QBE Insurance (Australia) Limited v Thomson

By summons filed on 7 January 2015 QBE Insurance (Australia) Limited seeks by way of judicial review to challenge a decision of Ms Elyse White in her capacity as a Claims Assessor of the Motor Accident Authority made on 27 October 2014.

The assessment resulted in a certificate dated 21 November 2014 recording that the First Defendant in these proceedings, Janine Thomson, was entitled to an amount of damages in a sum of $973,460.18.

Ms Thomson had, on 16 March 2011, been seated in a stationery motor vehicle which was run into from behind. She was employed as a dental hygienist but ceased work shortly thereafter and, apart from some attempts to return to work, has not worked since.

In the period between 16 March 2011 and Assessor White’s assessment of Ms Thomson’s claim, the latter saw numerous medical practitioners and was involved in numerous applications before the Motor Accidents Authority Assessors. A number of reports from those doctors and assessments which had been made were before Assessor White. Also in evidence before Assessor White was a video-recording taken by an investigator engaged on behalf of QBE.

Assessor White concluded that in the accident of 16 March 2011, Ms Thomson suffered injuries to her neck and back by way of an aggravation of pre-existing medical conditions. The Assessor’s reasons included the following:

Summarised, the errors attributed to Assessor White during the course of these proceedings were:

The limits on a court asked to review a decision of a claims assessor have been considered on a number of occasions and there is no need for me to say more on the topic than that to succeed in setting aside an assessor’s decision a party must establish jurisdictional error, a constructive failure to exercise jurisdiction or legal unreasonableness – Craig v State of New South Wales (1995) 184 CLR 163, 179; Minister for immigration and Citizenship v SZMDS (2010) 240 CLR 611, 645; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 363. Particularly given the requirement in s 94(5) of the Motor Accidents Compensation Act 1999 (NSW) and clause 18.4 of the Motor Accidents Authority Claims Assessment Guidelines (the Guidelines) that an assessor provide reasons, albeit reasons which are brief, a failure to provide reasons constitutes an error within the group to which I have referred – Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [31], [33], [130].

The decision of the majority in Minister for Immigration and Citizenship v Li makes it clear that legal unreasonableness encompasses circumstances where:

Notwithstanding the limits of proceedings by way of judicial review, a number of the grounds advanced on behalf of QBE require attention to a deal of the evidence which was before Assessor White. It is convenient to refer to such evidence as I deal with particular grounds. Having regard to the conclusions at which I have arrived I do not find it necessary to deal with all of the grounds relied upon by the Plaintiff.

Although the Assessor could have been more explicit on the topic of the first aspect of this first ground, I do not regard it as made out. In paragraphs 12 to 16 of her reasons the Assessor refers to a finding by Assessor Harvey-Sutton and, in effect quoting from Dr Harvey-Sutton’s report, records that “Ms Thomson presented to the Assessor in a genuine and straightforward manner”.

In the next paragraph she then refers to the opinion of Dr Spira that Ms Thomson’s responses to his physical examination “were not credible” and that she had exaggerated her disabilities and observed that he was the only doctor who had formed the opinion that Ms Thomson was not genuine, albeit adding a somewhat elliptical reference to Dr Lahz.

Assessor White then refers to the results of the video surveillance, concluding that there was nothing in it that would lead her to conclude that Ms Thomson was exaggerating her symptoms. Assessor White then goes on to accept findings of Dr Casikar and Dr Harvey-Sutton and conclude that Ms Thomson suffers from an aggravation of pre-existing medical conditions. A major tenor of this analysis by Assessor White is the existence of conflict in the evidence before her, including direct evidence of Ms Thomson’s movements what evidence should be accepted. Thus it is that the first aspect of Ground One fails.

The second aspect of this ground also fails. QBE had the opportunity to make submissions concerning Ms Thomson’s credit, an opportunity of which its written submissions indicate it took full advantage. There is no obligation on a judge or tribunal, minded to reject submissions made, to give a party a second bite of the cherry, so to speak, by warning that that submissions made are liable to be rejected. See Tweedie v R [2015] NSWCCA 71; Kurt v R, Joshua v R [2014] NSWCCA 318.

The remarks quoted in this ground, appearing as they do just after the Assessor has referred to what might be regarded as substantial inconsistency in Ms Thomson’s movements suggests an abdication of the Assessor’s responsibility.

During much of the video-recording of Ms Thomson’s movements, she seems to move perfectly normally and not be in any unusual emotional state. Included in the period when her condition appeared as I have described was a period concluding with her entering a building in which Dr Harvey-Sutton’s rooms were situate. Despite this, Dr Harvey-Sutton recorded that she:

As I have indicated in my consideration of the first ground, there was a significant challenge to Ms Thomson’s credibility. The contrast between Ms Thomson’s appearance just before seeing Dr Harvey-Sutton and during consultation provided even further reason for the Assessor to deal with the inconsistency in movement that she records.

Thus there is much to be said for the view that this ground should succeed. However, in light of the conclusions I have reached below I do not need to make any final decision on this ground.

