that Mr Sanhueza reported a general decrease in his level of interest and participation in activities which he had previously enjoyed. The panel observed that a change had occurred to a mild level of impairment, but not to a moderate level of impairment." 76 Counsel for Mr Sanhueza submitted that the Panel's determination that the impairment under this heading fell within Class 2 was based upon the work environment requiring a lot of social engagement with customers (passengers) and workmates. This was notwithstanding that Drs Apler, Samuell and the single Assessor had noted that there were substantial social problems with Mr Sanhueza being extremely withdrawn, going out with a support person and not wanting to be involved socially. The Panel reached the conclusion that, because he went to work and because at work he had to deal with customers (passengers) and workmates, that meant he was only mildly impaired. Counsel submitted that, before this conclusion was reached, the Panel should have interviewed Mr Sanhueza to determine the nature and extent of the work environment and an explanation given, or reasons provided, for the departure from the earlier psychiatric assessments of the three psychiatrists and an explanation of how the conclusion related to the information given to the psychiatrists. 77 It was permissible for the Panel to proceed without interviewing Mr Sanhueza after the MAA had written to Mr Sanhueza's solicitors asking if they objected to the Review Panel being conducted without an examination of Mr Sanhueza and advising that, if no objections were received by 27 February 2009, the Panel would assume that there is no objection to the review being conducted on the documentary material should the Panel consider this to be possible. 78 The difficulty for such a review, without an examination, is that the single Assessor and Drs Apler and Samuell did interview Mr Sanhueza. 79 The question arises whether meeting workmates at work and a bus driver speaking to his passengers amounts to a social event within the meaning of the words in Class 3 of Table 7.2: "rarely goes to social events and mostly when prompted by family or close friend". The words "mostly when prompted by family or close friend" do not suggest an event that arises at work or during one's work. The materials establish that Mr Sanhueza makes his own way to work and acts on his own when driving a bus, including speaking to passengers. The materials suggest that either his wife or daughter takes him out shopping, that is, he has a support person. The materials suggest that Mr Sanhueza is not actively involved in social events and that he remains quiet and withdrawn. The Tribunal was entitled to find that, if Mr Sanhueza was able to make his own way to work without a support person and drive a bus, it could not be said that he was unable to go out without a support person. 80 I do not think that a lot of social engagement with customers (bus passengers) and mixing with and speaking to workmates falls within moderate impairment of social and recreational activities under Table 7.2. That area of function does not seem to be connected with the workplace. Does Table 7.2 apply to workplace social functions, for example, a workplace Christmas function or retirement function? I do not need to decide that point. 81 The insurer did not attack the Class 3 rating given to self-care and personal hygiene or to social and recreational activities, but the duty is imposed by s 63(3A) of the MAC Act on the Panel to make a new assessment of all the matters with which the medical assessment is concerned. 82 No argument was addressed to the Court as to the two areas of function to which both the single Assessor and the Panel gave a Class 2 rating, namely travel and adaptation. According to cl 7.10 Adaptation (also called deterioration or de-compensation in work or work-like settings) refers to the repeated failure to adapt to stressful circumstances. The classes in Table 7.6 "Adaptation" deals specifically with the injured person's capacity to work and cover a range from no deficit, or minor deficit attributable to normal variation in the general population, to mild impairment, moderate impairment, severe impairment and total impairment. Adaptation is a separate area of function. 83 In his written reply Mr Sanhueza submitted that the Panel's reasons do not refer to relevant material in the earlier reports and that inferentially that material has been ignored or treated as immaterial. 84 The insurer drew attention to these statements in the Panel's Statement of Reasons:

[33]

