Insurance Australia Ltd v Clewley

1. [1]

   The plaintiff is the third party insurer under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) of a motor vehicle which is alleged to have been at fault in an accident on 1 December 2010. The first defendant is Mr Clewley, a claimant for compensation under the Act, who contends that he suffered injury in that motor accident.

2. [2]

   By summons filed 7 October 2015 the plaintiff seeks judicial review of a decision by the proper officer of the Motor Accidents Authority of NSW (“the Authority”). The proper officer is the second defendant to the summons and the Authority is the third defendant (now under its new name, State Insurance Regulatory Authority). The decision sought to be reviewed was made on 7 August 2015 pursuant to s 62 of the Act. The proper officer determined that a medical dispute between Mr Clewley (“the claimant”) and the plaintiff concerning the degree of whole person impairment suffered as a result of the motor accident should not be referred to a medical assessor for further assessment.

3. [3]

   The claimant alleges that the accident caused soft tissue injuries to his left knee, his left shoulder and his cervical spine. Only the injury to the cervical spine and alleged symptoms in his left arm are significant for the purposes of these proceedings. The claimant says that the cervical spinal injury has caused dystonia (meaning spasm or abnormal contraction) in the muscles of the left side of his neck, leading to torticollis (an irresistible turning of the head resulting in it being held persistently to the left side).

Assessment of the claimant under s 60

1. [4]

   The claimant has asserted that his injuries have resulted in a degree of permanent impairment greater than 10% so that he has exceeded the statutory threshold for the recovery of damages for non-economic loss: s 131 of the Act. The plaintiff rejected this claim and the resulting dispute was first referred under s 60 of the Act to assessors Maloney and Truskett. Presumably two assessors in different medical disciplines were required to evaluate the claimant’s permanent impairment, as envisaged by s 61(10).

2. [5]

   Assessor Truskett issued a certificate in accordance with s 61(1) on 30 June 2014. Assessor Maloney issued his certificate on 23 July 2014. Neither of these certificates has been tendered. Secondary evidence of assessor Maloney’s certificate shows that he certified 14% permanent impairment resulting from injuries to the claimant’s cervical spine, left shoulder and left knee, combined.

3. [6]

   It appears that assessor Catherine Williamson was nominated by the Authority pursuant to s 61(10)(b) to make an assessment of the total degree of permanent impairment, based upon matters certified by each of assessors Maloney and Truskett. She issued her “combined certificate” pursuant to s 61(10) on 23 July 2014. The combined certificate has not been tendered, either.

Reference to review panel under s 63

1. [7]

   On the application of one of the parties the medical assessments were referred to a review panel constituted by three doctors, pursuant to s 63. The material provided to the panel for the purpose of carrying out the review included specialist reports of Drs Day and Steel (neurosurgeons) and of Drs Fung, Tisch and Fearnside (neurologists).

2. [8]

   According to the certificate later issued by the review panel, it also received two reports of an organisation named AHC Investigations and copies of surveillance films (on DVD) from

3. [9]

   The panel had before it a typed summary report of some film of activities of the claimant on 9 May 2012 but they did not have a DVD of the film itself. The panel requested that the secretary to the Authority issue a notice to both parties requesting a copy of the DVD. There is no evidence before me of such a notice having been issued. The panel did not receive a copy of the DVD and did not see the surveillance film. The plaintiff, if it had received a notice to provide a copy of the DVD would not have been able to comply because it did not obtain a copy until 3 June 2012. The surveillance film had been undertaken by investigators engaged by AXA claims, in connection with its defence of a quite separate claim by the first defendant under an insurance policy.

4. [10]

   The two male members of the review panel examined the claimant on 2 December 2014. All three signed reasons for their decision on 23 January 2015 and issued a certificate on 12 February 2015. The certificate attributed Mr Clewley’s cervical spine, left shoulder and left knee injuries to the motor accident. They ascribed 5% whole person impairment to the cervical spine and 7% to the left shoulder, for a total of 12%.

