Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 | Case summary

Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 | Case summary | Zoe

Chronology 4 The appellant was injured in a motor accident on 31 May 2001. The van he was driving was hit in the rear by another vehicle, and toppled over a fence and overturned before coming to rest in an upright position. 5 In the appellant's claim made in accordance with the Act, there was disagreement upon whether his injury had stabilised and the degree of his permanent impairment as a result of the injury caused by the motor accident. These were "medical assessment matters" within s 58 of the Act. (All references are to the Act as it stood prior to the amendments by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007, which commenced on 1 October 2008 after the relevant decisions.) The disagreement was a "medical dispute" able to be referred to the Authority, and by it to a medical assessor, pursuant to s 60 of the Act. 6 On 30 July 2003 the appellant referred the medical dispute to the Authority, apparently with the concurrence of the respondent. The Authority arranged for it to be referred to a medical assessor, Dr Margaret Gibson. The appellant asserted injury to his back, neck and left arm, and relied in particular on a report by Dr James Bodel said to state that his condition was "stable and permanent" and to assess degrees of permanent impairment of 12 per cent, 5 per cent and 5 per cent for the respective injuries. 7 Dr Gibson examined the appellant on 12 December 2003. She gave certificates as to the matters referred for assessment (s 61(1)) with accompanying reasons (s 61(9)) both dated that day. She certified that the three injuries had stabilised, that the neck injury gave rise to no permanent impairment, and that the back and left arm injuries were permanent and gave rise to "a whole person impairment which, in total, is not greater than ten per cent" (A certificate relating impairment to ten per cent reflected s 61(2)(a) of the Act, and was and is explained by the threshold for damages for non-economic loss in s 131.) From the accompanying reasons, the degree of permanent impairment was assessed at zero in respect of each of the three injuries. 8 Section 62 of the Act provided for referral again for assessment - " 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 ground of the deterioration of the injury or additional relevant information about the injury, or

(b) by a court or claims assessor. (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." 9 On 13 October 2006 the appellant applied for referral again of the medical dispute pursuant to s 62(1)(a), on the grounds of deterioration of the injury and additional relevant information about the injury. The Proper Officer of the Authority acceded to the application, and there was referral to another medical assessor, Dr Nigel Menogue. 10 Dr Menogue examined the appellant on 6 March 2007. By certificates of that date he certified that the three injuries, the left arm injury now being described as a shoulder injury, had stabilised, and that neck and low back injuries caused by the motor accident gave rise to whole person impairment not greater than ten per cent in total. From the accompanying reasons of the same date, Dr Menogue considered that under the MAA Impairment Assessment Guidelines the appellant's shoulder symptoms were to be assessed in relation to the neck injury and assessed the degree of permanent impairment at zero in respect of each of the back and neck injuries. 11 The appellant did not apply to the Proper Officer of the Authority pursuant to s 63 of the Act to refer the medical assessment by Dr Menogue to a review panel of medical assessors for review. 12 On 20 December 2007 the appellant referred the claim to the Authority for assessment under Pt 4.4 of the Act. He asserted an entitlement to non-economic loss, and the submissions in support of the application foreshadowed an application for referral again for assessment pursuant to s 62(1)(b) of the Act. The submissions were critical of the assessment by Dr Menogue, including complaint that Dr Menogue had been biased and had denied the appellant procedural fairness. For this the appellant relied in part on a statement dated 24 April 2007 as to, amongst other things, what he said had occurred at the time of Dr Menogue's examination. 13 In the course of a teleconference conducted by the claims assessor on 20 March 2008, application was made for referral again for assessment of the appellant's permanent impairment. The claims assessor noted that the respective submissions contained the grounds for the application and the respondent's reply, and reserved his decision. 14 In reasons given on 15 April 2008 the claims assessor declined the application. This was the April 2008 decision in respect of which the appellant sought relief ("the April decision"). 15 On 24 April 2008 the appellant applied for the dispute as to permanent impairment to be referred again for assessment pursuant to s 62(1)(a) of the Act, it seems because one of matters to which the claims assessor had had regard in making the April decision was his failure to have done so. The Proper Officer of the Authority was not satisfied that there had been deterioration of the injury or additional relevant information about the injury, and on 20 June 2008 dismissed the application. 16 On 15 July 2008 the appellant once more applied to the claims assessor for referral again pursuant to s 62(1)(b) of the Act. His submissions were critical of the Proper Officer's dismissal of the application pursuant to s 62(1)(a). They were again critical of the assessment made by Dr Menogue, including by complaint of bias and denial of procedural fairness. 17 In reasons given on 24 September 2008 the claims assessor declined to refer the matter again for assessment. This was the September 2008 decision in respect of which the appellant sought relief ("the September decision"). 18 By a summons filed on 3 December 2008 the appellant claimed orders in the nature of certiorari setting aside the April decision and the September decision, as to each "on the basis that the decision was vitiated by jurisdictional error and of no effect". He also sought orders in the nature of mandamus, or alternatively pursuant to s 65 of the Supreme Court Act, that the claims assessor exercise his power under s 62 of the Act according to law.

