Towell v Schuetrumpe

PARTIES: Ronald Towell (Plaintiff) Barry Stewart Schuetrumpe (Defendant)

COUNSEL: Mr Hooke of counsel (Plaintiff) Mr R Forster SC (Defendant)

1 HIS HONOUR: On 19 October 2001 the plaintiff/applicant Mr Ronald Towell (for whom Mr Hooke of counsel appears) was injured in a motor vehicle accident ("MVA") when the car driven by the defendant/respondent Mr Barry Stewart Schuetrumpe (for whom Mr R Forster SC appears) collided with his vehicle.

2 The present motion is brought by Mr Towell in respect of a certificate issued on 16 August 2006 by a Review Panel (consisting of three medical practitioners) which panel assessed Mr Towell's level of permanent impairment as "not greater than ten percent" (p 110 affidavit of Mr Scott Hall-Johnston dated 7/11/06).

3 The Review Panel's certificate rejected the certificate of Assessor Dr James Bodel who as assessor had issued a certificate on 30 November 2005. That certificate had also assessed Mr Towell as having a whole person impairment not greater than 10 percent but had arrived at the same conclusion in a different manner.

4 Dr Bodel's certificate of 30 November 2005 itself superseded an earlier certificate by Dr Bodel issued on 23 March 2004 in which Dr Bodel had assessed Mr Towell as having a whole person impairment greater than 10 percent.

5 It is clear that what has led to the differences in the three certificates is the question of how a hip replacement performed on Mr Towell after the MVA is to be viewed. Mr Towell in 1988, 13 years before the MVA, had a total hip replacement. He had also had a lumbar laminectomy many years before the MVA (see p 69 of affidavit of Mr Hall-Johnston). On 17 August 2003 he had a second total hip replacement.

6 The Guidelines that were in place in 2004 when Dr Bodel provided his first certificate included the following (Exhibit "A"): " Pre-existing Impairment

1.20 The evaluation of the permanent impairment may be complicated by the existence of an impairment prior to the relevant motor accident. The capacity of an assessor to determine a change in impairment will depend upon the reliability of clinical information in relation to the pre-existing condition. To quote the AMA 4 Guides (p 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments'.

1.21 If there is no objective evidence of a pre-existing symptomatic impairment then its possible presence should be ignored."

7 The 2005 Guidelines which were in force when Dr Bodel prepared his second certificate included the following (Exhibit "B"): "1.30 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment then its possible presence should be ignored."

8 The legislative framework within which the motion is brought is s 61 of the Motor Accidents Compensation Act 1999 ("MACA"). The Act provides a scheme for the assessment of injuries of persons involved in motor accidents in New South Wales and includes limits on what and when recovery can be made. Sections 58, 60, 61, 62, 63, 131, 132 and 133 are in the following terms (with emphasis added): " 58 Application

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters:

(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b) whether any such treatment relates to the injury caused by the motor accident,

(d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident ,

(e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident.

(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

(1) A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor.

(2) If the insurer disputes all liability under a claim the dispute cannot be referred for assessment under this Part by the claimant alone.

(3) The request for a referral is to be made to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).

(4) The proper officer of the Authority is to arrange for any such request that is duly made to be referred to one or more medical assessors.

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(a) whether the degree of permanent impairment of the injured person is greater than 10%, or

(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or

(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances, or

is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b), (b1) or (c).

(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and

(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b), (b1) or (c).

(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

62 Referral of matter for further medical assessment

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only 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 application.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) Section 61 applies to any such new certificate.

131 Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

132 Assessment of impairment required before award of damages for non-economic loss if dispute over impairment threshold

(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment).

Note. The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court - see section 61.

(2) The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4.

(3) A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the injury has stabilised. Court proceedings with respect to any such matter may be adjourned until the assessment is made.

(a) the degree of impairment being re-assessed under Part 3.4, or

(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2) The assessment of the degree of permanent impairment is to be made in accordance with:

(a) MAA Medical Guidelines issued for that purpose, or

(b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

9 It has been held by Johnson J in Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090 at [17] that the Guidelines are a form of delegated legislation but the Act is paramount and not the Guidelines: see also NRMA Insurance Ltd v Motor Accidents Authority of NSW (2004) 61 NSWLR 264; [2004] NSWSC 567 per Dunford J at [28] to the same effect.

10 The objects of the Act are set out in s 5, and details of the history of the legislation and extracts from the Second Reading Speech can be found in [14]-[19] of Murdoch v Davis (2005) 44 MVR 415; [2005] NSWCA 466 per Brownie AJA.

