Supreme Court New South Wales

• Medium Neutral Citation: Bugat v Fox [2014] NSWSC 888
• Hearing dates: 21 March 2014
• Decision date: 04 July 2014
• Jurisdiction: Common Law - Administrative Law
• Before: RS Hulme AJ

Decision

(1) The Certificate of the Review Panel made on 11 July 2013 in MAS Matter Number 2012/04/1939 be set aside.

(2) Review of the Certificate of Assessor Ryan made on 15 October 2010, be remitted to the Second Defendant for such review to be dealt with according to law but by a panel with members other than any of the Third Defendants.

(3) That the First Defendant pay the Plaintiff's costs of and incidental to the proceedings in this Court.

• Catchwords: MOTOR ACCIDENT - injury - causation - significance of contemporaneous complaint
• Legislation Cited: Motor Accidents Compensation Act 1999
• Cases Cited: Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096
• Category: Principal judgment
• Parties: Iren Bugat (Plaintiff); Gordon Fox (First Defendant); The Motor Accidents Authority of NSW (Second Defendant); Dr Dwight Dowda, Dr Michael Fearnside and Dr Donald Faithfull (in their capacity as a Medical Review Panel on behalf of the Second Defendant) (Third Defendant)
• Representation: Counsel: AC Canceri (Plaintiff); M Robinson SC; G Mahony (First Defendant); Solicitors: CMC Lawyers (Plaintiff); Sparke Helmore Lawyers (First Defendant); Crown Solicitor's Office (Second and Third Defendants)
• File Number(s): 2013/304605

Judgment

1 By summons filed on 10 October 2013, the Plaintiff seeks judicial review of a decision of a Medical Review Panel made on 11 July 2013, the Panel having been established pursuant to s63 of the Motor Accidents Compensation Act 1999. The orders sought are: -

1. A declaration that the Review Panel Certificate (including reasons) of the Third Defendant issued on 11 July 2013 is affected by error of law on the face of the record and/or by jurisdictional error.

2. An order in the nature of certiorari, or alternatively, a declaration setting aside or declaring invalid the Review Panel Certificate (including reasons) issued on 11 July 2013 by the Third Defendant (a copy of the Review Panel Certificate is attached to this Summons and marked "A").

3. An order that the matter be remitted to the Second Defendant to be dealt with according to law

4. An order that the Defendants pay the Plaintiff's costs of these proceedings.

5. Such further or other orders as the Court deems fit.

2 By an amended summons, which on 21 March 2014 the Plaintiff was given leave to file, the grounds of appeal were slightly expanded. It is convenient to set out the background of these proceedings before turning to those grounds.

3 On 12 July 2009 the Plaintiff was involved in a motor vehicle accident. In a claim form dated 27 July 2009 she provided a description of the accident in terms which suggest another driver was at fault. In answer to two questions, "What are your injuries from the accident?" and "How do the injuries affect you now?" the Plaintiff responded:-

Nausea (pain associated/lying on left side).

Soft tissue/orthopaedic injury to cervical spine, thoracic spine, lumbar spine, chest (sternum/ribs), left knee, left + right shoulders, right elbow, left foot.

PTSD/shock, blood in urine (internal injury).

Pain and restriction of movement in affected areas, unable to work, unable to do housework (reliance on friends, partner, family to do 7-14 hrs.

Unable to drive/severe PTSD reaction travelling as [sic]

Problems sleeping/bad dreams.

Abdominal pain, dizziness, loss of balance.

4 In answer to a further question, the Plaintiff revealed that she had had prior injuries, disability or illness but said that, "prior to the subject accident I had no pain in my neck, back or other part of my body. I was not requiring any pain medication prior to subject accident."

5 The First Defendant in these proceedings was, I infer, the driver of the other vehicle involved in the Plaintiff's accident. The Second Defendant was The Motor Accidents Authority. The Third Defendants were the members of the Medical Review Panel. The Second and Third Defendant filed submitting appearances.