(a) All panel members had considered all the documents provided to the [single Assessor] prior to his assessment (p 2). (b) The Panel took note of the data in the reports prepared by Drs Samuell and Apler. Similar history, observations and conclusions regarding diagnosis were reached in all three assessments (Samuell, Apler and the single Assessor) (p 3). (c) The Panel placed particular importance upon the historical data recorded by the single Assessor and Drs Samuell and Apler (p 3). (d) The Panel noted the single Assessor's reasoning as to stabilisation and considered the opinions of Drs Samuell and Apler (p 3). (e) When considering the history recorded in the reports of Drs Samuell and Apler, improvement was evident over time (p 4). (f) The Panel noted that there was a change in Mr Sanhueza's functioning as to self-care and personal hygiene since the accident and that similar histories were recorded by Drs Samuell and Apler (p 5). (g) As to social and recreational activities, the Panel wrote that the data recorded by the single Assessor and Drs Samuell and Apler was broadly in agreement. A change from Mr Sanhueza's previous level of functioning was documented (p 5). 85 Dr Apler's report (p 2) records that Mr Sanhueza stated that he became short tempered and his wife complained that he was angry with the children, shouting and raising his voice, that his marital relationship had declined and they argued over minor matters. They no longer felt close or affectionate with each other, although she continued to provide support. 86 Dr Samuell recorded that Mr Sanhueza spoke of sleep disturbance, a bad temper for no reason and easily becoming aggressive (p 4) and his wife becoming stressed because of what he has experienced, his nightmares, waking two or three times per night and decreasing appetite (p 6). 87 Dr T Lieng, a general practitioner, thought that since the incident Mr Sanhueza had been making slow but progressive progress and wrote that Mr Sanhueza had made significant improvement and returned to his previous occupation. The panel does not refer to Dr Lieng's note. 88 As to social functioning, the Panel wrote that Mr Sanhueza spoke of feeling "cold" in his feelings towards his family and felt that he had abandoned them. The Panel wrote that Mr Sanhueza commented upon the closeness of family relationships in the Mental Status Assessment and that this was noted to be consistent with a close pattern of family interaction. These seem to be deductions made from matters stated in the single Assessor's report (p 6). The Panel noted reports regarding irritability and mood changes impacting upon the quality of family relationships. The Panel wrote: "[t]here was no report of outside agencies or family members being involved in caring for the children. The Mental Status Assessment findings suggest that Mr Sanhueza related in a straightforward manner, and was able to establish rapport. Whilst noting a degree of irritability, there was no evidence to suggest relationship breakdown by way of separation of violence. 89 The Panel was correct in writing that there was no report of outside agencies or family members being involved in caring for the children. The two older children were adults and not living at home with their parents. The third child was aged 19 in August 2007 and the fourth child was aged 15 in August 2007. With Mr Sanhueza's wife being aged 43 in 2007, the three older children being over the age of 18 and the youngest child being aged 15, it is not to be expected that outside agencies or other family members (or relatives) would be involved in caring for the one child under 18 who, in 2009, was probably aged 17, or close to age 17. That child had the mother and three siblings and they would naturally be involved in supporting the youngest child. There was no evidence that Mr Sanhueza had ceased to care for his youngest child who was still living at home. There was no evidence of separation or domestic violence. They were examples given in Table 7.4. There was the matter of "[p]reviously established relationships being severely strained". There is no objection to the Panel negativing that certain examples exist. However, the Panel must consider and apply the words of general description and decide whether there was "moderate impairment".

[34]

Blanking out 90 This point applies to both the Proper Officer's decision and that of the Review Panel. After reserving and considering further the materials in evidence (being Mr Behringer's affidavits of 9 October 2009 and 12 May 2010 and the exhibits), I noticed that in the Medical Assessor's Statement of Reasons of 30 October 2008 there were references to Mr Sanhueza continuing to drive a bus and to him on occasions "blanking out". On 21 May 2010 I caused a letter in these terms to be sent to the solicitors for each of the parties: "1. In the Medical Assessors reasons of 30 October 2008 this passage appears at p 9: ' [Mr Sanhueza] reports that he has to make a concerted effort to concentrate on his bus driving. He reports, 'Occasionally I lose concentration on the road; occasionally I go blank while driving'.' 2. At p 10 the Medical Assessor states that Mr Sanhueza is currently a professional bus driver, driving up to nine hours per day maximum and that sometimes, when driving ' his private vehicle he 'blanks out'' . 3. At p 18, dealing with the ground of concentration, persistence and pace, the Medical Assessor has written: ' He reports that he has to make a concerted effort to concentrate on his bus driving. He reports, 'occasionally I lose concentration on the road; occasionally I go blank while driving''. … He reports impaired concentration and impaired short-term memory. He reports periods of 'blanking out whilst driving' .' 4. 'Blanking out' while driving is serious, even if it happens occasionally. It could endanger members of the public. The question arises whether Mr Sanhueza should, in the public interest, be driving at all, especially a public conveyance such as a bus. This may result in a substantial claim for economic loss if Mr Sanhueza is no longer permitted to drive a bus. 5. The applicant sought resolution of the dispute as to his degree of permanent impairment. 6. About 4 September 2008 the MAA determined that the dispute as to Mr Sanhueza's psychiatric injury would be determined by the nominated psychiatrist as the Assessor. 7. Section 61(1) of the Motor Accidents Compensation Act 1999 provides that the Medical Assessor or assessors to whom a medical dispute is referred is, or are, to give a certificate as to the matter referred for assessment. 8. At p 8 of the Medical Assessor's reasons he records that Mr Sanhueza reported that he resumed driving again four to five months after the accident, that he found driving difficult, but needed the money. 9. There is no reference in the insurer's application for review to the 'blanking out'. There is a reference in the reply to Mr Sanhueza stating (to the Medical Assessor) 'occasionally I lose concentration on the road; occasionally I go blank while driving'. There is no reference in the Proper Officer's reasons nor those of the Review Panel to Mr Sanhueza blanking out while driving, although both state that they have read this reply and the reasons of the Medical Assessor where the matter of blanking out is mentioned. 10. The Judge is reluctant to decide this matter without express reference to the matter which appears to be of public interest and importance. A copy of the Judgment may be sent to the Roads and Traffic Authority." 91 I omitted to refer to this sentence on p 6 of the single Assessor's reasons: "He described periods when he was driving of 'suddenly going blank'."