11 I received helpful written and oral submissions from counsel. The principal questions on this motion are:

(1) whether or not there was a denial of procedural fairness to Mr Towell in connection with the issue of the Review Panel's certificate; and

(2) secondly, if there was, is the Court satisfied that admission of the Review Panel's certificate as to the fact that Mr Towell's level of permanent impairment as a result of the accident did not exceed 10 percent would cause substantial injustice to Mr Towell.

12 A preliminary issue arose however, namely whether it was appropriate for Mr Towell to bring a motion at a time earlier than the hearing of the matter (indeed even before the matter had been fixed for hearing). Mr Forster contended that it was not appropriate, and that the matter was really one for the trial judge.

13 Section 61(4) refers to "in court proceedings" and does not in terms limit its application to hearing of a matter, but the reference to "adjourn the proceedings" in s 61(5) and "substitute a determination of the court" seem to point to the matter being appropriately raised at the hearing.

14 The question of timing of an application for rejection was raised in the matter of Maffra v Egan (No 1) [2006] NSWDC 22. In that case, Johnstone DCJ was critical of the lateness of the application for rejection and he indicated how inconvenient it would be for the parties to only know whether the certificate was rejected at the hearing. His Honour encouraged application to be made by notice of motion well in advance of the hearing, which is what the plaintiff has done here. I am not convinced that Johnstone DCJ was in error in requiring an early determination and I proceed on the basis that the motion is not premature.

15 There is another issue wrapped up in the question of timing and that is whether, if the court should determine that the certificate ought not be rejected, that determination is binding on the injured person. Since the parties to the issue are the same now as at the hearing and since it is an issue relevant to the hearing I am inclined to think that there would be an issue estoppel on the point and hence it cannot be ventilated at the hearing again. The question of issue estoppel was not fully explored and of course would need to be considered at the trial, but it seems to me the utility of the procedure encouraged by Johnstone DCJ would be much diminished if a plaintiff whose application for rejection was rejected were free to ventilate the same issue at trial as Mr Hooke suggested he would.

16 There is another issue which was raised by the plaintiff and that is whether the Review Panel in taking the view it did, had gone further than it ought and usurped the function of the Court. The issue was said to be linked to a wider issue of the extent to which a certificate is binding on the Court and what happens if the certificate goes further than it ought.

17 Mr Hooke argued that s 61(1) does not use the words "as a result of the injury caused by the motor accident" when speaking of level of impairment. He submitted that there was no basis for the Review Panel to have formed a view about the causal effect (or lack thereof) of the accident on the existing prosthesis.

18 When regard is paid to the terms of ss 58(1)(d), 60(1), 61(1), 61(2)(a) and 131, I think it is clear that what the assessor (and the Review Panel when it takes over the role of assessor) must do is determine whether the degree of impairment of the injured person is greater than 10 percent "as a result of the injury caused by the motor accident". Those words are not, it is true, reproduced in s 61(2)(a) but the other sections to which I have referred make it clear that that is the task to be performed. That the Review Panel understood that was their task is made clear by the terms of their "Certificate of Determination as to the Degree of Permanent Impairment of the Injured Person as a Result of the Injury Caused by the Motor Accident": p 110 of Mr Hall-Johnston's affidavit and see the wording of the report.

19 Mr Hooke argued that where common law rights are being taken away they can be taken away only expressly or by clear implication. I think it is clear that the MACA was eroding common law rights and one does not need to examine each section to see whether the legislative purpose has been reiterated.

20 Once it is accepted that the Review Panel had to consider the extent to which Mr Towell's permanent impairment was caused by the MVA, the question clearly arose, did the MVA damage the existing prosthesis and/or cause a tear, break or fracture to any surrounding tissue or bone and lead to a need for a new prosthesis? If it did not lead to a need for a new prosthesis and rather a new prosthesis was inserted due to the age of the existing prosthesis or some pre-existing problem, then any impairment (even a worsening of condition of the patient due to the second prosthesis) was not a consequence of, or causally related to, the MVA. The Review Panel clearly attended to this issue when they concluded: "After deliberating upon the clinical information provided by Dr Meakin in his assessment of the claimant in particular, in conjunction with the panel's assessment of the imaging studies of the right hip that had been provided subsequent to the initial telephone conference of the panel, the panel reached its considered decision that the motor vehicle accident was not causally related to the loosening of the right hip joint. It is notable particularly with reference to the report by Dr Hehir dated 19 August 2005 that he made commentary: 'I was aware that his previous hip replacement on the right was now in excess of 10 years old and was taking a lot of strain from his job. He was not complaining about it and in fact remarked that it was one of the only places that did not hurt. I made a note in August 2000 that we would look at the status of his hip after his business was sold because of the age of the replacement, not for any other reason.'

After taking into account the clinical information provided in the initial documents as well as the further requested documents and x-rays, the panel decided that the loosening of the right hip prosthesis was not caused by the motor vehicle accident, but was the concurrent presentation of an aging prosthesis that had reached the end of its life.

