Supreme Court New South Wales

• Medium Neutral Citation: Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577
• Hearing dates: 12 December 2012
• Decision date: 12 December 2012
• Jurisdiction: Common Law
• Before: Hall J

Decision

The following orders and declarations were made by Hall J:

1. A declaration that the certificate, including the reasons of the third defendant, James Bodel, issued on 9 January 2012, is affected by an error of law on the face of the record.

2. An order in the nature of certiorari is made quashing that certificate and the reasons of the third defendant.

3. A declaration is made that the decision of the fourth defendant, Jeremy Lum, dated 5 April 2012, refusing the plaintiff's application for review of Dr Bodel's certificate by a medical review panel is affected by an error of law on the face of the record.

4. An order is made in the nature of certiorari quashing a decision of the fourth defendant.

5. I make an order that the matter be remitted for further medical assessment under the Motor Accidents Compensation Act 1999 to the second defendant, the Motor Accidents Authority, being New South Wales, to be dealt with according to law.

6. The defendant is to pay the plaintiff's costs on the ordinary basis of these proceedings.

• Catchwords: ADMINISTRATIVE LAW - judicial review - error of law on the face of the record - whether certificate under Motor Accident Compensation Act 1999 - whether certificate of a Medical Assessor affected by error of law on the face of the record - finding that shoulder injuries caused by the relevant motor vehicle accident and gave rise to permanent impairment - application to a Review Panel for a review of the assessment rejected - whether adequate reasons for the Medical Assessor's decision that should injuries and impairment caused by the motor vehicle accident - absence of history of shoulder symptoms following the accident - basis for concluding that should symptoms were caused by the motor accident not identified by the Medical Assessor - error on face of the record established
• Legislation Cited: Motor Accidents Compensation Act 1999
• Cases Cited: Alchin v Daley (2009) NSWCA 418; Campbell City Council v Vegan (2006) NSWCA 284
• Category: Principal judgment
• Parties: Allianz Australia Insurance Limited (Plaintiff); David Francica (First Defendant); Motor Accidents Authority of NSW (Second Defendant); Dr James Bodel (in his capacity as a Medical Assessor on behalf of the Second Defendant) (Third defendant); Jeremy Lum (in his capacity as the Proper Officer of the Second Defendant) (Fourth Defendant)
• Representation: Counsel: Mr KP Rewell QC (Plaintiff); Mr AC Canceri of counsel (First Defendant); Solicitors: Sparke Helmore (Plaintiff); CMC Lawyers (First Defendant); Crown Solicitor (Second, Third and Fourth Defendants)
• File Number(s): 2012/201362

Judgment

1 These proceedings were commenced by way of summons on 27 June 2012. The summons seeks declaratory relief in respect of a certificate and decision that was issued under the Motor Accidents Compensation Act 1999 ("the Act") which I will refer to in more detail shortly.

2 The first defendant to the proceedings was the claimant under the Act for physical and psychological injuries alleged to have been caused by a motor vehicle accident that occurred at Moore Park on 1 September 2006. The accident was a rear-end collision and liability was admitted by the plaintiff, which is the insurer under the Act.

3 The first defendant was born on 10 January 1963. He was accordingly 43 years at the date of the accident and is presently 49 years of age. The Motor Accidents Authority of New South Wales is the second defendant. Dr James Bodel, in his capacity as a Medical Assessor on behalf of the second defendant, is the third defendant to the proceedings, and Jeremy Lum, in his capacity as the Proper Officer of the second defendant, is the fourth defendant to the proceedings.

4 The first defendant alleged that he suffered injuries, being physical injuries, in the accident as follows: (a) cervical spine; (b) thoracic spine; (c) lumbar (d) left shoulder and (e) right shoulder. There was previously a claim for psychological injury but that forms no part of these proceedings.

5 The third defendant, Dr Bodel, issued a certificate on 9 January 2012 which is in evidence. He certified that the injuries specified in the certificate, in particular injuries said to have occurred to the left and right shoulder, gave rise to permanent impairment greater than 10 per cent.

6 The plaintiff in these proceedings maintains that the certificate was affected by error of law on the face of the record and/or by jurisdictional error. The way in which the case has been argued, the submissions focused on what were asserted to be errors of law. An order quashing the certificate is sought. A declaration is also sought in respect of the refusal by Mr Lum, fourth defendant, of an application made by the plaintiff insurer for a review of Dr Bodel's certificate on the basis that it also is affected by error of law on the face of the record and/or by jurisdictional error. An order is sought in the nature of certiorari quashing that decision. Finally, an order is sought that the matter be remitted to the Authority, the second defendant, to be dealt with according to law.