Dr Menogue's assessment 19 Jurisdictional errors were said to lie in the claims assessor's dealings with the appellant's complaints of bias and denial of procedural fairness on the part of Dr Menogue. The complaints were based on the following matters. 20 First, starting at p 3 of his reasons Dr Menogue set out from ambulance and other records and a series of medical reports a history of the appellant's symptoms and treatment following the motor accident. He had earlier identified documents submitted since Dr Gibson's medical assessment, including reports of Dr Manohar and Professor Murrell. After referring in the history to Dr Gibson's medical assessment, he said - "Since the assessment of December 2003, I inquired from Mr Trazivuk as to whether he had had ongoing medical management for his problems. He stated that he had been referred to the specialists and I refer to those specialist reports and note that each of these reports are addressed to the claimant's solicitor and that the follow-up letter from his treating GP dated 20th September 2006 does not make reference to an alteration in management plan beyond that assessed by Dr Gibson in her assessment of December 2003. In other words, the assessments by Dr Manohar and Professor Murrell were generated by a solicitor with no expectation of management to follow." 21 He went on to refer to the reports of Dr Manohar and Professor Murrell as part of the history. 22 Secondly, Dr Menogue's record of his clinical examination of the appellant, starting at p 7 of his reasons, began - "On examination he was of tall stature and of muscular build. He walked with a normal gait. It was noted as he walked into the consulting room and on the way out he carried all his X-rays in his left arm. He appeared to swing his left arm freely while walking from the consulting room talking with the Serbian interpreter. Following the assessment, He [sic] walked normally across the road to his van, turned his head initially to the right presumably to farewell the interpreter and then turned his head freely to the left to see if there was oncoming traffic. He opened the van door and threw the X-rays into the passenger seat without any expression of discomfort. In the consulting room he rose steadily using both hands to push himself off the chair. He dressed and undressed holding his left arm by his side, he was cautious with all movements and tended to hold his left arm by his side for protection. He was not wearing a cervical collar, shoulder brace or lumbar corset. He had a normal posture; there was no evidence of pelvic tilt or limb shortening." 23 Thereafter Dr Menogue recorded specifically his examinations of the lumbo-sacral spine, the cervical spine and the shoulders. In the section of the reasons headed "Conclusions" he said - " Consistency of Presentation Mr Trazivuk was undemonstrative in providing his history today. However, this was not so with the formal part of the examination, which appeared significantly at variance with observed movements during other parts of the consultation." 24 Thirdly, in a section of his reasons headed "Review of Documentation" commencing at p 10 Dr Menogue referred to an assessment by Dr Sekel of 14 February 2007, saying - "I note the most recent assessment performed by Dr Sekel on 14th February 2007 and referred to MAS by Zurich. Dr Sekel notes a number of observations in regard to the information that has been compiled in regard to Mr Trazivuk's injury and it is worth commenting on some points. I note on page 2 of the History of Present Complaint, Dr Sekel makes reference to some features of the vehicle and expressed a view that perhaps the vehicle had not rolled at all. Certainly the passenger side roof does appear undamaged and it would be expected that in a roll performing a right-hand turn would result in the fan striking the left-hand front passenger roof side first and that this should bear the brunt of any damage. However, it is totally undamaged. It is unusual to expect the van to flip at a speed of 25kph so I can see the inconsistency in that point. I note that the ambulance officer in his report makes reference to, and I have mentioned this already in his report, "Major deformation to the vehicle". However, I also note significant damage to the roof of the driver's side and following Dr Sekel's assertion that perhaps the car didn't roll at all and simply hit the metal retaining wall and bounced back onto its four tyres; this explanation then does not explain why the driver's side roof line had been compressed to the extent that the photographs show. In summary, therefore, it does appear that the vehicle must have flipped over the metal fence, somehow scraped only the nearside passenger roof line, landed more heavily on the driver's roof line and then come back onto its tyres. Having said that, it would be highly unlikely for the vehicle to roll again, flip over missing the passenger side roof and land back on its tyres, still without damaging the passenger side roof line. So it is conceded that the car probably did roll but certainly only once." 25 Dr Menogue concluded, in summary, that the three injuries had stabilised, that the injuries to the neck and lower back were permanent, and that the left shoulder symptoms were "a feature of his cervical injury"; at another point, were "traumatic in nature and relate to his cervical disorder". As I have said, he considered that under the guidelines for assessment the appellant's shoulder symptoms were to be assessed in relation to the neck injury. 26 Fourthly, the appellant's statement of 24 April 2007 included - "7.22 When I left the medical assessment of 6th March 2007 after seeing Dr Menogue I had the X rays in my left hand but by arm was down by my side. I placed the x rays between the seats in the front without lifting my left arm to shoulder level. I am able to turn my head to the right but I cannot turn my head full to the left. My head movements were the same when I was being assessed by Dr Menogue and when I left his office. In fact I saw him standing at the window and watching me, however I did not try to affect any type of restriction for his benefit.