Thus, the panel when considering the two injuries listed as being caused by the motor vehicle accident has decided that the motor vehicle accident was the cause of injury to his lower back leading to radiculopathy but did not consider that the motor vehicle accident was the cause of loosening of the right hip prosthesis."

21 That conclusion clearly reflects a view that the need for a new hip prosthesis was not a consequence of the MVA. The report of 19 August 2005 is Exhibit "D".

22 When Dr Bodel had earlier produced his second certificate he approached the matter in a slightly different way. He applied the table (see Exhibit "C") which allows 15 percent permanent impairment for a total hip replacement, but then considered the level of impairment prior to the MVA - that also was a 15 percent figure. He therefore deducted 15 percent from the total for hip and back effectively assessing the hip at a net 0 percent. That approach conceptually was more favourable to Mr Towell because it accepted that the second hip replacement was caused by the MVA, but then in effect Dr Bodel considered how much worse off now is Mr Towell with his new prosthesis than he was immediately prior to the accident. It is possible of course that the second prosthesis might not be as successful as the first for any number of reasons including the fact that it was a second prosthesis - that could all be factored into the assessment. So for example, if the injured person now walked with a profound limp and had severe pain on a continuing basis there would be a justifiable allowance for the worsened condition. In fact, Dr Bodel did not regard Mr Towell as any worse off (on a permanent basis) in comparison to his pre-accident condition.

23 In Pham v Shui (unreported, DCNSW, 7/11/05), Hungerford QC ADCJ held that a certificate to the effect that the degree of impairment was not greater than 10 percent, that issues of causation relevant in reaching that conclusion were conclusively determined not only in relation to non-economic loss (which had been conceded) but in relation to economic loss as well. That case has been taken on appeal to the Court of Appeal, which I was informed has not as yet handed down its decision.

24 In Maffra v Egan (No 1) [2006] NSWDC 22, Johnstone DCJ had to consider a similar argument, which he described as "whether the certificates are conclusive as to causation for all purposes as opposed to the more limited nature of conclusiveness, namely the degree of permanent impairment": see at [19]. He referred to Pham and to a decision of Ainslie-Wallace DCJ in Richards v Webster (unreported, 2/08/05, NSWDC) (a copy of which the parties have been unable to obtain), which appears to point in a contrary direction to Pham. Johnstone DCJ referred to Brown v Lewis [2006] NSWCA 87 in which it was held that a certificate is conclusive evidence only of the fact that the degree of impairment is greater than 10 percent, and is not conclusive evidence of the actual degree of impairment if it is greater than 10 percent. All the certificate does is "unlock the door to an award of damages for non-economic loss": see [20] per Mason P. Johnstone DCJ rejected the defendant's argument that the certificates precluded the plaintiff from agitating at the trial any issue of causation saying that all that the certificate did was, in that case, keep the door locked to an award for damages for non-economic loss.

25 It is apparent that Pham and Maffra are not reconcilable on the question of whether a causation finding inherent in the conclusion for the degree of permanent impairment is binding for purposes other than an award of non-economic loss (to which the 10 percent permanent impairment finding is relevant: see s 31) but I do not think that there is any suggestion in these cases or Brown v Lewis that causal effect of the motor accident is not a relevant part of the enquiry for determining whether the level of permanent impairment exceeds 10 percent - what is in issue is what other use may be made of such a conclusion. That is not a question which I need to determine for the purpose of this motion.

26 The particular content of the obligation to accord procedural fairness requires attention to the particular provisions of the Act that regulates a tribunal's work, but also to the scope and objects of the Act as a whole. Whilst the steps to be taken are not necessarily the same as those in a court, procedural fairness issues may also be affected by the scope and objects of the Act as a whole: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411; [2005] HCA 72 at [23]-[24].

27 In a letter answering a requirement for particulars, Mr Towell's solicitors identified three matters as founding the assertion of lack of procedural fairness: "(a) The review panel did not afford the parties opportunity to present evidence or make submissions in relation to the issue of causation.

(b) The review panel erred in its finding of causation in circumstances where it did not have the benefit of a clinical examination of the Plaintiff, where that advantage had been available to the Assessor.

(c) The review panel did not discharge its function."

28 The first matter fits, I think, into the category identified in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 by McHugh J: "[101] One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding. [ Mahon v Air New Zealand Ltd [1984] AC 808 at 820-1; (1983) 50 ALR 193 at 206-7.]"