6 The Plaintiff's injuries were initially assessed by Assessor Carr who certified that certain injuries she sustained as a result of the accident gave rise to a degree of permanent impairment that was greater than 10%. On the Application of the First Defendant's insurer that assessment was subject to a review under s63 of the Act. On the review it was determined that the Plaintiff's injuries did not result in a degree of permanent impairment greater than 10%.

7 Subsequently, relying on s62 of the Act, the Plaintiff lodged a further application. That was dealt with by Dr Ryan who on 25 October 2012 provided another certificate. The Plaintiff was dissatisfied with that certificate and sought its review. On 12 March 2013 the Proper Officer of the Medical Assessment Service concluded that there was reasonable cause to suspect that Dr Ryan's medical assessment was incorrect in a material respect and, pursuant to the terms of s63, sent the matter for another review by a Medical Review Panel. In her reasons for that decision the Proper Officer referred to a statement by Dr Ryan that "The documents which are germane in determining the presence or absence of an injury are those most contemporaneous with the time of the accident", observed that while Dr Ryan had referred to some contemporaneous documents, he had not referred to others and said that she was satisfied that there was reasonable cause to suspect he may have failed to take account of some relevant contemporaneous evidence.

8 On 11 July 2013 pursuant to s63 of the Act this further Panel issued a fourth Certificate and it is that certificate which is the subject of challenge in these proceedings. The issue posed for the Panel (and earlier for Dr Ryan) was "Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%", this being one of the matters contemplated by s58 of the Act.

9 Section 61(1) of the Act requires a medical assessor to whom a medical dispute is referred to give a certificate as to the matters referred for assessment and s61(9) provides:-

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

10 Section 63, dealing with a review of a medical assessment by a review panel, provides in ss(6) that section 61 applies to any new certificate issued under the section.

11 The grounds of appeal are: -

First Ground

1. The Third Defendant committed an error of law on the face of the record and a jurisdictional error in applying the wrong test of causation. The test to be applied was that found in clause 1.9 of the Motor Accident Authority's Guidelines for the Assessment of the Degree of Permanent Impairment dated 1 October 2007 ("MAA Guidelines").

2. Clause 1.9 of the MAA Guidelines makes clear that it is sufficient if an injury was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.

3. The Third Defendant concluded that the injury to the Plaintiffs right shoulder was not caused by the relevant motor vehicle accident because of the absence of contemporaneous evidence "to confirm the causation". The Third Defendant only took into account the absence of contemporaneous evidence in reaching such a conclusion. This demonstrates that it applied the wrong test of causation.

Second Ground

4. Further, the Third Defendant committed a jurisdictional error by identifying a wrong issue and asking itself a wrong question on the issue of causation of the right shoulder injury and other injuries, namely, was there contemporaneous evidence of injury? The reasons of the Third Defendant plainly reveal that it treated the absence of contemporaneous evidence as being decisive on the issue of causation. The absence of contemporaneous evidence is a matter that is relevant to the issue of causation, but it is wrong in law to treat it as decisive.

Third Ground

5. Further to the Second Ground, treating the absence of contemporaneous evidence as being decisive on the issue of causation was wrong in law. The error is plainly demonstrated on the face of the record, being the Review Panel Certificate and reasons.

Fourth Ground

6. In the event that it is found that the Third Defendant applied the correct test of causation (which is denied), the Plaintiff says that the Third Defendant fell into a jurisdictional error by ignoring relevant material, namely, the CTP Claim Form of 27 July 2009 and, more importantly, the clinical records of the Plaintiff's treating general practitioner, Dr Hor. These documents were highly relevant to the issue of causation of the right shoulder injury and other injuries.

Fifth Ground

7. In relation to the right and left shoulders, the Third Defendant's comment that "The Panel did not find contemporaneous evidence to confirm causation ..." is a finding that there was no contemporaneous evidence of injury. Craig v South Australia makes it clear that, in some circumstances, making an erroneous finding or reaching a mistaken conclusion is a jurisdictional error.

8. Given the presence of the CTP Claim Form, the clinical note of Dr Hor dated 13 July 2009 and his report of 13 July 2011, the Third Defendant's finding of an absence of contemporaneous evidence of injury is clearly erroneous. Further, it is a mistaken conclusion on a pivotal issue.