7.23 I spent 20 minutes with Dr Menogue. The first 10 minutes was used by him to try and convince me that my vehicle had not rolled over. He had pictures of my vehicle on his desk and he did not seem to believe that my vehicle had turned over. I told him that there were witnesses and a police report. I thought I was there to be assessed for my physical symptoms but he concentrated the first half of the assessment on saying my vehicle did not roll over at all. I know that the van did roll over because I felt myself upside down in the van. I know it rolled over at least once but it could have been twice. At the end of the interview he said he was the person who was making the decision about my claim, and it appeared to me that he was trying to exercise power over me at that time. During the course of the examination with Dr Menogue, he examined my neck, back and left shoulder. I have been informed that Dr Menogue states that there was no guarding of my movements, and there was no loss of asymmetry. This is difficult to accept when it comes down to my neck and my back. I know that my neck and back provide me with significant problems on a daily basis and that I have to watch how I move because sudden movements provide pain. I have pain every day. I indicated to Dr Menogue very clearly that I have more restriction when moving my neck to the left than I do to the right and I showed him this. He has completely left this out of his examination and his report to my solicitor. Similarly, I showed Dr Menogue that I have less movement when bending to the left side with my lower back than I do to the right. Again Dr Menogue has ignored this. I am surprised by the doctors behaviour and the fact that he states that my left shoulder injury is not related to the accident. I find it surprising that he states that I did not injure my left shoulder in the accident when it was explained to him that my vehicle rolled and that I had received numerous injuries in the accident. I had not felt any pain in any of these areas prior to the accident. 7.24 I am equally surprised that Dr Menogue spied on me as I was leaving his office. I have never behaved in the manner which was different to that during the course of my examination with Dr Menogue. I had in fact parked my vehicle directly across the road from Dr Menogue's surgery. I actually looked up to see the surgery and saw Dr Menogue looking at me. I thought this peculiar. Despite this, at no time did I behave in a manner that would have indicated to Dr Menogue that I was un injured and moving my head freely as indicated by him in his report to my solicitor.

Procedural fairness 27 The significance of a medical assessment to a claimant's entitlement to damages, particularly when it is conclusive evidence in some respects (s 61(2); under the current s 61(2), the more so) has often been recognised, see for example Siddik v WorkCover Authority of New South Wales [2008] NSWCA 116 at [51]-[57] per McColl JA, Mason P agreeing, and McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 at [20]-[22] per Giles JA, Allsop P agreeing. In both these cases it was accepted that a review panel was obliged to afford procedural fairness in relation to the extent of dispute in matters referred for assessment. As a general proposition, a sole medical assessor must similarly afford procedural fairness. 28 However, it is "clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case": SZBEL v Minister for Immigration and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] per Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ, referring to Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-4 per Kitto J; see also Kioa v West (1985) 150 CLR 550 at 584-5 per Mason J. What is required of a medical assessor, in particular in relation to conducting an examination of a claimant, cannot be comprehensively stated. 29 In his applications to the claims assessor, the appellant complained that Dr Menogue had denied him procedural fairness in having regard, in making his assessment, to his observations of the appellant as he entered and left the consulting room and on returning to his van. It was not expressly submitted that Dr Menogue should not have had regard to those observations without first drawing them to the appellant's attention so that the appellant could respond to them, although that was said in the subsequent court proceedings. As described in these reasons, in his submissions to the claims assessor prior to the September decision the appellant referred to a Code of Conduct for Medical Assessors - October 2002 as stating that a medical assessor should provide each party to an assessment an opportunity to put their case and should ensure that decisions are made according to law, with due regard to fairness and equity and based on relevant and probative information. 30 The parties could not now locate a 2002 Code, but agreed that there were 2006 and 2007 Codes with like statements; however, they were not part of the guidelines issued under s 44 of the Act, and appeared to be part of the terms and conditions on which medical assessors were engaged. The statements did not greatly elucidate what was required of a medical assessor in relation to conducting an examination of a claimant. 31 In this Court the respondent drew attention to cl 1.40 of the Permanent Impairment Guidelines 2005, part of the MAA Medical Guidelines issued under s 44 of the Act. The MAA Medical Guidelines have been characterised as delegated legislation (NRMA Insurance Ltd v Motor Accident Authority of New South Wales [2004] NSWSC 567; (2004) 61 NSWLR 264 at [26]-[28]; see also Zurich Australian Insurance Ltd v MAA [2006] NSWSC 845 at [28]; Ryan v Watkins [2005] NSWCA 426 at [134]; Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266 at [17]). 32 Section 65 provides that medical assessments are "subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment". The Permanent Impairment Guidelines say that they are issued under s 44(1)(c), and it is not entirely clear that they answer that description which appears referable to s 44(1)(d): however, cl 1.40 itself may do so. 33 Clause 1.40 provides - "1.40 Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities the inconsistencies should be brought to the claimant's attention, eg inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The claimant will then have to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness." 34 The status of cl 1.40, and the extent to which by reason of it or otherwise Dr Menogue should have drawn to the appellant's attention his clinical and surrounding observations, need not be decided. Subject to its submission that the observations in respect of which the appellant complained had not affected the medical assessment, the respondent accepted that there had been a "breach of procedural fairness" by Dr Menogue in referring in his reasons to the observations made of the appellant after the appellant left his surgery, without communicating his observations to the appellant or giving the appellant an opportunity to respond to them. Thus the respondent accepted that Dr Menogue was obliged to afford procedural fairness to the appellant in this respect, and it is not necessary to consider the observations made as the appellant entered and left the consulting room.

