Zurich Australian Insurance Limited v Mestric

Supreme Court of NSW|2015-07-17|Before: Adams J

Solicitors: Vardanega Roberts (plaintiff) Stacks Gouldkamp (first defendant) Crown Solicitor for NSW - submitting appearance (second and third defendants) File Number(s): 2015/5796

Introduction

Ms Natali Mestric claimed damages from Zurich Australian Insurance Limited under the Motor Accidents Compensation Act 1999 (NSW) for injuries suffered by her as a result of a motor car accident on 5 August 2008. There was a dispute as to the extent of her permanent impairment, so the matter was referred to the Motor Accidents Authority of New South Wales for medical assessment. The latest assessment of Ms Mestric's injuries was that of Dr Fearnside who saw her on 24 May 2013 and issued a certificate with reasons on 4 June 2013 concluding that injuries claimed to have been suffered by Ms Mestric in respect of her neck and left leg were not caused by the accident. The primary basis for this conclusion was the "lack of contemporaneous evidence for a neck injury". At Ms Mestric's request, Mr John Turnbull, a claims assessor, considered whether the matter should be referred back to the Medical Assessment Service for reassessment. Mr Turnbull decided that Ms Mestric had not been afforded procedural fairness and that the matter should be referred for reassessment. The insurer, Zurich Australian Insurance Limited, commenced proceedings in this Court for prerogative relief on the basis that Mr Turnbull's decision was affected by a jurisdictional error and/or errors of law on the face of the record. The Motor Accidents Authority and Mr Turnbull, who were joined respectively as second and third defendants, have filed submitting appearances.