12 It was made clear in the course of the application to amend, that the fifth ground related only to the Plaintiff's right and left shoulders.

13 In its certificate the Panel recorded the assessment conducted by Dr Ryan, said they had received and considered: -

• Dr Ryan's certificate and reasons.
• Application forms seeking a review and attached documents.
• Reply form and attached documents.
• The determination of 12 March 2013 referring the matter to a review panel.
• All the documents which were provided to Dr Ryan prior to his assessment.

14 The Panel repeated that it had considered all of the available evidence and decided that a re-examination of the Plaintiff was necessary because sufficient information was not available on the certificate provided by Dr Ryan. They referred to a history provided by the Plaintiff in the course of her re-examination and of findings made during the course of that re-examination. So far as the shoulders were concerned the certificate reads: -

(Mrs Bugat said that after the accident) she was able to get out of the car. She recalls she had a severe headache, severe chest pain and pain in her neck going out to both shoulders. ...

Five months after the accident, she gradually developed sharp pain in her head, into her neck, across to her right shoulder and down her right arm to her hand. ...

Physical Examination

Right Shoulder

There was no deformity in the shoulder. Long head of biceps was functionally intact and deltoid functioned normally. Mrs Bugat complained of tenderness along the trapezius muscle maximum near the neck. Impingement signs were negative.

Active ranges of movement were measured repeatedly with a goniometer.

Left Shoulder

There was no deformity in the shoulder. Long head of biceps was functionally intact and deltoid functioned normally. There were complaints of tenderness but this was not well localised. Tests for impingement signs were negative. Active ranges of movement were measured repeatedly with a goniometer.

15 There is then set out in the certificate findings of the degrees of movement in flexion, extension, adduction, abduction and rotation for each shoulder.

16 Under the headings "Panel Deliberations" and "Injuries" the Panel referred separately to areas of the body said to have been injured.

17 In the case of each of the Cervical Spine, and the Thoracic Spine the certificate states: -

The Panel accepted causation of this injury based on the following contemporaneous documents:

Report of the Ambulance Service... dated 12/07/2009.

Report of... Dr Jayne Crew, dated 12/07/2009.

Medical report of general practitioner Dr Hor dated 13/07/2009.

18 In the case of the Chest, Sternum, Ribs a similar statement is made, the only difference being that the report of Dr Hor referred to was dated 22/07/09.

19 In the case of the Lumbar Spine the certificate records that "The panel did find contemporaneous evidence to confirm the causation noting the medical report of general practitioner Dr Hor dated 13/07/2009 that indicated injury had occurred to the lumbar spine".

20 Under the heading "Left shoulder - Soft tissue injury/orthopaedic injury/aggravation and acceleration of the degenerative changes" the certificate records: -

The Panel did not find contemporaneous evidence to confirm causation noting the evidence from...

21 The panel then referred to the three reports detailed above in reference to the cervical and thoracic spine, and continued:-

For the above reasons, the Panel does agree with Assessor Ryan in his Certificate concerning causation.

22 Under the heading "Right shoulder - Soft tissue injury/orthopaedic injury/aggravation and acceleration of the degenerative changes" the certificate is in identical terms save and except that the report of Dr Hor referred to is dated 22/07/2009.

23 Under the heading "Panel Decision" the certificate records that the Review Panel found that the accident was a cause of a number of specified injuries but went on to say that the panel found the accident was not a cause of the following claimed injuries: -

• Left shoulder - soft tissue injury.
• Right shoulder - soft tissue injury.
• Right arm(carpal tunnel syndrome).
• Left arm (carpal tunnel syndrome).

24 The certificate goes on to record that the Review Panel considered that the injuries to the Plaintiff's cervical, thoracic and lumbar spines and chest gave rise to permanent impairment but assessed that impairment as 0%. The certificate went on to say, "Therefore the total whole person impairment is not greater than 10%".

Conclusion

25 It is convenient to address firstly the Panel's remark that:-

The panel did not find contemporaneous evidence to confirm causation noting the evidence from...

Report of the Ambulance Service... dated 12/07/2009.