Application for further assessment under s 62

1. [11]

   Upon the certificate being issued to the plaintiff, it applied to the proper officer on 16 July 2015 pursuant to s 62 of the Act for the dispute to be referred again to an assessor. Section 62 is in these terms (with emphasis added):

2. [12]

   The application for a fresh assessment was put by the plaintiff to the proper officer upon the basis of “additional relevant information about the injury”. In 7 pages of written submissions supporting the application the plaintiff identified the “additional relevant material” as follows: (1) video of surveillance undertaken at the request of AXA (AMP) on 9 May 2012; and (2) report of Associate Professor Paul Spira (to whom I will refer, for brevity, as Professor Spira) dated 12 June 2015.

3. [13]

   By the time of this application the plaintiff had obtained a copy of the surveillance DVD of 9 May 2012. It was provided to the proper officer, as was a copy of Professor Spira’s report dated 12 June 2015. The 7 pages of submissions explained that the DVD had not been available to the plaintiff to provide to the review panel and contended that on this basis it was “additional material” in the relevant sense. Attached to the written submission was a 2 page schedule containing a detailed description of what could be seen on the DVD, relevant to the claimant’s alleged permanent impairment. The submissions explained the basis upon which the plaintiff contended that the moving images captured on this DVD were “such as to be capable of having a material effect on the outcome of the previous assessment” (s 62(1A)).

Additional report of Professor Spira, 12 June 2015

1. [14]

   Professor Spira’s report of 12 June 2015 recounts what he perceives to be discrepancies and contradictions in the claimant’s presentation, to the resolution of which the plaintiff says the DVD of surveillance on 9 May 2012 is important. According to Professor Spira, the surveillance film from 15 April 2011 (which the review panel did have) showed the claimant “walking in the street with his head in a normal to near-normal position at various times. There is a very slight lateral flexion to the left in some of the video footage but at other times the head is in a normal upright position”. This film apparently showed the claimant’s neck flexing laterally to the right upon entering his motor vehicle and he appeared to be “using his left upper limb normally”.

2. [15]

   On that same day according to Professor Spira, Dr Davis (neurosurgeon) examined the claimant. According to Dr Davis’ report the claimant then exhibited fixed lateral flexion of his neck to the left with his ear in contact with his shoulder.

3. [16]

   Professor Spira also described a surveillance film of 16 January 2013, which apparently showed the claimant demonstrating “normal neck mobility”, flexing his neck to the right, holding a mobile phone to his right ear using his left hand and arm and using “the left arm freely in carrying and manipulating objects and in holding his keys”. Yet on that day the claimant saw Associate Professor Krishnan who reported that at the consultation the claimant’s head was “resting on his left shoulder and he says he is unable to bring it back to the midline without very severe pain developing”.

4. [17]

   Professor Spira reported that he saw the claimant in October 2012, between the dates of the abovementioned surveillance videos, and was given by Mr Clewley a history of persistent full and fixed lateral flexion of his neck to the left with his left ear in contact with his shoulder. The claimant on this occasion also complained of “marked hyperaesthesia (allodynia) of his left upper limb and adjacent trunk, apparently causing him to avoid normal usage of the limb and he displayed prominent pain behaviour”.

5. [18]

   Professor Spira’s opinion of 12 June 2015 contains these significant elements:

6. [19]

   These features of Professor Spira’s report were drawn to the attention of the proper officer in the plaintiff’s submissions in support of its application that the dispute be referred again for assessment under s 62 (as referred to in [11] – [13] above).

Professor Spira’s previous reports and the review panel’s decision

1. [20]

   According to Professor Spira’s report of 12 June 2015 he had previously provided to the plaintiff reports regarding the claimant dated 12 November 2012, 4 April 2013 and 19 December 2013. He said that in the last mentioned report he had “commented on the significance of the video surveillance forwarded” by the plaintiff’s solicitors. Professor Spira’s earlier reports have not been tendered and I do not know whether his comments on the significance of the video surveillance in any of those reports included reference to the stark contrast (as described at [14] – [17] above) between what is seen on the video recordings and what the claimant reported to medical examiners on precisely the same days, respectively.

2. [21]

   The certificate of the review panel does not identify any of the earlier reports of Professor Spira as having been considered by them, although at least one of those reports was apparently in their hands. The review panel stated that the documentation they considered included “all the documents which were provided to assessor Maloney prior to that assessment”. This is an unsatisfactory and unhelpful description in the absence of any schedule listing individually the documents which had been before assessor Maloney. The only source from which I have gathered that the panel had one of Professor Spira’s early reports is a statement to that effect in the submissions which the plaintiff made to the proper officer dated 16 July 2015, supporting the application for a further assessment. In the review panel’s certificate the only mention of Professor Spira is in a chronology, which contains an entry to the effect that the Professor had received most of Mr Clewley’s history whilst Mr Clewley was “lying supine on the floor”.

3. [22]

   The review panel considered the opinions of the specialists whose names appear in the following extracts from the certificate the panel issued on 12 February 2015, at pp 7 – 8:

4. [23]

   I understand the radiculopathy referred to in these notes to mean nerve root compression caused by pressure between the cervical vertebra, leading to pain and numbness radiating into the arm. There is no suggestion in the review panel’s certificate that this was believed to be causative of the alleged dystonia and torticollis.

5. [24]

   After noting that there had “been a degree of disagreement over the cause of the ongoing intermittent left torticollis”, the review panel cited in a summary way the opinions of Drs Fung and Fearnside (that the claimant’s dystonia was psychogenic) and of Dr Tisch who described it as “post-traumatic cervical dystonia with occasional short-term remissions”. “Psychogenic” means “of psychic origin, or dependent on psychic conditions or processes, as a mental disorder”. If this was the nature of Mr Clewley’s dystonia it might be difficult to see how it could have been caused by a motor accident. The panel however reached the following conclusions:

The proper officer’s decision, 7 August 2015

1. [25]

   The proper officer’s reasons for refusing to refer the dispute again for assessment were given in writing as follows (with numbering added for ease of reference):

2. [26]

   The task of the Court on this review is not to determine for itself whether the putative “additional information about the injury” as put forward by the plaintiff (a) actually satisfies the statutory criterion of being “additional” or (b) is “relevant” or (c) is “capable of having a material effect on the outcome of the previous assessment”. As held in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 per Basten JA at [36], the Court will examine only the manner in which the proper officer arrived at his conclusion on those matters and rule upon whether his

3. [27]

   At para 2 of his reasons the proper officer proceeded on the basis that information could only be treated as “additional” if it had not been in the hands of the party now propounding it at the time of the earlier assessment: Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443. Both the surveillance DVD of 9 May 2012 and the further report of Professor Spira satisfied this condition, as the proper officer evidently accepted . It is not necessary for me to consider whether this legal proposition from Singh v Motor Accidents Authority of NSW (No 2) is correct or whether information may qualify as “additional” merely because it was not previously before the review panel: Miles v Motor Accident Authority of NSW [2013] NSWSC 927 at [34] – [37]; Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831 at [29] – [37].

Proper officer’s dismissal of the surveillance video as not “additional”

1. [28]

   At para 1 the proper officer overstated the effect of the passage which he quoted from the judgment of Davies J in Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [35]. The proper officer said that this passage “defined” the statutory “additional relevant information”. Davies J’s observation, as quoted, was concerned with expert medical opinions: “the fact that another expert says the same thing [as that contained in an opinion received in the course of a previous assessment] but using different or greater analysis will not mean the information is additional”. However the proper officer purported to apply this principle to the surveillance DVD of 9 May 2012, taking into account that although the recording of moving images only became available to the plaintiff after the review panel had issued their certificate, the panel had been provided with a typed description of the surveillance agent’s observations made at the time the film was recorded.

2. [29]

   In that typed description the following appeared with respect to what had been filmed at about 11:36am on 9 May 2012:

3. [30]

   The review panel recorded their understanding of this event in a chronology entry at p 7 of their report: “9/5/2012: travelling in car 30 min, picking up bathroom mirror cabinet into rear.”

4. [31]

   This is a reasonable shorthand summary of the 11:36am surveillance log entry. However, having myself reviewed the DVD which the plaintiff relies upon as “additional information” it is apparent that the surveillance log entry is a wholly inadequate description of those aspects of Mr Clewley’s movements on that day which would be relevant to the veracity of his reportage of symptoms. In the video he is seen walking around to the back of a hatchback vehicle with his head and neck in a normal position. He appears physically relaxed and comfortable. He raises the hatchback of the vehicle, lifts the mirrored cabinet from the verge into the rear of the vehicle and then reaches up to close the hatchback, all in smoothly flowing movements without indicating any restriction of movement of his head or neck or loss of function or strength of the left arm. Having loaded the cabinet into the vehicle he is shown moving to a position adjacent the passenger’s side door and turning to look to his right down the street, once more with no indication of stiffness or discomfort.

5. [32]

   The proper officer concluded in para 12 of his reasons that the plaintiff’s description of the DVD (in its submissions to him) as having greater impact than the surveillance log entry alone “strongly suggests that the film is saying ‘the same thing but using different or greater analysis’ as described in Alavanja”. The proper officer does not state anywhere in his reasons that he actually viewed the DVD and I infer from the passage just quoted that he did not. His application to this piece of physical evidence of the principle from Alavanja concerning the mere using of “different or greater analysis” with respect to material that had previously been analysed was erroneous in principle.

6. [33]

   The significant moving images on the 9 May 2012 surveillance video simply were not before the review panel either directly or by way of any reasonably accurate secondary description. The proper officer’s conclusion that the surveillance DVD was not “additional” was not properly found according to law because he failed to view and to take account of the content of the DVD and, independently, because he drew the erroneous and unsupportable inference that the DVD only showed the same thing as was described on the log. Also, he applied a test of whether the DVD said “the same thing [as the log] but using different or greater analysis” – which was a test incapable of rational application to the comparison of a DVD with a narrative log purporting to describe the moving images and which was a test supported by authority only with respect to expert reports.

7. [34]

   In para 4 of the proper officer’s reasons he concluded that because the review panel was aware of some evidence of inconsistency between the claimant’s presentation to examining doctors and his conduct and physical functionality at times when he would not have expected to have been observed, therefore the panel were aware of the issue of inconsistency and an item of evidence which did no more than provide illustration or proof of the inconsistency would therefore not be “additional”. This is illogical and constitutes a failure of the proper officer to recognise that individual items of evidence, all going to the same issue, may each constitute discrete pieces of “information” within the meaning of s 62 and therefore may be “additional” if not previously presented to the panel. The proper officer’s reasoning is erroneous as a matter of law because he has conflated an issue (which was before the tribunal) with the items or body of evidence bearing upon that issue (one of which, the 9 May 2012 surveillance DVD, was not before the panel).

Proper officer’s dismissal of Prof. Spira’s 12 June 2015 report as not “additional”

1. [35]

   At paras 4 and 5 of his reasons the proper officer determined that Professor Spira’s report of 12 June 2015 is not “additional information” upon the ground that it reaches the same conclusion as that which the Professor had expressed in an earlier report which was available to the review panel. Namely, the conclusion that the claimant was simulating disability and was not, in fact, afflicted with persistent debilitating torticollis (subject to periodic abeyance) or loss of function in his left arm.