[48]

In these circumstances, the Court is not required to make express reference to such detailed matters in its reasons for decision." 95 I am not prepared to make the assumptions inherent in these submissions or to take the course suggested in paragraph 11. At first blush the matter appears to be too serious. Accidents can happen very quickly and as a result of momentary inattention. The insurer contended that the remarks made, taken in their context, do not indicate that Mr Sanheuza was a significant risk to public health and safety. I do not think that there has to be a significant risk. It suffices that there is some risk which cannot be dismissed as fanciful or trifling. 96 The issue requires investigation and cannot be passed over or dealt with on the basis of assumptions or some other inadequate basis. It appears to be a matter of public interest and importance. I propose to order that a copy of this Judgment be sent to the Director-General, Transport NSW (formerly NSW Department of Transport and Infrastructure) for his consideration. 97 In addition to the sentences quoted from page 18 of the single Medical Assessor's report, in paragraph 3 of the letter of 21 May 2010 (above), those sentences appear in a section dealing with concentration. Immediately after the first and second sentences quoted and before the third sentence quoted the single Medical Assessor has written: "He describes subjective cognitive difficulties. He displayed no objective cognitive difficulties on mental status examination." 98 The Review panel noted that the single Medical Assessor found no evidence of cognitive impairment and that there was no objective evidence of impaired concentration or memory functioning. The Panel placed particular reliance upon the moment by moment demands of the work of a professional driver when considering the impact of the accident upon Mr Sanhueza's capacity to concentrate, to persist with a task and to keep to a timetable. 99 I doubt if one would expect to find objective evidence of "blankouts" unless there was an incident or an accident, and even then one may have to rely on the word of the person driving as to what happened. 100 The single Medical Assessor refers on some five occasions in his reasons to Mr Sanhueza "blanking out" (pp 6, 9, 10 and 18 (twice)). "Blankouts" appeared to be a relevant consideration when considering the area of function of concentration, persistence and pace. 101 Under cl 16.16 of the Medical Assessment Guidelines, if the Proper Officer is satisfied that further information or documentation is required or is likely to assist in the review, he may request that further information or documentation.. 102 The Proper Officer does not specifically refer in his brief Statement of Reasons to the statements as to "blanking out" by Mr Sanhueza. There is the general reference to having considered the 5A application and 5R reply forms and the certificate, including the reasons by the single Medical Assessor. It seems that the Proper Officer did not exercise his discretion to request further information or documentation. Perhaps he was not satisfied that it was required or likely to assist in the review. The Proper Officer may have relied on Mr Sanhueza reporting for work on his own and continuing to drive a bus some months after the incident for an extended period, albeit on a different route. The issue which the Proper Officer was required to consider and decide was whether there was reasonable cause to suspect that the medical assessment of the single Assessor was incorrect in a material respect, having regard to the particulars set out in the review application. He addressed that issue. It was a matter for him whether he requested information. 103 I adhere to the view earlier expressed that I would not set aside the Proper Officer's decision. 104 At p 3 of the Panel's Statement of Reasons it was recorded that the Panel took note of the data in the reports of Drs Samuell and Apler. Dr Samuell wrote that Mr Sanhueza's concentration at interview and his cognitive functioning were normal. Dr Samuell also wrote that it was encouraging that Mr Sanhueza was working on a fulltime basis with the only restrictions being that he does not work the route on which the accident occurred. 105 The Review panel appears to have proceeded on the basis that Mr Sanhueza was working as a professional bus driver and placed "particuar reliance upon the moment by moment demands" of that work. The Panel does not refer to the "blank outs" and does not appear to have investigated the extent and seriousness of these, nor considered whether, in view of these, Mr Sanhueza should be driving a bus. The single Assessor did not address this latter issue. There is no evidence when the last "blank out" occurred, nor as to the circumstances in which it occurred, its extent or seriousness. 106 In my opinion, the episodes of "blanking out" required investigation. They formed part of the material on which the single Assessor reached his assessment that there was a Class 3 level of moderate impairment in the category of concentration, persistence and pace. If Mr Sanhueza should not be allowed to drive a bus in the public interest, this may affect the level of impairment in other Areas of Function.