The April decision 35 The appellant's submissions in support of his application for referral again were relevantly critical of Dr Menogue's assessment on the grounds - "(2) The doctor ignored the contemporaneous evidence of injury to the left shoulder and does not consider important factual matters following the injury and which are contained in the claimant's statement concerning his left shoulder injury. Dr Menogue has determined that the left shoulder injury does not exist but it is referred pain from the cervical spine. The doctor brings into issue medical causation yet this cannot be substantiated on any of the evidence. This represents a clear attempt by Dr Menogue to deny an assessable impairment to the claimant. (3) Dr Menogue's assessment contains a statement that the assessments of Dr Manohar and Professor Murrell were generated by a Solicitor. Such statement is false and misleading and prejudicial to the claimant. (4) Page 7 of his report, the doctor states 'He appeared to swing his left arm freely whilst walking from the consultation room'. The doctor has not provided details of his definition of 'freely' or the degree of movement of such swinging despite the fact that he draws an adverse finding from this observation. This constitutes a breach of procedural fairness because the claimant cannot respond and does not know the nature of the allegation of inconsistency being made against him. (5) On page 8 of his report the doctor makes a statement that the claimant 'turned his head initially to the right presumably to farewell the interpreter and then turned his head freely to the left to see if there was oncoming traffic. He threw his X-rays into the passenger seat without any expression of discomfort'. Again the doctor does not indicate the degree of movement he observed, how far away the claimant was from him and whether in fact the doctor was able to determine at such a distance lack of pain, muscle guarding and asymmetry of movement, in accordance with the guides. The doctor draws extremely adverse inference [sic] against the claimant without providing particulars and uses this to find inconsistency and determine 0% whole person impairment. Again this is a clear breach of procedural fairness and constitutes improper behaviour on behalf of the MAS assessor. (6) The claimant relies upon his statement and in particular paragraph 7.23, 7.24, and 7.25 dealing with his assessment with Dr Menogue. (7) Taking into account the claimants [sic] statement and the nature of the report provided by Dr Menogue in its totality, it is submitted that the report cannot be relied upon and that the report does not represent a fair and transparent assessment of the claimants [sic] injuries and disabilities. The claimant is entitled to a fair assessment by a doctor that is charged with the very high duty to act in a fair and proper manner, without prejudice and bias. The report of Dr Menogue clearly breaches this duty to act as a fair assessor." 36 The submissions included clear complaint of denial of procedural fairness and, at least at a general level, clear enough complaint of actual bias. 37 In the reasons for his decision the claims assessor recorded the application "that I exercise my discretion under s 62(1)(b) of the Motor Accidents Compensation Act 1999 to refer this matter for further assessment of the Claimant's permanent impairment". He said that "for the reasons which follow", he declined the application. 38 The claims assessor identified four "grounds for review" from the appellant's submissions - "1. The preponderance of medical evidence ground. Dr Menogue's conclusion is inconsistent with the 'preponderance of medical evidence'.

The independent observations ground. Dr Menogue unfairly gave weight to his own observations as to the Claimant's restrictions when not being formally examined." 39 After setting out s 62 of the Act, the claims assessor observed that while a party may only apply for further assessment when there is evidence of deterioration or there is additional relevant information about the injury, a court or a claims assessor "appears to have an unfettered power to refer a matter for further assessment". He said that the discretion "must, in my view, be exercised with caution and in accordance with principle". He did not expand this discussion. 40 The claims assessor then said - " EXERCISE OF DISCRETION At the outset, I am concerned that the Claimant has applied for an order under s 62(1)(b) - that I exercise my discretion to refer the medical dispute for further assessment - in circumstances where the Claimant has not applied either for a review under s 63 or a further assessment under s 62(1)(a) himself. Whilst not a determining factor, in my view, the Claimant's failure to take advantage of the statutory remedies available to himself is one factor I may take into account in exercising my discretion. However, my primary reason for refusing the application is that I am not satisfied that a further assessment would result in the Claimant being assessed above 10% WPI. I come to this conclusion for the following reason [sic]. in respect of the 'preponderance of medical evidence ground', it is trite to state that a Medical Assessor is not required to make an assessment in accordance with the opinions expressed by other doctors who have examined the Claimant. A Medical Assessor is required to exercise his or her own clinical judgment in assessing the Claimant's permanent impairment. The fact that Dr Menogue may, or may not, have agreed with other doctors is irrelevant. in respect of the 'causation ground', the Claimant has failed to satisfy me that he would be assessed over 10% WPI, if a separate injury to the left shoulder were found. I note, in particular, that Professor Murrell opined on 31 July 2006 that the Claimant's left shoulder impairment should be assessed at 7% WPI. Similarly, Dr Matalani suggested 9% WPI. Even if the left shoulder injury were assessed by Dr Menogue, there is no evidence before me that the inclusion of the left shoulder impairment would have placed the Claimant over 10% WPI, noting that Dr Menogue found 0% for both the neck and back. in respect of the 'solicitor generated reports ground', I am not satisfied that Dr Menogue's comments were unfair or prejudicial to the Claimant. I have examined Dr Menogue's Statement of Reasons. Looking at the context, Dr Menogue was merely stating that the Claimant's GP had not referred the Claimant to any specialists for treatment since the assessment by Dr Gibson in December 2003. Even if he were wrong, I am not satisfied that any such mistake would have resulted in a change in Dr Menogue's assessment of WPI, particularly given that Dr Menogue accepted that deterioration had, in fact, taken place (see page 12). In respect of the 'independent observation ground', I am not satisfied that satisfaction of this ground would change the result of the assessment. Dr Menogue assessed the Claimant at 0% WPI in respect of the neck and back because - on clinical examination - he found no evidence of radiculopathy. I also note the general allegation of bias which has been advanced by the Claimant. I am not satisfied that I have the power to set aside a MAS Certificate on the grounds of procedural unfairness. Pursuant to s 61(4), only a Court may make such an order. CONCLUSION For the above reasons, I decline to grant the Application sought by the Claimant."

(a) Addressing the wrong question 43 The appellant submitted that the claims assessor had addressed himself to setting aside Dr Menogue's certificate on the ground of procedural unfairness, as appearing from the sentences "I am not satisfied that I have the power to set aside the MAS Certificate on the grounds of procedural unfairness. Pursuant to s 61(4), only a Court may make such an order", when that was not the application made to him. 44 It is correct that the claims assessor did not have power to set aside Dr Menogue's certificate on the ground of procedural unfairness. Under s 61(4) of the Act, a court could "reject" (not set aside) a certificate as to all or any of the matters certified in it on the grounds of denial of procedural fairness in connection with the issue of the certificate, if satisfied that admission of the certificate as to the matters concerned would cause substantial injustice to the party. That did not apply to a claims assessor, nor for that matter could a claims assessor otherwise set aside a certificate. 45 In my opinion, the claims assessor did not err in the manner suggested. At commencement of his reasons he expressly identified the application "that I exercise my discretion under s 62(1)(b) … to refer this matter for further assessment of the claimant's permanent impairment". He set out s 62 in terms, and spoke of the nature of the discretion. He gave his "primary reason" and sub-reasons for refusing the application. It can not reasonably be doubted that he addressed himself to the correct question of the exercise of his discretion to refer again for assessment pursuant to s 62(1)(b) of the Act. 46 The appellant submitted that the sentences in question were part of the "reasons which follow" and "the above reasons", and so must have been material to the claims assessor's decision. That is rather different from addressing the wrong question. However, when the claims assessor's reasoning is appreciated the sentences were not part of his disposition of the four "grounds for review", the disposition being found in the primary reason and its sub-reasons. The sentences may be explained as a supplementary putting aside of the suggestion in (7) of the appellant's submissions that Dr Menogue's "report" could not be relied upon; the claims assessor could not expunge it, although he could refer again whereupon the new certificate would prevail (s 62(2)) (but declined to do so). They were unnecessary to the reasoning, but the claims assessor's reasons "are meant to inform and not to be scrutinized upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ.

(b) Applying the wrong test for the consequences of denial of procedural fairness. 47 The appellant submitted that, having accepted or at least assumed denial of procedural fairness under the "independent observations ground", the claims assessor adopted the wrong test that he would not refer again for assessment unless satisfied "that satisfaction of this ground would change the result of the assessment". The appellant submitted that this was an unwarranted gloss on s 62(1)(b), and was also contrary to analogous application of the law as to the consequences of a denial of procedural fairness as found in Stead v State Government Insurance Commission (1986) 161 CLR 141. 48 The claims assessor did not place a gloss on s 62(1)(b). His exercise of the discretion conferred by s 61(1)(b) was primarily moulded by his view (expressed as lack of satisfaction) that a further assessment "would not result in the Claimant being assessed above 10% WPI". This view was repeated with respect to the "independent observation ground". Change in the result of the assessment was a relevant, and important, matter in the exercise of the discretion, but it was not treated by the claims assessor as the only relevant matter and exhaustive of the content of s 62(1)(b). It was a factor, in the claims assessor's view the primary factor, in exercising what he had described as an unfettered discretion, albeit one to be exercised "with caution and in accordance with principle". 49 In Stead v State Government Insurance Commission there can be found what Lindgren J described in Giretti v Commissioner of Taxation (1996) 70 FLR 151 at 164-5 as a forward-looking test and a backward-looking test. The question in Stead v State Government Insurance Commission was whether a new trial should be ordered when there had been a denial of the opportunity to make submissions. The forward-looking test (at 145) was whether a new trial would inevitably result in the making of the same order, so that ordering a new trial would be a futility. The backward-looking test (at 145-6) was whether it could be concluded that giving the opportunity to make submissions "could have made no possible difference to the result". 50 These principles have been applied to judicial review of the exercise of statutory powers conditioned by requirements of procedural fairness, for example in Abebe v The Commonwealth of Australia [1999] HCA 14; (1998) 197 CLR 510; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88. There may be additional considerations where fact-finding is not available to the court, limiting the ability to conclude that the denial of procedural fairness could have made no difference. The question in these cases is whether the exercise of a power by an administrative decision-maker should be set aside. 51 However, as the claims assessor recognised in the sentences earlier considered, he was not concerned with setting aside Dr Menogue's certificate. He was not concerned with review of the exercise by Dr Menogue of a statutory power, or with whether there should be a new trial. 52 The claims assessor was exercising the discretion conferred by s 62(1)(b) of the Act. Denial of procedural fairness in Dr Menogue's assessment was material to the exercise of his discretion. But it was not determinative of whether there should be referral again for assessment. It was open to the claims assessor to consider the correctness of the result; he could do so if the grounds for the application for referral again were that the existing medical assessment was factually or medically wrong or that the claimant's condition had changed, and equally if the ground was that the existing medical assessment was flawed by denial of procedural fairness. The claims assessor was a solicitor, and was not medically qualified, but the appellant accepted that it was within his functions, in determining an application under s 61(1)(b), to arrive at a conclusion as to permanent impairment. 53 In my opinion, the claims assessor was not confined to asking whether on assessment again the same medical assessment would inevitably have been made, or whether giving the appellant the opportunity to respond to Dr Menogue's observations could have made no possible difference to Dr Menogue's assessment. It was open to the claims assessor to conclude that, on a referral again for assessment, there would not be a different result, therefore (within his primary reason) he should decline to refer again for assessment. 54 It should be noted that the appellant did not submit that there was jurisdictional error because the claims assessor's view (expressed as lack of satisfaction) that a further assessment would not result in an assessment of permanent impairment over 10 per cent was arbitrary, capricious, or irrational: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.

(c) Failing to deal with the allegation of bias 55 The appellant submitted that the claims assessor had either regarded the "general allegation of bias" as going to procedural fairness and subsumed with the "independent observations ground", when it was a separate basis of complaint concerning Dr Menogue's assessment, or had failed to deal with it at all. 56 The respondent took issue with the merits of the bias allegation. It submitted that the description of the reports of Dr Manohar and Professor Murrell as "generated by a solicitor" was addressed by the claims assessor, correctly, under the "solicitor generated reports ground"; that Dr Menogue's comments in relation to Dr Sekel's report were an appropriate inquiry into what happened in the motor accident, a matter relevant to what injury was suffered in the motor accident, and that Dr Menogue accepted that the van had rolled over; and that the appellant's statement, and the bias complaint itself, were influenced by the appellant's disappointment and carried little weight. It said that the bias allegation could not possibly have succeeded. The question, however, is not whether there was merit in the bias allegation, but whether there was jurisdictional error in the claims assessor failing to deal with it. 57 In my opinion, there was not. The claims assessor stated and explained his "primary reason" which, with some contribution of the factor he earlier mentioned, let to him declining to grant the appellant's application. His reasoning led to that decision notwithstanding that he inferentially accepted, at least as an assumption, that there had been a denial of procedural fairness. On the same reasoning, his decision would have been the same had he accepted the "general allegation of bias". It was thus sufficient for him to note the allegation, perhaps to indicate that it had not been overlooked, and it was not necessary for him to enter upon the merits. On his reasoning, the allegation and its merits did not affect the decision.

5.2 A Medical Assessor should be transparent about their decisions and actions (including lack of action) taken in the performance of their assessment responsibilities'." 59 Continued reliance on actual bias and procedural unfairness was clear enough, and was evident also in a submission in reply in which it was contended that s 62 "provides an assessor with significant power to refer to the matter back for further assessment on the grounds of a legitimate reason and this can include procedural fairness grounds". 60 In his reasons for the September decision the claims assessor referred to "a second application that I direct a further assessment of the Claimant's permanent impairment pursuant to s 62(1)(b)". He said that "for the reasons set out below", he declined to make the direction. 61 The claims assessor set out "background", identifying the prior application, and saying - "4. In general terms, the primary reason I rejected the Claimant's Application was because I was not satisfied that a further assessment would result in the Claimant being assessed above 10% WPI. 5. In coming to this conclusion, I reasoned that: The fact that Dr Menogue may, or may not, have agreed with the assessments conducted by other doctors is irrelevant. Even if it were found - contrary to Dr Menogue's conclusion - that the Claimant's left shoulder injury were caused by the accident, Dr Menogue would still only have assessed the Claimant at 9% WPI given this finding of 0% WPI in respect of the Claimant's neck and back injuries. Dr Menogue's reasoning process was not compromised by his observation that certain reports were generated by solicitors, and Dr Menogue based his WPI assessment on the absence of evidence of radiculopathy rather than any observations he made of the Claimant outside his formal examination." 62 The claims assessor referred to the application for assessment again under s 62(1)(a) and its fate. He continued - " NATURE OF THE DISCRETION 11. As I observed in my April 2007 Reasons, s 62(1)(b) appears to provide a Claims Assessor with an unfettered power to refer a matter for further assessment.

(c) Applying a wrong test for referral again for assessment 72 The appellant submitted that the claims assessor misconstrued s 62(1)(b), in saying at [14] of the reasons that a further assessment should only be ordered where there was a risk of injustice if the existing assessment was not challenged, and in then saying at [16] that injustice only arose where there was a reasonable prospect that the further assessment would bring a different result as to entitlement to non-economic loss. He submitted that nothing in 62(1)(b) warranted restricting the exercise of the discretion in that manner, and that it was within a proper exercise of the discretion that, where a medical assessment was flawed by denial of procedural fairness, there should be referral again for assessment without necessity that the further assessment would be likely to bring a different result as to entitlement to economic loss. 73 In my opinion, this should be accepted. The respondent submitted that one should not "slice over-fine" the difference in the way the claims assessor expressed the reasons for the September decision. But the reasons are materially different in this respect from the reasons for the April decision, and I do not think the difference is over-fine. 74 The claims assessor's further exposition of the discretion, which he then applied, was not just statement of a relevant matter. It was an encompassing ascription of content to s 62(1)(b): in the cumulative effect of [14] and [16] of the reasons, a further assessment was only to be ordered if there was "reasonable prospect that the further assessment will result in a change in outcome vis-à-vis the claimant's entitlement to non-economic loss". 75 It is true that at [15] the claims assessor recognised a number of "kinds of injustice which may warrant an order for further assessment". They included procedural unfairness. But he then stated an overriding requirement in [16]. Even if there is procedural unfairness, a further assessment will only be ordered if there is a reasonable prospect of a different result as to entitlement to non-economic loss. 76 This is not correct. I have said in relation to the April decision that it was open to the claims assessor to conclude that there would not be a different result, and therefore he should decline to refer again for assessment. But the discretion is not such that a claims assessor must be satisfied that there would or might be a different result in order that there be referral again for assessment. 77 The discretion conferred by s 62(1)(b) has no constraints, and is thus limited only by "the scope and purpose of the instrument conferring it": Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758 per Dixon J. Referral again because there had been denial of procedural fairness in making the existing medical assessment, even without reasonable prospect of a different result, is well within it. 78 Procedural fairness, relevantly a reasonable opportunity to present or to meet a case, has long been given high importance in judicial decision-making. In Jones v National Coal Board (1957) 2 QB 55 it was said at 67 that "[t]here is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge". In Australian jurisprudence, see the oft-cited passage from the reasons of Mason J in Kioa v West (1985) 150 CLR 550 at 582 - "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council; Salemi (No 2); Ratu; Heatley v Tasman Racing and Gaving Commission; FAI Insurances Ltd v Winneke; Annamunthodo v Oilfields Workers' Trade Union . The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests." 79 The importance of an opportunity to present or meet a case lies in both the achievement of a just result and the appearance of achieving a just result. That importance, where procedural fairness is attracted, applies also to the administrative decision-making of a medical assessor. 80 As earlier noted, a medical assessment can be vital to a claimant's entitlement to damages. The objects of the Act, set out in s 5 and broadly speaking to provide timely resolution of claims at reasonable cost to the community, do not detract from them. Nor does the scheme for extra-curial assessments by medical assessors with its confining of the courts' role; on the contrary, procedural fairness in the exercise of their functions by the medical assessors is underlined by the roles they are given in the scheme. In the direction in s 6 of the Act that a person exercising a discretion "must do so in the way that would best promote the objects of the Act or of the provision concerned", the objects of the Act in referral again for assessment do not limit the claims assessor to the correctness of the result, but include that an important assessment has been made justly and can be seen to have been made justly. 81 It should not be forgotten that a claims assessor may not be medically qualified, as the claims assessor in the present case was not, and ill-equipped to decide the correctness of the result. That there has been denial of procedural fairness in making the existing medical assessment will often be a determinative factor in the exercise of the discretion. In my opinion, the claims assessor was in error in the September decision, in applying a test involving injustice only if there was a reasonable prospect that the further assessment would bring a different result as to entitlement to non-economic loss. He wrongly imposed necessity for that reasonable prospect.

The judge's decision 82 Patten AJ set out and acted upon s 62 as it stood from 1 October 2008. This no doubt a slip, and it did not make any difference to his decision. There were other errors in the decision. 83 The judge considered that Dr Menogue had not denied procedural fairness to the appellant because "it is quite unexceptional for an expert medical practitioner to make observations of the movement of an examinee after he has left the surgery in the same way that he observes the examinee in such acts as dressing and undressing while in the surgery" (at [40]). It does not appear that cl 1.40 of the Permanent Impairment Guidelines 2005 was drawn to his Honour's attention. The respondent did not seek to uphold that there had not been a denial of procedural fairness, at least as to the observations made of the appellant after he left the surgery. 84 The judge said, in relation to addressing the wrong question of setting aside Dr Menogue's certificate - "38. However, nobody was suggesting that the CARS Assessor should 'set aside' or 'reject' Dr Menogue's certificate. He was merely being asked to refer the matter for further medical assessment. In my view, he quite properly took into account, as a factor in exercising his discretion, his view that there had been no procedural unfairness." 85 As the respondent properly acknowledged, there was error in the third sentence of this paragraph. The claims assessor did not express the view that there had been no procedural unfairness. His reasoning accepted, at least as an assumption, that there had been a denial of procedural fairness. 86 The judge said of the allegation of bias, which he described as one of "perceived bias", that "it was entirely a matter for him whether the CARS Assessor regarded the question of bias as a matter which he should consider in exercising a discretion under s 62(1)(b) and his failure to advert to it does not constitute an error of law" (at [39]). He went on to say that in any event "no suggestion of perceived bias could arise from either [Dr Menogue's] expressed scepticism of the Plaintiff's version of the accident or his reference to assessment by Dr Manohar and Professor Murrell as generated by a solicitor with no expectation of management to follow". 87 This was not correct. The issue was the claims assessor's failure to deal with the allegation, not the merit of the allegation. The allegation was a matter relevant to the exercise of the discretion, and it was not for the claims assessor to have regard to it or not as he pleased. 88 The judge said of the "claim of unfairness arising from Dr Menogue's use of observations made of the Plaintiff outside his surgery" that the claims assessor "was, as a matter of discretion, entitled but not bound to have regard to this". Again, it was a matter relevant to the exercise of the discretion, and it was not for the claims assessor to have regard to it or not as he pleased. The respondent submitted that his Honour should be understood as referring to the influence of the claim of unfairness in the exercise of the discretion. This could be supported by the statement in the next sentence that the claims assessor "obviously regarded it as of little moment", but I have difficulty in so understanding the reasons. It is not necessary to decide. 89 It does not appear that it was submitted to the judge that, in relation to the September decision, the claims assessor had applied the wrong test for referral again for assessment. His Honour did not deal with that matter.