7 In these proceedings the evidence comprises the affidavit of Mr Stoddart sworn 19 June 2012, in particular the exhibits to the affidavit, comprising two folders of documents. In broad terms, the material contained within what I might call the first bundle behind tabs A, B, C consists of documents related to an assessment made by Dr David Maxwell, Orthopaedic Surgeon, on 30 October 2008 and a second assessment made by Dr Sam Perla on 21 April 2010. Dr Maxwell came to a different conclusion to Dr Perla which I will refer to shortly.

8 The issues in these proceedings essentially rest on two bases:

(1) The asserted inadequacy of reasons by Dr Bodel as Medical Assessor and

(2) The failure by Dr Bodel to properly apply principles of causation.

9 Relevantly to those issues is the material contained in the second folder behind tabs F to I and importantly the certificate and Reasons for Decision, of Dr Bodel, behind tab F.

10 I have been assisted in these proceedings by written submissions on behalf of the plaintiff and on behalf of the first defendant and also oral submissions.

11 In the written submissions for the plaintiff it was submitted (as is the fact) that there were no radiological investigations of either of the first defendant's shoulders prior to the subject accident on 1 September 2006.

12 The first assessment by Dr David Maxwell under section 61 of the Act dated 2 September 2008 resulted in assessments in relation to the cervical, thoracic and lumbar spinal segments and of both shoulders. Dr Maxwell concluded that soft tissue injuries to each parts of the body were caused by the subject motor accident. Dr Maxwell assessed impairment as nil per cent of each body part. That assessment was made notwithstanding Dr Maxwell's conclusion that the soft tissue injuries to each of the body parts in question, including the shoulders, were caused by the subject motor accident.

13 In 2010 a second application for assessment was made by the first defendant, this time on different grounds to the first. Dr Perla's assessment on 21 April 2010 was that the cervical and lumbar spinal injuries were caused by the accident in question. He assessed zero percent permanent impairment in respect of the cervical spine and five per cent impairment in respect of the lumbar spine. He found that the alleged injuries to the thoracic spine, the left shoulder and right shoulder were not caused by the subject motor accident.

14 The first defendant made an application, in effect, for a review of Dr Perla's assessment but it was made out of time, and was, accordingly, rejected by the Proper Officer of the Authority.

15 In July 2010, he applied for a second assessment of his physical injuries under s 62 of the Act. Additional information was said to include the reports of Dr Wade Harper, Orthopaedic Surgeon, who had been treating the first defendant for his right shoulder, and Dr Peter Conrad, a medico-legal specialist. Dr Harper operated on the first defendant's right shoulder on 5 November 2010.

16 The further assessment by Dr Bodel was deferred until 23 November 2011 by reason of the performance of surgery. Dr Bodel determined that the following injuries were caused by the accident giving rise to permanent impairment as follows: The cervical spine, 2 per cent; the lumbar spine, 2 per cent; right shoulder, 8 per cent; left shoulder, 8 per cent. Those assessments were reduced respectively from 5 per cent to 2 per cent by reason of pre-existing impairment. Total impairment was 19 per cent in respect of the first defendant's physical injuries. The plaintiff applied for a Review Panel to review the assessment of Dr Bodel. That was rejected by the Proper Officer, as I have earlier stated. Accordingly, a judicial review is sought in respect of it as well.

17 It is necessary, before turning to Dr Bodel's assessment, to say something very briefly about the principles that apply on the question of the obligation to provide reasons. The decision of the Court of Appeal in Campbell City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present. His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that:

"Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in reports provided to the panel."

18 In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue; in other words, what was the precise battle ground between the parties before the determining tribunal. In the decision of Alchin v Daley (2009) NSWCA 418, Sackville AJA, with whom McColl JA and Young JA agreed, stated:

"The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute."

19 I turn to the certificate and Reasons for Decision of Dr Bodel. The Reasons for Decision by him are comprehensive. They run to almost 24 pages. Dr Bodel set out the list of injuries which included the left and right shoulders. He referred to the fact that the first defendant had developed increasing pain in the neck and back after the accident, that he had increasing numbness and tingling radiating in the legs and pain in the interscapula region of the thoracic spine.

20 As Mr Rewell, Senior Counsel for the plaintiff, observed, however, that Dr Bodel did not refer to the fact that shoulder symptoms were also part of the history. Dr Bodel went on to state that Dr Collins did not indicate any specific areas of injury apart from the neck and the back, and the fact of dizziness in his report. Dr Bodel noted this on page 5 of his reasons, and then added:

"Mr Francica, however, indicates increasing head and neck and interscapula pain, pain in both shoulders and pain in the lower part of the back and buttocks. He also had pins and needles radiating to both legs."