[53]

In Yusuf at p 351 this passage appears: "It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia , if an administrative tribunal … 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it'. 'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap." 110 In my opinion there has been a failure by the Panel to take relevant considerations into account. The Panel has not provided any explanation for not dealing with the statement of Mr Sanhueza recorded by the single Assessor as to blanking out. This has to be coupled with my earlier expressed views that in respect of some of the Areas of Function, namely, social functioning, self-care and personal hygiene and social and recreational activities, the Review Panel applied incorrect tests or principles. The matter needs to be reconsidered by a fresh Panel. Such reconsideration should take place after the Director-General NSW Department of Transport and Infrastructure has considered and determined whether Mr Sanhueza should be accredited and authorised as a public bus driver in the Liverpool District or elsewhere. 111 The insurer relied on the Panel discussing the data in the report prepared by the single Medical Assessor and placing particular importance upon the historical data recorded by the Assessor and noted the history recorded by Drs Apler and Samuell. 112 In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], Sackville J stated: "A decision-maker may be aware of information without paying any attention to it or giving it any consideration."

[58]

The insurer contended: "[T]he Court should not entertain this application as a matter of its discretion in judicial review matters." 120 Mr Sanhueza submitted in reply that it was not unreasonable to delay a challenge to the Proper Officer's decision given the expense of Court proceedings and the prospect of a favourable outcome (from the Review Panel). Reliance was placed on De Gelder v MAA (2009) NSWSC 1173 at [98] - [104]. 121 The affidavit of Matthew Berenger of 12 May 2010 reveals that an Application for General Assessment was lodged with the MAA on 23 December 2008. There was no issue as to liability so that quantum was able to be determined by an Assessor appointed by the MAA. There was further correspondence. An assessment hearing was to take place on 27 July 2009. Mr Sanhueza's solicitor arranged a conference with junior counsel on 29 June 2009. It was not until this conference, when counsel raised the question of seeking a review of the Appeal Panel Certificate, that the solicitor thought about such an application to this Court and the matter was discussed with the client. Mr Sanhueza's solicitor believed that his client's counsel raised the possibility of an administrative application with the solicitor for the insurer. Mr Sanhueza's solicitor has said that, at the time of the informal settlement conference held later on 29 June 2009, it was impossible to obtain firm instructions from his client as to an administrative application as the client did not speak fluent English and instructions had to be obtained through his daughter who translated. Mr Sanhueza was to consider his position and provide further instructions. The informal settlement conference was unsuccessful. 122 On 23 July 2009 a brief was delivered to senior counsel to provide advice as to the prospects of success of an administrative application. The assessment hearing on 27 July 2009 did not proceed. The first conference arranged with Senior Counsel was on 10 September 2009. Consequent upon advice received, a Summons was filed that day seeking the review of the decision of the Proper Officer and that of the Review Panel. 123 Mr Sanhueza's solicitor did not consider the possibility of an administrative review application until alerted by junior counsel. This was a legal matter and not one to which either a reasonable man or a Spanish-speaking plaintiff with limited English speaking skills could be expected to address. Thereafter matters proceeded cautiously with the advice of experienced senior counsel being taken. When action was taken on 10 September 2009 both the decision of the Proper Officer and that of the Review Panel were challenged on the grounds of jurisdictional error and/or error of law on the face of the record. 124 I would not apply the doctrine of Acquiescence: see Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th Edition, 36090 - 36095. However, the relief sought is discretionary and delay is often a relevant factor. In the present case the delay has been explained satisfactorily. Mr Sanhueza's solicitor was faced with the situation where he received the Proper Officer's decision about 11 February 2009. On that date the MAA convened the Review Panel and, by letter to the plaintiff's solicitor, advised of the teleconference on 27 February 2009. That was a relatively short period. Supreme Courts often prefer that parties exhaust their rights, including their defences, before coming to the Supreme Court. Neither the plaintiff nor his solicitor appreciated that an administrative review application was reasonably open. 125 Legal costs impose a heavy burden and financial prudence would suggest that the better course was not to make any application for review to the Court until the Review Panel made its decision. If the injured party succeeded that would be an end of the matter. If the injured party lost, he and his advisers could consider whether an administrative review application should be made in respect of the Review Panel's determination combined with an administrative review of the Proper Officer's decision. That was likely to lead to one set of proceedings lasting no more than one day and reduce costs. 126 The delay in this case was about seven months from receipt of the Proper Officer's decision to the filing of the Summons and about six months from the receipt of the Panel's decision to the filing of the Summons. The Assessment hearing has yet to proceed. Nothing has been finalised. There is no relevant prejudice that cannot be compensated for by an appropriate order as to costs. There should be an investigation of the "blank outs" in the public interest. 127 In the present case I would not refuse relief on discretionary grounds in respect of the Proper Officer's decision or the Review Panel's decision.

Sanhueza v AAMI Limited

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