Willis v TAC [2001] VCAT 1455

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1. The Applicant suffered injuries as a result of a transport accident on 19 September 1994. On 15 October 1997 the Respondent determined the Applicant's level of impairment at 21% and by application for review filed with the Tribunal on 7 April 1998 it was sought to review that decision.

2. The hearing of the Application for Review commenced before Senior Member Preuss on 15 May 2000. From Reasons For Decisions as to Costs issued by Senior Member Preuss on 14 July 2000 it appears that the application for review commenced before her on 15 May 2000 and the major issue for determination was the degree of the Applicant's whole person impairment. Ms Preuss stated that a significant area of dispute between the parties concerned the extent to which the Applicant's psychiatric impairment was caused by the transport accident and on the fourth day of the hearing before her Counsel for the Applicant indicated that the Applicant wished to withdraw from the proceedings. Counsel stated that the Applicant's reasons for withdrawal were stress and other matters set out in the Reasons for Decision.

3. Ms Preuss ordered the Applicant to pay the Respondent's costs from 5 October 1999, the date of an Offer of Compromise made by the Respondent.

4. In a letter dated 9 August 2000 to the Respondent, the Solicitors for the Applicant sought reimbursement of the cost of various medical reports previously served upon the Respondent. The amount claimed in respect of these reports totalled $8,188.25. By letter dated 22 September 2000, the Respondent informed the Applicant's Solicitors they were not prepared to recommend payment of the cost of reports which "we consider were obtained in respect of the appeal". The letter went on to say that the Respondent was prepared to pay for certain reports pursuant to Section 60 of the Transport and Accident Act 1986 ("the Act") totalling $2,140, but would not pay for the cost of other reports totalling $6,048.25.

5. On 6 December 2000 the Solicitor for the Applicant filed with the Tribunal a Notice of Application for Review of the rejection by the Respondent of the Applicant's claim for these medical report expenses. The reports in dispute are dated between 22 July 1998 and 5 May 2000.

6. When the matter came on for hearing Mr Gorton, appearing on behalf of the applicant indicated that the Respondent had conceded that the Tribunal had jurisdiction in the matter as the Respondent had made a decision refusing liability for payment of the costs of the relevant reports on the basis that the same were not the reasonable costs of medical services for which the Respondent was liable under Section 60 of the Transport and Accident Act 1986.

7. It was submitted by Mr Solomon on behalf of the Respondent that refusal to make payment of the costs of reports was reasonable as the reports served no proper purpose as a result of false histories given to a number of examining medical practitioners by the applicant. This assertion was supported by various comments made by Senior Member Preuss in her Reasons supporting her costs decision. The following are some of the comments made by her:-

"I also formed the view that, in seeking to blame the transport accident for her psychiatric problems, the Applicant was less than frank in her evidence before the Tribunal and in the history she provided to a number of Doctors who examined her for the purpose of these proceedings.

The Applicant also failed to reveal in her Statement of Evidence that she had significant matrimonial problems over several years,

These problems were relevant in assessing the cause of her psychiatric impairment

Not only did she fail to reveal in her statements the details of her matrimonial problems and their psychological effect on her but she indicated in her statement of 4 February 2000 that her pain and depression arising from the transport accident a cause of the separation from her husband in 1996.

In my view, it was incumbent on the Applicant to reveal details of her marital problems in circumstances where she sought to blame the transport accident for the separation from her husband.

The Applicant provided incorrect histories to Psychiatrists who examined her for the purpose of making a psychiatric impairment assessment in these proceedings.

I have little doubt that the Applicant understood that the psychiatrists were examining her for the purpose of making an assessment of her psychiatric impairment arising from the transport accident and the extent to which her impairment was caused by the transport accident. In such circumstances, it was imperative that the Applicant provide to the Psychiatrist full details of her history particularly her long standing and serious marital problems.

8. Mr Gorton on behalf of the Applicant conceded that the reference in Section 60(1)(a) of the Act to "the reasonable costs ...." Is a reference to the reasonableness of the cost itself but conceded that if a medical report was unreasonably obtained it should not be paid. He asserted however that the reports were reasonably obtained in order to enable the Application for Review to be brought before the Tribunal, and, after having considered the submissions made by the parties the Tribunal is prepared to give the Applicant the benefit of the doubt and conclude that some of the medical reports in dispute were "reasonably" obtained for the purpose of the Tribunal hearing which commenced before Senior Member Preuss on 15 May 2000 and that the Respondent is therefore liable for payment of same.

9. Senior Member Preuss ordered that the Applicant should pay the Respondent's costs from 5 October 1999 the date on which an Offer of Compromise was made by the Respondent, and this Division of the Tribunal will make an Order to the effect that the Respondent is liable to pay as compensation to the Applicant the cost of the medical reports which are dated prior to 5 October 1999.

10. The issue of costs was not raised during the hearing and costs will be reserved.