The assessments

The first assessment of Ms Mestric's claim was made by Dr Lethlean on 30 September 2011 concerning injuries suffered to her neck and left leg. Dr Lethlean found that these injuries were caused by the motor vehicle accident and assessed whole person impairment in relation to her neck at 15 per cent and, in relation to her left leg, that she had spinal shock following surgery to her neck. There was an injury to her left arm related to the neck injury, which he assessed at 45 per cent. On 24 May 2013 the claimant was assessed by Dr Fearnside, who concluded, as I have mentioned, that none of these injuries related to the car accident. With the request for reassessment under s 62(1)(b), Ms Mestric provided statements from three lay witnesses setting set out complaints made to them by her of injuries to her neck at around the time of the accident. Of course, Dr Fearnside was unaware of this material.
The history taken by Dr Fearnside was briefly as follows. The accident occurred on 5 August 2008 when the rear of Ms Mestric's car was struck whilst stationary at a red light. It was pushed into the car in front. Ms Mestric was thrown forward and upward, hitting her head on the roof. She experienced an immediate severe headache but had no clear recollection of ensuing events even though there was no loss of consciousness. She was taken to Concord Hospital by ambulance and was discharged without treatment after a period of observation, being driven home by her ex-husband. She could not recall whether she saw her general practitioner (Dr Wong) between August and October 2008. Ms Mestric did not clearly recall when her neck pain commenced but, between August and December 2008, she had increasing neck pain and said she mentioned this to the physiotherapist who was treating her for pain in her right wrist and paraesthesia. She said that the physiotherapist told her it was likely to be referred pain from her hand. However, no note was made of her neck complaint or the explanation. Ms Mestric thought this omission may have resulted from confusion due to treatment for the right wrist. He dismissed the notion that a qualified physiotherapist would confuse a condition affecting the wrist and a condition affecting the neck, which seemed to be implied by Ms Mestric's account of what she was told. (It follows, I interpolate, that Dr Fearnside had brought to Ms Mestric's attention the fact that the physiotherapist had not noted a complaint of neck pain). Ms Mestric said that, during January and February 2009, her neck pain became progressively more severe, and on 13 February 2009, she awoke with considerable pain down her left arm to the hand. She did not recall whether sensation was impaired. There had been little in the way of arm pain during the preceding two months but she had noted increasing weakness in her left hand and a tendency to drop items. Following the exacerbation on 13 February 2009 she saw her general practitioner, Dr Wong, who sent her for an MRI scan of the cervical spine and she was certified unfit for work. Ms Mestric saw the specialist, Dr Parkinson, on 26 March 2009 and was admitted for surgery two days later. Post-operatively, as she recovered from the anaesthesia she could not move her left arm or leg and there was a left sided hemianesthesia with sensory loss in her face, arm, trunk and leg. She was able to move and feel her right arm and leg. Her wound was re-explored and she was discharged from hospital 13 days later. Since the operation and continuing rehabilitation there had been some improvement in function and sensation in the left arm and leg but she continued to experience neck pain, intermittent left brachialgia, impaired fine movements, inability to lift even light objects with her left hand, with some weakness in her right arm and hand likely from overuse. She also had problems with her left leg.
On examination, Dr Fearnside detected no conscious inconsistencies but some physical signs were elicited which were not anatomically explicable. He thought there was no indication of manufacture or exaggeration. He then reviewed the documentation and mentioned the following complaints of neck pain which had been noted. The first was a medical report from Dr Wong dated 21 August 2009 stating that she was "complaining of neck pain at the scene of the accident", as to which Dr Fearnside noted that it was "not confirmed by reviewing the ambulance report". Dr Wong noted her complaint that she experienced more neck pain, in substance, during physiotherapy and referred to the deterioration in February 2009. Dr Fearnside noted that Dr Lethlean had referred to an "initial head injury and possibly cervical injury are recorded" but this was without the benefit of ambulance and hospital notes. Dr Parkinson had recorded a history of Ms Mestric having "'severe whiplash and neck pain' associated with the history of a motor vehicle accident" which, however, he dated as at early 2009. The ambulance records noted Ms Mestric as alert and oriented at the scene, complaining of pain in the parietal region of her head but denying loss of consciousness and neck pain. The clinical record from Concord Hospital confirmed a hit to the head and applied a cervical collar, Dr Fearnside presumed "as a precaution". The clinical record stated "nil C spine or rest of spine tenderness". There was no expression of concern about her neck whilst she was under observation before discharge. The clinical records of Dr Wong contained an entry for 5 August 2008, "MVE - compression and whiplash injury", but this was, in effect, dismissed as significant by Dr Fearnside, who observed that Ms Mestric said that she had not seen the doctor on that date. He referred to further entries on 1 and 15 October, 14 November and 18 December, this last being the first note (aside from that of 5 August 2008) of neck pain, which Ms Mestric said that she had suffered at work, and stating "? pain from brachial plexus needs physiotherapy for neck strain". Ms Mestric could not recall for Dr Fearnside the symptoms she was then experiencing with regard to the brachial plexus. There were further visits noted on 29 January 2009, 13 and 15 February 2009, with a referral of the 29 January 2009 to a specialist for "review of persistent tenosynovitis of R wrist" with no mention of neck symptoms. On 18 February 2009 she went to see the doctor as previously described when she had serious pain in her neck. Dr Fearnside noted that Ms Mestric had been treated by a physiotherapist on 24 and 30 December 2008 and 15 January 2009 with no record of any problem with her neck. On 23 January 2009 there was an entry "'bad neck' worse as the week progressed", reporting arm and shoulder pains on 3 and 6 February 2009 with neck and left arm pain on 7 February 2009 whilst, on 16 February 2009, she had what Dr Fearnside thought "sounded like significant left brachialgia". Dr Fearnside then dealt with various other reports, one by Dr Cummine in August 2012 expressing the conclusion that "the motor vehicle accident was, at worst, a temporary aggravating factor of the underlying pre-existing foraminal stenosis at C5/6", his examination of the records with which he was provided showing that "the subject motor vehicle accident was not causally related to a neck injury". Dr Fearnside noted also the report of Dr Dalton, a consultant rehabilitation physician of 26 April 2012, who found, "no evidence to support the suggestion that Mrs Mestric's C5/6 pathology and the associated foraminal stenosis and subsequent cervical radiculopathy is in any way casually related to … the subject motor vehicle accident".
Dr Fearnside then considered Ms Mestric's statement of 20 January 2010, which he went through with her - "She confirmed that she experienced headaches on the day of the accident and the following day, 6/8/08 but that these settled over the next few days. She says that on 18/12/08 she attended Dr Wong with pain in her neck and says that this was 'over the past four months' although this is not supported by Dr Wong's clinical records. On 13/2/09 she woke with severe pain in her neck and left brachialgia which resulted in the referral to Dr Richard Parkinson at the subsequent surgery."
The crucial passage presently under debate is - "Review of the ambulance record, the clinical records from Concord Hospital, the treating physiotherapist's notes and Dr Wong's clinical record do not persuade me that there was any complaint of neck injury before at least December 2008, four months after the motor vehicle accident. I agree with Anna Lee that when a patient sustains an injury to the neck there are symptoms generally within 48 hours but certainly within 72 hours of neck pain or stiffness. It would be anticipated that, had the C5/6 disc/osteophyte complex been aggravated by the subject accident, symptoms of a brachial radiculopathy would have occurred within six or at the most eight weeks more likely, 3-4 weeks at most. I have accepted that there may have been some confounding of the treatment because of the problem with her right hand but there is no indication in the physiotherapist's notes that there was any problem with her neck and I agree with Anna Lee that a physiotherapist would be alert to any symptoms of neck disorder even when treating a right forearm and hand. With regard to causation, the MAA Impairment Guidelines discuss this at paragraphs 1.8 and 1.9 (page 2). The Guides say: 'The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible'. It is more my opinion that if there is any contribution to the C5/6 disorder, it is negligible because it would have become symptomatic earlier than January-February 2009, some five or six months after the subject accident. There is no contemporaneous evidence that there were any symptoms referable to her neck or left arm following the motor vehicle accident in 2008 which could be considered to be caused by an injury which was more than negligible. I have also carefully considered the reports from Dr John Cummine and Dr Seamus Dalton and I tend to agree with their conclusions as to causation because of the lack of contemporaneous evidence for a neck injury."