29 In my view it was clear that the Review Panel had to consider whether the need for a new prosthesis was caused by the MVA, and if it was, whether the plaintiff's degree of permanent impairment as a result of the second prosthesis was worse than the degree of permanent impairment from the first. That the issue was a live one was I think clear from the statutory task which the Panel was required to perform, by the reliance by the defendant on the notes of Dr Hehir which had been furnished to Dr Bodel in connection with the second certificate, and by reliance by the plaintiff on the letter of Dr Hehir (Exhibit "D") quoted by the Review Panel in the passage extracted at [18] above. The clinical notes included the following (see p 34 of affidavit of Mr Hall-Johnston: "15 Aug 2000: Back and right hip replacement 12 years ago. Needs full overhaul and after sale of business"

"1 December 2000: Bad without Celebrex 14 years since hip done. 14 years. Need xray. Ian Meakin operated on back and hip."

"8 March 2001: Great response from Celebrex pre employment form."

30 The fact that the Review Panel was made up of three medical experts is relevant. There were notes that pointed to the need for a review of the prosthesis and suggested right hip problems before the MVA, and whilst it is true that there was evidence before the Review Panel from the plaintiff's general practitioner which tended to neutralise or at least diminish the effects of his notes, the Review Panel was entitled to take all of the evidence into account including their own knowledge of hip prostheses and the likely causes of loosening of screws. The Review Panel seems to have placed little weight if any on the clinical notes and more on Dr Hehir's report, as well as a detailed examination of Dr Meakin's notes and radiological information: see p 117 of Mr Hall-Johnston's affidavit. The make up of the Review Panel is relevant to the purposes of the legislation and the desire of the legislature to move away from "resource draining litigation" to a system of independent assessment (see extract of Second Reading Speech at [19] of Murdoch).

31 I do not think that the Panel was obligated to clinically examine the plaintiff. The question of whether screws were loosened by the MVA was not something which would obviously be clarified by a clinical examination of the plaintiff after replacement of the old prosthesis. The Panel was made up of medical experts who were well qualified to form a view as to what information would assist them in their inquiry, and indeed they initiated a request for further information.

32 I take item (c) set out in [27] above to be a reference to the causation argument with which I have already dealt.

33 In Darke v El Debal (2006) 153 IR 73; [2006] NSWCA 86 at [76], Mason P, with whom Santow and McColl JJA agreed, said: "… a person with authority to decide a matter does not deny procedural fairness simply because he or she rejects the propositions advanced by those who seek the decision. Those parties are entitled to have the opportunity to place relevant information and arguments before the decision-maker, which is very different from saying they have a right to a favourable decision. Procedural fairness is concerned with process, not outcomes ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCA 72, 222 ALR 411 at [16])."

34 It is unfortunate from the plaintiff's point of view that he initially received a favourable result, the defendant's challenge to which was initially unsuccessful, only to see it altered in the second assessment and on the Review Panel's determination, but contrary to Mr Hooke's submission that is not a ground of procedural unfairness relevant to the Review Panel's determination which determination was conducted in accordance with the statutory scheme, and involved, as the Panel noted (at p 116) consideration afresh "of all aspects of the assessment under review".

35 It was argued before me that the Review Panel had ignored the Guidelines. If the decision that the MVA had not caused the need for a replacement prosthesis was open to it, as I think it was, then there was no need to have regard to the Guidelines. Strictly it is not necessary to consider whether Dr Bodel's approach for the second certificate was flawed, but I shall comment that in my view it was appropriate for Dr Bodel to take into account the existence of a prosthetic hip prior to the MVA. I do not think that the Guidelines should be treated as requiring the existence of a prosthesis prior to the MVA to be ignored. I am inclined to think that the existence of a prosthetic hip is "objective evidence of a pre-existing symptomatic permanent impairment", but if I am wrong in that view and the Guidelines are to be read as producing the result that pre-existing prosthetics are ignored in assessing consequences of an MVA, then in my view it is a result that could not have been intended by the legislature which requires enquiry as to the extent to which a person has suffered permanent impairment caused by the MVA. That enquiry entails, in my view, a comparison of the insured person's medical condition before and after the MVA, both of which in this case involve the existence of a prosthetic hip. I think it can be inferred that Dr Bodel in the first assessment (in which he did specifically refer to the then current Guidelines) did not approach the matter in the way in which I have indicated he ought, but I do not think that Dr Bodel should be taken as ignoring the Guidelines in his second assessment - he had before him notes of Dr Hehir which pointed to pre-MVA symptoms and concerns about the prosthesis, so he very likely did not regard himself as having a basis for ignoring the existence of the prosthesis.

36 The view that I have reached, that there was no procedural unfairness, leads to the result that I do not need to consider the "substantial injustice" requirement, which, I think, was designed to preclude rejection where although there has been found to be procedural unfairness the Court is of the view that the result would have been the same even without such unfairness.

37 It follows that the plaintiff's motion should be dismissed. I will hear the parties on the issue of costs.

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