2. [36]

   By limiting himself to consideration of the ultimate conclusion in each of Professor Spira’s reports, the proper officer failed to evaluate two items of “information” set out in the 12 June 2015 report. He failed to evaluate these items as to whether they are or are not “additional” to what the review panel had previously considered. The first of these items is Professor Spira’s review of some of the “considerable literature” recording the outcome of medical research “highlighting a controversy regarding [the] very existence” of post-traumatic dystonia following peripheral injury (as complained of by the claimant). Secondly, Professor Spira’s 12 June 2015 report contained the information that the putative explanation of inconsistencies between the claimant’s presentation to medical examiners and his physical functionality when he would not have expected to have been observed (namely, the explanation that his torticollis is subject to “spontaneous remissions”) is not viable because purported fluctuations in the supposed condition at the frequency and with the rapidity which would be necessary to account for the inconsistent presentations are unheard of in clinical experience.

3. [37]

   The proper officer failed to take account of these distinct, fresh pieces of information in Dr Spira’s new report because he treated everything referred to in the report as subsumed into its conclusion and he regarded the conclusion as not being “additional information”. This involved erroneous conflation of the Professor’s ultimate conclusion with the information upon which he supported it. The conflation led to the proper officer not considering at all whether the two points of information referred to in [36] were “additional”.

Relevance and capacity to have a material impact

1. [38]

   To summarise, the material which the plaintiff has principally propounded as additional in this case and which I have concluded was not properly considered by the proper officer as to whether it is or is not additional is as follows:

   1. (1)

      The 9 May 2012 surveillance DVD;

   2. (2)

      Professor Spira’s citation of medical literature and research identifying a substantial controversy as to whether the condition from which the claimant is alleged to suffer can be caused by peripheral injury and

   3. (3)

      Professor Spira’s information about the absence of any prior clinical experience of a fluctuating torticollis of the nature purportedly presented by the claimant.

2. [39]

   If, upon proper consideration according to law, the proper officer should accept that any of these three items is “additional” within the meaning of s 62, it is highly likely that he would also find any such item also relevant and capable of having a material impact on the outcome of the previous assessment by the review panel. This follows from the fact that the genuineness of the complainant’s presentation is being challenged by the plaintiff on substantial and strongly arguable grounds. Two highly qualified and experienced neurologists have concluded that his symptoms are psychogenic: Dr Fung and Professor Spira. Another, Dr Fearndale, thinks that a psychogenic explanation is “more likely”. The undisputed contrast between quite normal posture and functionality when out of the doctors’ surgeries followed by fixed neck flexion and loss of left arm functionality when being medically examined on the very same day is, to say the least, striking.

3. [40]

   It appears very unsatisfactory that the review panel of three doctors which was constituted to assess this contentious case did not include a specialist in neurology, given the nature of the disputed (and eminently disputable) issues. But whatever may be the constitution of a review panel or the identity of an assessor, additional information regarding whether such a purportedly fluctuating condition has ever on any occasion been objectively established in a clinical setting (item (3) at [38]) and regarding research as to whether torticollis can be caused by peripheral injury at all (item (2) at [38]) could be expected to be regarded by the proper officer as well capable of affecting a determination of the issue.

Conclusion

1. [41]

   For the above reasons I conclude that the proper officer has failed to apply s 62 to the materials before him properly according to law. His decision must be set aside and the plaintiff’s application under s 62 to have the matter referred again for assessment must be remitted to the Authority to be dealt with under the section having regard to these reasons.

2. [42]

   The plaintiff has sought an order to the effect that a different member of the staff of the Authority be nominated as proper officer for this purpose. I do not consider that necessary. It will be a matter for the Authority to designate such member of its staff as it sees fit, pursuant to subs (1B) of s 62.

3. [43]

   The orders of the Court are:

   1. (1)

      The decision of the second defendant dated 7 August 2015 to refuse the plaintiff’s application for further medical assessment (made on 16 July 2015) under s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) is set aside.

   2. (2)

      The plaintiff’s application for further medical assessment is remitted to the third defendant for determination according to law.