Additional statements

In her application for a fresh assessment, Ms Mestric relied on the statements of Belinda Mestric, her elder sister and Mr Sebu Bahadouran, who married Ms Mestric in 1992. They separated in 2000 and divorced in 2003 but, despite their separation, the two "had remained very good friends". A statement was also obtained from Ms Denise Belfield, who worked as a locum manager based in Manly Hospital, responsible for employing her in 2001. She was Ms Mestric's manager at the Queenscliff Health Centre from 2003 to the end of 2012. She said that, on 6 August 2008, Ms Mestric told her that she had been involved in a motor vehicle accident on 5 August 2008 and complained of a stiff neck and a very bad headache. Belinda said that, on the day of her sister's accident, she received a call from their mother telling her about it and that she had been taken to hospital. Belinda visited Ms Mestric within a few days to check up on her and was told that a taxi had rear-ended her car and she forcefully hit the top of her head on the roof. She complained of a very bad headache and that her neck was feeling "achy". As the months progressed, Belinda said that her sister complained that she felt her symptoms in her arm as well as her neck pain were worsening. Mr Bahadouran said that, after their separation, he and Ms Mestric were in weekly contact; he managed a hairdressing salon and was Ms Mestric's regular hairdresser for many years. He recalled that, in early August 2008, Ms Mestric telephoned and told him that she was involved in a motor vehicle accident a day or so earlier, she was very upset and shaken over the phone. About two weeks later she came in for a hair appointment. He remembered her telling him, as he lowered her head over the basin to shampoo and condition her hair, that he neck was sore and stiff.