21 The Reasons for Decision demonstrate that Dr Bodel did not have any recorded medical clinical history of problems in the nature of pain affecting the shoulders. The paragraph which I have just quoted seems to record something told to him by the first defendant. However, as Mr Rewell observed, it does not contain any clear history that he was saying that he had pain in the shoulders from the date of the accident or some particular point thereafter.

22 So far as causation is concerned, Dr Bodel recorded:

"This gentlemen presents with mechanical symptoms in the neck and back, a restricted range of shoulder movement which he associates with the accident on 1 September 2006."

23 That part of the history, if it can be called that, is mere assertion by the first defendant without any contemporaneous corroboration of any ongoing symptoms at some point following the accident.

24 I have referred earlier to the lack of corroboration in contemporaneous medical reports. These include, in particular, Dr Collins' report of 8 April 2008 and Dr Cummine's report of 17 March 2008. Additionally, the Prince of Wales Hospital records do not confirm any shoulder complaints.

25 Dr Bodel was aware, and he noted in his Reasons for Decision, what the issue for decision was between the parties. At page 10 of his reasons he stated, "The insurer at the time also 'disputes any related injury to the left and right shoulder as being causally related to the subject motor vehicle accident'." It is plain from that passage and from other parts of the Reasons that Dr Bodel was fully aware of what the subject of dispute between the parties was and which required resolution. He was also aware of the conflicting assessments earlier made by Drs Maxwell and Perla to which he referred at page 11 of the Reasons.

26 He further noted at p 13:

"Submissions from the applicant's solicitors are noted and they deal at great length with the causation of (sic) issue in this circumstance. I am cognisant of those factors."

27 Dr Bodel referred to the findings of Dr Harper. In short form he referred to an MRI scan which reported a supraspinatus bursal sided tear affecting the right shoulder. The critical findings of Dr Bodel are recorded at page 17 whereby he stated that, "The accident in question caused an aggravation to longstanding pathology in the neck and the back prompting increasing medication and referrals," and continued "also caused referred pain to the region of the shoulders and MRI scans show evidence of rotator cuff and pathology in the region of the right shoulder and tendonitis in the left shoulder." He continued:

"There is therefore a causal connection between the episode of injury on 1 September 2006 and the ongoing pathology of the neck and the lower part of the back and both shoulders."

28 It is to be noted here that there was no reference to the basis for Dr Bodel's conclusion that there was a causal connection between the accident and the shoulder dysfunction. It is not clear from his Reasons whether the doctor was saying it was occasioned by referred pain from one or other parts of the spinal segment or that it was an aggravation to a pre-existing condition or that it was a combination of both of those matters.

29 More importantly, there is no basis demonstrated for a suggestion that the tendonitis or the rotator cuff pathology to which he referred, or the condition for which surgery was chosen, was caused by any mechanical or physical effects of the car accident.

30 In circumstances where the central issue between the parties was causation, it was essential for the Medical Assessor to analyse the evidence which would identify the nature of the pathological basis for any shoulder problems and to demonstrate how that basis was related to the effects of the accident.

31 The submissions that have been made on behalf of the first defendant raise a number of matters. Importantly emphasis was placed upon the fact that there was no evidence at all of any pre-existing problem with the shoulders or symptoms preceding the accident. This was emphasised to be a central fact on the issue of causation.

32 Secondly, as to the contention based upon the absence of complaint, Dr Bodel, it was submitted, was acutely aware of the lack of complaint and took that into account.

33 Thirdly, it was submitted that the history given by the first defendant as recorded at page 8 of the Reasons for the Decision, to which I have earlier referred, in which the first defendant is recorded as associating the shoulder and other problems with the accident, was said to be history on which it was open for Dr Bodel to act upon. Additionally to that there was an explanation by the first defendant as to why there were no contemporaneous complaints recorded, namely his reluctance to consult doctors. As to that I accept that for a period of time that is an explanation as to why there is no recording of contemporaneous complaints but thereafter the first defendant did not report to doctors, including Dr Cummine and the other surgeon to which I have referred, Dr Collins, any difficulties with shoulder symptoms.

34 Fourthly, it was submitted that pages 10 to 16 of the Reasons demonstrate that Dr Bodel had considered in comprehensive fashion a considerable amount of material in reaching his conclusion.

35 Fifthly, it was submitted that the findings, in particular page 17 of the Reasons of Dr Bodel, were available on the basis of the underlying pathology which was rendered symptomatic. Again the point was emphasised there had been no suggestion of any prior symptoms before the motor vehicle accident.

36 In making his findings it was submitted that Dr Bodel was not a lawyer but that he was exercising clinical judgment. It was contended that reasons need not be extensive in respect of such professional judgment, reference being made to Vegan at 122. It was submitted that Dr Bodel exercised his clinical judgment informed by legal principle.

37 It was submitted that whatever the proper characterisation, that is whether the cause was referred pain or arose from underlying pathology, was not to the point. The task set for Dr Bodel was to determine whether or not the impairment overall exceeded the threshold under section 131. Reference was made to AMA 4 which has become exhibit 1 in the proceedings.

38 In relation to that point, however, the underpinning or subadjacent matters for investigation relevant to the performance of the assessment of impairment came back to whether or not the shoulder problems were, on the evidence, related or caused by the motor vehicle accident.

39 Whilst in many cases there may not be corroboration in the form of medical reports or clinical notes of ongoing symptoms, that is not determinative of whether a medical practitioner later in time can still link back a particular medical issue to an earlier event. However, the difficulty in the present case was that Dr Bodel was required, in the circumstances in which there was an absence of a history of complaints to the shoulders, to state the basis upon which he formed his conclusion that those problems were causally relevant to the accident. That required Dr Bodel to identify the nature of the underlying problem which was said to be responsible for the symptoms. In particular an assessment was required to determine whether or not there was a basis for Dr Bodel's decision in terms of an accident caused pathological change, as distinct from degenerative changes, as being the sole cause of ongoing problems.

40 Dr Bodel's conclusion at page 17 (to which I have earlier referred) made the decision to which I have referred, without applying the judicial method, that is by determining whether the accident caused referred pain to the region of the shoulders. He then continued to state that, "MRI scans show evidence of rotator cuff pathology in the region of the right shoulder and tendonitis in the left shoulder." The implication is that the pathology in both shoulders had a causal connection with the accident. There is, however, no basis demonstrated in the Reasons for Decision for such a conclusion. The Medical Assessor simply proceeded to say, "Therefore, a causal connection", et cetera, has been established.

41 I referred earlier to the observations of Sackville AJA in Alchin v Daley. His Honour continued in that case to say:

"There are three fundamental elements of a statement of reasons which is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate Court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to."

42 Although Sackville AJA was there concerned primarily with a contest involving conflicting evidence, it is clear that the same principle applies in circumstances where the central issue between the parties has been identified. It is necessary in those circumstances for the dispute to be resolved by reference to the evidence. The Medical Assessor failed to do this.

43 It follows from what I have stated that the reasons provided by the Medical Assessor, Dr Bodel, were not adequate or proper reasons in the sense to which the Court of Appeal referred to in Vegan for they did not deal with, by application of the required method, an analysis of the issues and matters that would resolve the central issue between the parties. It follows that the certificate in those circumstances does display an error of law on the face of it.

44 The conclusion in that regard applies to the issue of causation in respect to which the reasons contain the deficiency to which I have referred. I do not consider that the Medical Assessor identified or applied the requisite principles for determining causation of injury. In that respect the certificate and reasons for the decision demonstrate error of law on the face of the record.

45 The second part of these proceedings relates to the Proper Officer's decision. The Proper Officer properly identified the issues in paragraph 9 of his statement of reasons. In stating that he did not accept that the assessor merely recited radiological evidence of the shoulders followed by a statement that the shoulder injuries were caused by the subject accident, I consider that the Proper Officer erred. I do not accept, as he stated, that the reasons were clear and self-explanatory. I do not accept that the Medical Assessor determined that the neck injury caused referred pain to the region of the shoulders as the Proper Officer stated. In that respect I refer to the matters to which I have already made observations about in dealing with the first area of challenge concerning the decision of the Medical Assessor. Accordingly, the conclusion reached by the Proper Officer, in which he stated that he was not satisfied there was a reasonable cause to suspect that the medical assessment is incorrect in a material respect, is a conclusion that manifests an error of law on the face of record and it should be set aside.

46 Accordingly I make the following declarations:

1. A declaration that the certificate, including the reasons of the third defendant, James Bodel, issued on 9 January 2012, is affected by an error of law on the face of the record.

2. An order in the nature of certiorari is made quashing that certificate and the reasons of the third defendant.

3. A declaration is made that the decision of the fourth defendant, Jeremy Lum, dated 5 April 2012, refusing the plaintiff's application for review of Dr Bodel's certificate by a medical review panel is affected by an error of law on the face of the record.

4. An order is made in the nature of certiorari quashing a decision of the fourth defendant.

5. I make an order that the matter be remitted for further medical assessment under the Motor Accidents Compensation Act 1999 to the second defendant, the Motor Accidents Authority, being New South Wales, to be dealt with according to law.

6. The defendant is to pay the plaintiff's costs on the ordinary basis of these proceedings.

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Decision last updated: 22 February 2013