Report of... Dr Jayne Crew, dated 12/07/2009.

Medical report of general practitioner Dr Hor dated 13/07/2009.

For the above reasons, the Panel does agree with Assessor Ryan in his Certificate concerning causation.

26 The ambulance report did record "pain to R scapula that radiates to the base of her neck". A diagram of the Plaintiff's back that forms part of that report has indicated on it pain in the area from the neck down in the direction of the right armpit though not extending that far. The indication does not extend to the right shoulder itself.

27 The report of Dr Crew records that the Plaintiff attended the hospital, "complaining of sternal pain and was also wearing a cervical collar".

28 There seems to be no report of Dr Hor of 13 July 2009 though there is a medical certificate of that date recording as the doctor's diagnosis, "MVA, WHIPLASH, SOFT TISSUE TRAUMA, NECK, CHEST AND STERNUM, BACK". There are also Dr Hor's clinical notes of that day that record among the Plaintiff's complaints, "pain to flex shoulder R front". (The photocopy in evidence is difficult to read and I may not have quoted it exactly.) In a report of 13 July 2011 that was also before the Panel, Dr Ryan refers to this note as reading (or meaning), "pain on flexing shoulders frontwards".

29 In the 13 July 2011 report Dr Hor does make substantial reference to the Plaintiff's shoulders. He refers also to notes of 24 August 2009 stating, "pains on holding both arms up" and "pains right hand, right arm and the lateral three fingers from shoulder pain and nerve irritation" and also to notes made on 11 January 2010 of "right shoulder pain" and on 2/2/2010, "whole shoulder and neck spasm" In the report Dr Hor goes on to say that because of the severity of the Plaintiff's other injuries, and the effect of analgesics she was on, little attention was paid to her shoulder (singular) in the period shortly after the accident.

30 What Dr Ryan had said in his Certificate concerning causation was merely:-

The documents which are germane in determining the presence or absence of an injury are those most contemporary with the time of the accident. The contemporary documents appear to be the report of the ambulance (Healthcare Record J487987, 12 July 2009), the discharge summary from Royal North Shore Hospital Emergency Department (12 July 2009), Dr Jayne Crew, Senior Resident Medical Officer.

Based on the evidence in these documents I conclude that Ms Bugat injured her cervical spine, thoracic spine, chest and left knee in the index motor vehicle accident.

31 One of the pivotal questions for the Panel was whether the injuries of which the Plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the Plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the Plaintiff's statements which the Certificate discloses were made to the Panel to the effect that at the time of the accident she suffered "pain in her neck going out to both shoulders".

32 While I accept that, as an administrative decision maker, the Panel's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument" - Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.

33 (The Panel would also seem to have erred in their appreciation of Dr Hor's notes (referred to by the Panel as a report) of 13 July 2009, although this error is of a different calibre so far as these proceedings are concerned and I need not further pursue it.)

34 In arriving at the conclusion I have, I do not ignore the fact that earlier the Certificate records that the Panel had considered what would seem to have amounted to all of the documents. However, that is not an answer to their error in, on the question of causation, apparently putting to one side any documents or evidence that was not contemporaneous.

35 This conclusion makes it unnecessary for me to pursue the question also raised by the grounds of appeal, viz, whether there was jurisdictional error by the Panel.

36 The appeal to this Court must be allowed. An order in the nature of certiorari is appropriate and in those circumstances there is no utility in making the declarations also sought in the Amended Summons. The matter should be remitted to the Second Defendant but any redetermination should be by a different Review Panel. The First Defendant having chosen to contest the appeal should pay the Plaintiff's costs.

37 Accordingly, I order:-

(1) That the Certificate of the Review Panel made on 11 July 2013 in MAS Matter Number 2012/04/1939 be set aside.

(2) Review of the Certificate of Assessor Ryan made on 15 October 2010, be remitted to the Second Defendant for such review to be dealt with according to law but by a panel with members other than any of the Third Defendants.

(3) That the First Defendant pay the Plaintiff's costs of and incidental to the proceedings in this Court.

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Decision last updated: 07 July 2014