Order the third respondent to pay the appellant's costs of the proceedings before Patten AJ and on appeal. 97 YOUNG JA: I agree with Handley AJA. 98 HANDLEY AJA: In this appeal I have had the benefit of reading the reasons for judgment of Giles JA in draft. I agree with and respectfully adopt his reasons in paras [1]-[71]. However I have the misfortune to differ from his conclusions in paras [72]-[81]. 99 In his decision of 24 September 2008 the claims assessor, having noted that he was dealing with a second application, set out the relevant history. He then considered the nature of his discretion under s 62(1)(b) of the Act. He said [11] that the discretion was unfettered but [12] "it must only be exercised where there are good reasons so to do." He then said [14] that any further assessment should only be ordered "where it would be unjust not to do so", that is "only where … there is a risk that an injustice will [otherwise] be visited on one of the parties". 100 Thus far I detect no error in the assessor's approach. He concluded [15] saying that "the kind of injustice which may warrant an order for further assessment" may include "further relevant information, evidence of deterioration, evidence of material error … or procedural unfairness." His list was not exhaustive. He concluded [16] by saying that injustice only arises where there is a reasonable prospect that the further assessment would meet the 10% of WPI threshold for an award for non-economic loss. This is where Giles JA identified error. 101 In my opinion there are two questions for consideration. The first is whether there was an error, the second is whether it was material. 102 The assessor considered the exercise of his discretion in [17]-[24] of his reasons. His analysis in these paragraphs cover matters other than the prospect that a further assessment would entitle the claimant to an award for non-economic loss. 103 He noted [18] that there had only been three developments since his decision in April 2008. The claimant's unsuccessful application to the Proper Officer for a further assessment and reliance for the first time on a report of Dr Matalani of 20 September 2007. 104 The assessor reviewed the reasons of the Proper Officer, said that he saw no error, and confirmed [22] his reasons of April 2008. These included his finding that Dr Menogue's assessment was based on the absence of evidence of radiculopathy, and was not compromised by his observations of the claimant outside the formal examination process. Any denial of procedural fairness had not affected the result. He concluded: "I am not satisfied that there is anything about Dr Menogue's assessment which gives rise to a risk of injustice to the claimant." 105 He then considered [23] Dr Matalani's report but was "not satisfied that there is any risk of injustice to the claimant" from the fact that this doctor had come to a different conclusion from that reached by Dr Menogue. He found [24] that there was no significant difference in the findings of the two doctors on examination. The difference between them was the result of different applications of the Medical Assessment Guidelines. The applicant has not attempted to demonstrate that Dr Menogue's assessment was vitiated by a legally erroneous application of the Guidelines. 106 The assessor concluded [24] that Dr Matalani's opinion was not a sufficient reason for a further assessment. 107 Giles JA has found no error in the assessor's reasons for his decision in April 2008 or in his finding that nothing had occurred since which justified a new assessment. 108 In my respectful opinion these conclusions demonstrate that the September decision was not vitiated by legal error. 109 The assessor said [14] that a further assessment should "only" be ordered where "there is a risk of injustice" and [16] this only arose where there is a reasonable prospect that a new assessment would put the claimant over the 10% threshold. However he also said [12] that the discretion "only be exercised where there are good grounds". 110 The assessor's finding that the developments since April 2008 did not establish grounds for ordering a further assessment was an independent ground for his decision which could not be challenged. Any error, if such there was, in his approach to the risk of injustice was therefore immaterial. As Moffitt P said in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 419: "… it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error … It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law." 111 In any event I am unable, with respect, to discern any error in the assessor's view that there was no risk of injustice to the claimant unless there was "a reasonable prospect that the further assessment will result in a change in outcome". 112 This test is not materially different from that applied in Stead v State Government Insurance Commission [1986] HCA 54, 161 CLR 141, 145-7. The High Court considered [at 145] that submissions by counsel for the plaintiff at the trial on the acceptability of a doctor's medico-legal opinion may have made a difference to the result (the first test) and therefore the Court could not find that a properly conducted trial could not possibly produce a different result (the second test). 113 The assessor's finding that the denial of procedural fairness had not affected Dr Menogue's result satisfied the first test in Stead's case. 114 The statutory scheme substitutes expert medical assessment for non expert assessment by a Judge. Litigants are apt to be disappointed by such assessments however made. The long established position with judicial assessments was summarised in Burrell v The Queen [2008] HCA 34, 238 CLR 218, 223 [15] where the Court said in the joint judgment of five judges: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." 115 In my judgment this principle is relevant to the exercise by a claims assessor of his discretion to order a further assessment. The same principle is relevant in the exercise of this Court's discretion to order a new trial. UCPR Pt 51.53(1) provides that the Court must not order a new trial "unless it appears … that some substantial wrong or miscarriage has been occasioned" by the error in the first trial. 116 This test does not differ in substance from that applied by the assessor when considering the risk of injustice to the claimant if a further assessment was not ordered. 117 In my judgment therefore the assessor's reasons for his September 2008 decision were correct, and in any event the error relied on was immaterial. Leave to appeal should be granted, the Court should dispense with the filing of the notice of appeal, but the appeal should be dismissed with costs. **********

Trazivuk v Motor Accidents Authority of New South Wales & Ors

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