Reassessment

I now come to the decision of Mr Turnbull. After giving a brief history of the matter, he noted the three witness statements which set out the complaints made by Ms Mestric of injuries to her neck at about the time of the motor vehicle accident. He noted that it was submitted on Ms Mestric's behalf that there had been a denial of procedural fairness and a failure to comply with clause 1.43 by Dr Fearnside dismissing Ms Mestric's assertion in her statement of 20 January 2010 about suffering neck pain shortly after the accident because it was inconsistent with the absence of mention of any neck complaint in the clinical records without bringing that apparent contradiction distinctly to her attention so she could respond. The statements showed that Ms Mestric had made reasonably contemporaneous complaints about her neck being stiff and sore. In substance, Zurich submitted that Ms Mestric had a reasonable opportunity to present her case to Dr Fearnside and there was no procedural unfairness. She had not claimed that he failed to ask her about her symptoms or listen to her history or give her an opportunity to elaborate on her statement. Furthermore, she must have known that Zurich disputed her claim and she would not have been taken by surprise.
Ultimately, Mr Turnbull fairly noted that Zurich's submissions were to the effect that Ms Mestric had been afforded procedural fairness by Dr Fearnside, the crux of the complaint not being that Dr Fearnside did not ask her about her symptoms or did not listen to her history; rather, that he did not put to her that what she was saying was inconsistent with the silence about any neck complaints in the medical material available to him so that she could respond. That Zurich disputed her claim was not to the point; this was that, one way or another, Dr Fearnside should have obtained from her information as to any contemporaneous complaints. (I interpolate, of course, this could be done in a way that did not suggest answers).
Mr Turnbull noted, in his conclusion, that it was unfortunate that the three statements had not been given to Dr Fearnside but that, in the end, this "did not particularly sway" him. He added - "[36] What I am most concerned about is the failure of Assessor Fearnside to bring to the Claimant's attention the lack of record of any complaint of neck problems contemporaneous with the accident. It is possible, although I do not know that the assessor may have simply assumed the correctness of the assumptions put to the Insurer's medical experts. [37] In my opinion that failure by the Assessor constitutes procedural unfairness and a failure to comply with Clause 1.43. In my view the Claimant ought to have been offered the opportunity to specifically address Assessor Fearnside's concerns, particularly where his decision seemed to be, in large part, based upon that lack of history. His decision was not that she had a whole person impairment of less than 10% but, as I have noted, was that no injury was related to the motor vehicle accident. [38] For those reasons I believe that there has been procedural unfairness and a failure to comply with Guidelines and I propose to refer the matter back to the Medical Assessment Service pursuant to s.62(1)(b) of the Motor Accidents Compensation Act."

Submissions

It was submitted by Mr Robinson SC on behalf of Zurich that there were errors on the face of the record, identifying both Mr Turnbull's finding that Dr Fearnside failed to bring to Ms Mestric's attention the lack of a record of any complaint of neck problems contemporaneous with the accident and his conclusion that there was a failure to comply with clause 1.43. Mr Robinson also submits that, although Mr Turnbull recited Zurich's submissions, he did not analyse or weigh up the merits of the factors which Zurich identified as relevant. Thus, he did not in terms refer to the objects of the Act which imposed the duty "to deal with the matter 'quickly, fairly and as cost effectively as is practicable'" (per Rothman J in NRMA Insurance Limited v Ainsworth [2011] NSWSC 344; 58 MVR 187 at [30]-[32]). It is submitted that Mr Turnbull should have taken into account the fact that the application was made 18 months after Dr Fearnside's certificate without any explanation for the late provision of the other evidence relied on, had not utilised other statutory remedies in relation to the claimed errors, the claim that the insurer had been unfairly prejudiced by the delay, the fact that there was no dispute about Dr Fearnside's note that Ms Mestric had not complained about neck symptoms to medical practitioners and physiotherapists in 2008 and could not recall precisely when she developed neck symptoms in 2008, that she did not actually provide a statement stating that she was not invited to respond to the contents of the contemporaneous medical records and, lastly, Zurich's claim that a further assessment was likely to have the same result where the additional information did not contradict the fact that Ms Mestric had not complained about neck pain and brachial radicular pain to treating doctors and physiotherapists for some four months after the accident when there was every reason for her to have done so.
It is also submitted that clause 1.43 did not apply in the circumstances, as it is limited to giving an opportunity to a claimant to respond to what are said to be inconsistencies between clinical findings, that is, those made following the examination of the claimant, and observations made and recorded outside of a clinical setting. (I note that this does not accurately quote the paragraph, which refers to inconsistencies between clinical findings and information obtained through medical records on the one hand and/or observations of non-clinical activities on the other. Furthermore, the purpose of the paragraph is said to provide "an opportunity to confirm the history and/or respond to the inconsistent observations"). It is submitted that clause 1.43 did not therefore deal with the issue raised on Ms Mestric's behalf which, in substance, was that Dr Fearnside perceived an inconsistency between the omission of any information suggesting a more or less contemporaneous complaint of neck pain and the claim that the neck pain, which was the subject of the claim, had been caused by the accident.
It was submitted that Mr Turnbull's finding of procedural unfairness resulted from an unduly rigorous and mistaken examination of Dr Fearnside's statement of reasons. It was submitted that they were and should not have been subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument" (citing Allianz Australia Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 1096 at [36] per Sully J). In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 291 Kirby J said (citations omitted) - "The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law" The cases dealing with administrative review are replete with observations of this kind and do not need to be repeated. It is plain that one must take a fair approach and avoid nice distinctions, aware that sometimes language is used imprecisely. Of course, this applies as much to Mr Turnbull's reasons as to Dr Fearnside's.
Mr Robinson also submitted that, since Dr Fearnside's reasons showed that he gave "the claimant the opportunity to comment about the contents of contemporaneous medical records" he had for the period between August 2008 and December 2008 and it was "plainly wrong" for Mr Turnbull to conclude that he "[failed] to bring to the claimant's attention the lack of record of any complaint of neck problems contemporaneously with the accident". Much was made by Mr Robinson of Dr Fearnside's note that, in respect of Dr Wong's entry of 5 August 2008 ("MVE - compression and whiplash injury"), the claimant said "she did not see Dr Wong on the date of the accident" and his pointing out to her of the lack of any mention in the physiotherapist's note of a neck complaint as demonstrating that he took her through the clinical records. (I interpolate, however, that Dr Fearnside's reasons do not disclose that he brought Dr Wong's note to Ms Mestric's attention and rather implies that he did not do so. Nor does it follow from the fact that Ms Mestric had not seen Dr Wong on 5 August that he had not received the information from her, directly or indirectly. Dr Wong would have been well aware of the significance of dating a complaint of symptoms, the notes are in chronological order and the next is dated 1 October. At this time, also, the issue of neck pain could not have been seen as controversial. Backdating seems most unlikely, which leaves a misdating sometime before 1 October as the more likely explanation. On the face of it, Dr Wong's note was precisely a record of neck complaint that Dr Fearnside said did not exist.)
The submissions made by Mr Rewell SC on behalf of Ms Mestric pointed out that Zurich did not itself raise the issue of causation until 9 January 2013 (well over one year after the first MAS certificate was issued), that Ms Mestric's former solicitors had no reason until then to investigate the issue of causation and, although her new solicitors had carriage of the matter from August 2013 and there was some delay in lodging the application, it had not been anticipated that obtaining the report of Dr Parkinson would take as long as it did. The fact that Ms Mestric had not utilised other statutory remedies is immaterial. Whatever those remedies might have been, they would not have given the same kind of review as that under s 62(1)(b). It was not and could not be suggested that the application under that provision was inappropriate. Furthermore, although Dr Fearnside concluded otherwise, Ms Mestric told him (as he noted) that she made a complaint to the physiotherapist, as I have explained. The concession that she could not recall precisely when she developed neck symptoms in 2008 could scarcely be decisive. As to Ms Mestric not providing a statement to Mr Turnbull that she was not invited to respond to the contents of the medical records, Zurich's reliance on what was described as a "similar point" made by Leeming JA in Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [18] affords it no assistance. Leeming JA had cited, as an example of the approach of the review panel to accounts placed on various internet sites by the claimant apparently inconsistent with her claimed symptoms, the fact that those accounts were put to her and her explanation, in substance, was that what she had said in them was delusional. The comment of Leeming JA, that there was no complaint that she was not confronted with contradictory material was not a suggestion that this was relevant, but a characterisation of the case put on the claimant's behalf. Here, there could be no doubt that the complaint was made to Mr Turnbull and the fact that Ms Mestric did not disclose what would have been her answers had she been asked, though interesting, could not be decisive. It is fair, nevertheless, to infer that she would at least have provided the information which was the subject of the additional statements. Mr Turnbull had dealt with delay by stating that an assessor would be able to deal with that issue, so it was not the case that he ignored the question. Accepting that Zurich had served reports in June 2012, which had raised the issue of causation, as Mr Turnbull noted, these reports may have been based on the assumption put to them by Zurich that she had not made a timely complaint of neck or radicular symptoms.
It was submitted by Mr Rewell that, although it may be true that, in the ultimate, no different result might occur, that is scarcely material in face of a finding that procedural fairness on the very point in issue was not afforded. In Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 Giles JA said (on this point, Young JA and Handley AJA agreeing) - "[53] In my opinion, the claims assessor [in determining an application under s 62(1)(b)] 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 … [the medical assessor's impugned] observations could have made no possible difference to … [his] 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." And later - "[76] … 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. [Emphasis original.] [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. … [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. … [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 … [particular] 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." [Emphasis original.]
However, Handley AJA (with whom Young JA agreed) did not accept Giles JA's statements about the relationship between a denial of procedural fairness and the possibility of a different outcome. The claims assessor had considered the nature of the discretion reposed in him under s 62(1)(b) of the Act, stating that the discretion was unfettered but "it must only be exercised where there a good reasons to do so", adding 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". Handley AJA said (at [100]) that this did not demonstrate any error in the assessor's approach. In the particular circumstances, the assessment was based on the absence of particular evidence which was not compromised by his observations of the claimant outside the formal examination process - about which he had not informed the claimant, constituting the complaint of a denial of natural justice. Handley AJA concluded (at [104]) that it followed that any denial of procedural fairness had not affected the result.
At all events, as Mr Rewell pointed out, Mr Turnbull did consider the possible outcome of a further assessment. He referred to the findings of Dr Lethlean, in effect, that Ms Mestric had a very significant injury related to the subject accident and that this showed, at least, that it is possible that on the available evidence the outcome might be different. He noted that Dr Lethlean also had not questioned Ms Mestric about the apparent lack of complaint in relation to her neck as disclosed in the hospital notes or those of the general practitioner. He thought there might "be a reason why she did not mention it that is not consistent with her having no problems in her neck". It follows that he concluded, in effect, that a further assessment might differ from that of Dr Fearnside.
It is also submitted on Ms Mestric's behalf that, on any fair reading of Dr Fearnside's reasons, he may well not have given sufficient or indeed any notice to Ms Mestric that the lack of contemporaneous evidence of complaints of neck pain was or might be significant, let alone decisive. Merely to go through the medical material without noting what was absent could not alert her to the possible significance of the omission. Furthermore, it is evident from Dr Fearnside's report that he assumed that the statements made available to him were all the statements that needed to be considered on this issue and the possibility that Ms Mestric may have made mention of the neck issue in the crucially early period to others but this had not been gathered did not occur to him. Nevertheless, it is a rather obvious possibility and it was reasonable, at least, for Mr Turnbull to regard the absence of any enquiry that might have produced that information as having resulted in unfairness. It was submitted by Mr Rewell that it was not strictly necessary for Mr Turnbull to find that there had been a breach of procedural fairness or that there was breach of clause 1.43.

Consideration

As Mr Robinson conceded, Mr Turnbull adequately recited Zurich's submissions. It is clear that he concluded, nevertheless, that the failure to accord procedural fairness was so serious as to justify reassessment. This is made clear, to my mind, by the statement that it was what "most concerned" him. The mere fact that he did not discuss some matters relied on by Zurich does not mean that they were not considered. In my view, Mr Turnbull should be understood as having decided that they did not outweigh the prejudice to the integrity of the process constituted by the unfairness he identified, in short that an injustice to Ms Mestric had occurred. He specifically took up the issue of prejudice caused by the lateness of the statements, concluding "the Assessor … [would be] able to deal with that issue, particularly as submissions would be made in regards to it by ... [the] Insurer". He also referred to Zurich's argument that Ms Mestric did not submit that Dr Fearnside did not ask her about symptoms or did not listen to her history, observing (rightly) that this was beside the point, and to the argument that she was well aware that the Insurer disputed her claim and there was only an obligation to make known a potential adverse conclusion that would not be obviously open on the known material, observing that the adverse finding depended on the lack of mention of a contemporaneous complaint in the early medical evidence, which had not been put to her.
Overall, I am not persuaded that Mr Turnbull failed to consider relevant matters.
So far as going through the medical material is concerned, merely to do so, which incidentally revealed the omission of a complaint of neck pain, would not of itself have or, at least, might well not have alerted Ms Mestric to the importance of this issue. At all events, Dr Fearnside does not state that he took her through all the records. The submission that it was "plainly wrong" for Mr Turnbull to find that Dr Fearnside "had failed to bring to the claimant's attention the lack of record of any complaint of neck problems contemporaneous with the accident" despite taking her through the records and asking her about the failure of the physiotherapist to note her complaint should be rejected. Taking Ms Mestric through her statement or asking for a history is not the same as asking for a history of complaints and asking what she said to particular individuals may well not have alerted her to the possibility that a lack of complaint was significant and she should consider what she had said to others about the accident. Dr Fearnside did not suggest that he ever asked Ms Mestric for a history of her complaints; indeed, his reasons are inconsistent with his having done so. Mr Turnbull's conclusion to the effect that the issue was not raised in such a way as to give Ms Mestric, one way or another, an opportunity to deal with it, was certainly open, indeed, to my mind, the more likely inference.
Nor is there anything in Mr Turnbull's reasons that supports the contention he took an unduly narrow or exacting approach to Dr Fearnside's assessment or made nice distinctions. He focused on the matters that were said to have shown procedural fairness was afforded and concluded they did not fairly bear the interpretation contended for, based on a common sense appraisal of the language used. The distinctions he made in the course of analysing Zurich's submissions were reasonable, focusing on the issue whether the issue of contemporaneous complaint had really been raised. In my view, Mr Turnbull's conclusion that it was not a fair and sensible reading of Dr Fearnside's reasons or, at least, rationally open.
There is some force in Mr Robinson's submission that these circumstances did not fall within clause 1.43 and that, in holding this clause had not been complied with, Mr Turnbull erred. However, that clause is but one example of the ways in which procedural fairness might not be afforded to a claimant. The question is one of substance, not of form. Furthermore, I am not sure that it is essential for a Claims Assessor in Mr Turnbull's position to positively find a denial of procedural fairness in its conventional sense. A decision that an assessment was or might be adversely affected by unfairness or even oversight or some other reasonable basis for doubt might well justify a reassessment. After all, the consequences of a mistaken assessment might well be serious for an insurer but catastrophic for a claimant. The process is not a judicial but an administrative one and the objects of CARS, as stated in the Guidelines include the provision of "a timely, fair and cost effective system" (cl 1.14.1), to "assess claims and disputes fairly and according to the substantial merits with as little formality and technicality as is practicable" (cl 1.14.2, emphasis added). Fairness in this context is to be considered broadly and not hedged about by legal distinctions. Mr Turnbull, in substance, thought that Dr Fearnside's conclusion was not fair or, at least, had not been fairly arrived at because of the omission to alert Ms Mestric to the issue of recent complaint.
This is a matter on which reasonable minds might differ. I am unpersuaded that Mr Turnbull failed to consider relevant matters, made any plainly wrong finding of fact or his decision was not open to him. The fact that he thought there had been a breach of cl 1.43, assuming he erred in this respect, does not materially affect the substance of his assessment.

Orders 1. Summons dismissed. 2. Plaintiff to pay the first defendant's costs.

Amendments 06 June 2016 - Paragraph 18 - typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2016

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