Dr Breslin is a urologist who examined Ms Thomson in August 2012. He found numbness in some areas of her groin, and reported on the results of a urodynamic test carried out in November 2011, concluding that Ms Thomson’s bladder symptomatology, of which the most obvious symptom was a degree of incontinence, was neurogenic. He recorded that Ms Thomson had walked into his office and gave her history in a straightforward and pleasant fashion, and that she pointed to her lumbar spine as the site of discomfort and was unwilling to do any flexion or extension so this was not persisted with.

I do not see in Dr Breslin’s report anything of relevance to the reasons of Assessor White or to Ms Thomson’s earning capacity.

Dr Fitzsimons is a neurologist who saw Ms Thomson in January 2014 having been asked by a review panel to consider whether or not there is “objective evidence that there is a neurological injury causing left-labial numbness and possible sexual dysfunction” relating to the March 2011 accident. Dr Fitzsimons report extends to some 10 pages and deals with a variety of bodily changes that could account for symptoms of which Ms Thomson complained and also of possible causes of such bodily changes.

It is not necessary for the purposes of these reasons to canvass those matters but included in Dr Fitzsimons’ remarks are the following:

These remarks clearly raise a question whether Ms Thomson was being honest or genuine in her complaints to Dr Fitzsimons.

Assessor White did rely on Dr Harvey-Sutton’s assessment that Ms Thomson “presented in a genuine and straightforward manner” though perhaps unfairly ignoring the balance of the same sentence from Dr Harvey-Sutton’s reasons, viz. “but there were non-organic/inconsistent signs with reported pins and needles on performing a Tinel’s-type test on the left upper arm, with pins and needles extending between the elbow and shoulder”.

In Campbelltown City Council v Vegan at [121] Basten JA remarked in the context of statutory medical assessments made under the NSW workers compensation legislation:

Assessor White having chosen to rely on one prior assessment bearing on the Plaintiff’s credibility and without providing any reason why it was particularly important or preferred, it behove her to explain why evidence, apparently credible, obviously significant and tending, at least arguably, in the other direction was rejected or discounted. I would add, although I do not feel it necessary to rely on the fact, that a number of other reports also commented on the apparent inconsistency between symptoms reported by Ms Thomson and other information doctors had. This argues for it being more important for Assessor White to properly consider and refer to matters such as those commented on by Dr Fitzsimons.

In so concluding I do not ignore the guideline that the Assessor’s statement of reasons should be “set out as briefly as the circumstances of the assessment permit” but she has said nothing about the reasoning process that led her to ignore Dr Fitzsimons’ observations.

Thus, the Assessor has failed to give adequate weight to a factor of great importance and her decision is legally unreasonable.

$1,596.75 was an agreed figure as representing the amount that Ms Thomson was earning at the time of the subject accident. The Assessor concluded that “Ms Thomson’s past loss is the wages she was earning at the date of the accident until the present time”.

The Plaintiff contends that this finding is inconsistent with evidence that the Assessor accepted. In that connection the Assessor’s reasons include the following:

Ms Thomson gave evidence before Assessor White and was cross-examined. I am informed that in accordance with the usual practice there was no recording of the evidence beyond whatever parts the Assessor referred to in her report. However Ms Thomson did affirm some affidavits. In them she referred to a disagreement with the practice manager of the business in which she was employed, that she had continued in her employment until April 2011 but that:

The topic was adverted to in a number of the reports that were before the Assessor. It is sufficient to refer to one. Dr Lahz, who it may be inferred was recounting information given to her by Ms Thomson, observed:

Not all of these statements are consistent. To plan to change jobs is not as suggestive of an early or imminent change as “seeking alternative work” or “being in the process of arranging alternative employment”.

On the other hand Ms Thomson’s statement that she had been in contact with Dr Selia and made plans to meet with him suggests that, at least as far as it lay within her power to obtain another job on reasonable terms, she would do so sooner rather than later. Ms Thomson’s concern at being required to perform duties outside her scope of practice and the possibility of losing her licence argues in the same direction.

There is certainly some difficulty in reconciling the Assessor’s conclusions that Ms Thomson was actively looking for alternate work at the time of the accident, probably would have gradually decreased her hours with an impact on her wages with the Assessor’s conclusion that Ms Thomson’s wages would have remained at the same level from the date of the accident, 11 March 2011 to the date of the assessment, viz. 21 November 2014, a period of something over 3½ years. It is not obvious why the decreased income that was envisaged would not have occurred at all within that period and Assessor White provides no reasons for her conclusion. In this respect also there is error in her assessment.

It might also be noted that, given the Assessor’s remarks in paragraphs 18, 22 and 26, that error is apparent on the face of the record even if one ignores the other evidence to which I have referred.

Section 94(5) of the Motor Accidents Compensation Act requires a claims assessor to set out the assessor’s reasons for the assessment. Clause 18.4 of the Guidelines promulgated under the Act requires that an assessor set out “the reasoning processes that lead the assessor to the conclusions made”. In neglecting to state why, despite these indications of an earlier reduction in income, the Assessor calculated Ms Thomson’s damages on the basis of her pre-accident income the Assessor has failed to comply with these provisions.

The errors to which I have referred in my consideration of Grounds 3 and 4(iii) and (iv) mean both that the decision of Assessor White must be set aside and I do not need to embark on a consideration of Grounds 2 and 4(i) and (ii).

The form of orders appropriate in the circumstances was not the subject of discussion during the hearing. Those which seem to me appropriate are as follows: