Published date: 20 May 2011.
Judgment date: 20 May 2011.
Farache v Motor Accidents Authority of NSW and Ors [2011] NSWSC 446 Supreme Court of NSW1.

In Brief

  • The failure of a MAS Assessor to include in his Reasons any reference to causation of a neck injury gives rise to a suspicion that the MAS Assessor failed to properly consider the question of causation.
  • The Proper Officer correctly concluded that, in considering a MAS Application for Review, there was reasonable cause to suspect the medical assessment was incorrect in a material respect, namely failure to properly consider the question of causation.

Background

The claimant commenced proceedings in the Supreme Court of New South Wales claiming an order in the nature of certiorari setting aside a decision of the Proper Officer of MAS on the basis that the Proper Officer had erred in allocating a MAS Application for Review to a Review Panel.

The claimant had sustained injuries in a motor vehicle accident on 14 January 2008. The claimant alleged injuries to her neck and right shoulder. A dispute arose between the claimant and the insurer as to the claimant's entitlement to damages for non-economic loss arising out of her accident related injuries.

An Application for Assessment of a Whole Person Impairment Dispute was lodged at MAS and allocated to Dr Dixon. On 26 March 2010, Dr Dixon issued a Certificate and Reasons certifying that injuries to the neck and right shoulder caused by the motor vehicle accident gave rise to a permanent impairment which, in total, was greater than 10%.

Dr Dixon had made available to him at the time of examination of the claimant the Ambulance report and clinical notes of Hornsby and Ku-ring-gai Hospital relating to the claimant's admission on the day of the accident. Dr Dixon was also provided with a short report of the claimant's general practitioner, Dr Hong.

The contemporaneous medical records from the Ambulance Service and Hornsby and Ku-ring-gai Hospital made no reference to any injury to the neck. Dr Dixon did not specifically note this in providing a summary of the relevant documentation provided to him, but did refer to the contemporaneous complaints made by the claimant of right shoulder symptoms.

The insurer lodged a MAS Application for Review on 19 April 2010 in which it was contended that Dr Dixon failed to address the issues of causation in relation to the allegation of an injury to the neck. The claimant lodged a Reply and the Proper Officer resolved, after reviewing the documentation, to allocate the Application to a Review Panel.

In particular, the Proper Officer considered the effect of s 58 of the Act and noted that the words the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident make it implicit in any assessment that there will be a consideration of causation of a claimant's symptoms and impairments. The Proper Officer noted an absence of any clear explanation by Dr Dixon as to how he formed his conclusions in relation to causation of the cervical spine injury. The Proper Officer was satisfied that there was reasonable cause to suspect that the assessment may be incorrect in a material respect.

Before the claimant filed the Summons in the Supreme Court, the Review Panel examined the claimant and issued a Certificate and Reasons on 30 July 2010. No challenge was made to the Review Panel Certificate and Reasons by the claimant.

Supreme Court Proceedings

The claimant submitted that there was no material error disclosed in the MAS Certificate of Dr Dixon in the terms of the proper application of the Medical Assessment Guidelines. It was stated that these Guidelines made it abundantly clear that addressing the issue of causation was a matter for the MAS Assessor to undertake and, as Dr Dixon had stated that the neck injury was caused by the motor accident, there was no reason to suspect he had failed to properly consider and determine the question of causation; Dr Dixon having:

  1. obtained a history from the claimant which included complaints of occipital headache;
  2. reviewed radiological evidence;
  3. conducted an examination of the claimant; and
  4. reviewed the available medical records

The position of the insurer did not appear to be entirely understood by the claimant. In lodging the MAS Application for Review, the insurer alleged that the material respect in which the assessment was incorrect was error as to causation of the alleged neck injury and it was on that basis that the review had been granted by the Proper Officer. It was insufficient for Dr Dixon to simply state that some injuries were caused by the motor accident and one was not. Dr Dixon failed to analyse issues of causation at all and there was no mention by him in his Reasons of the absence of a contemporaneous record of neck pain in the medical records. Dr Dixon failed to explain how he overcame the issue of causation.

Judgment

Justice Hislop noted that the question of causation of the neck injury was a significant issue in the dispute between the parties. This issue had been clearly raised by the insurer in both the initial Application allocated to Dr Dixon and in the Application for Review. His Honour was satisfied that the failure of Dr Dixon to include in his Reasons any reference to causation aspects of the neck injury or the Ambulance records, and his failure to make any analysis of the question of causation in respect of the neck injury in his conclusions or elsewhere in his Reasons gave rise to a suspicion that Dr Dixon failed to properly consider, or overlooked considering, the question of causation.

Justice Hislop was satisfied that the claimant had not demonstrated that the Proper Officer erred in concluding that there was reasonable cause to suspect that the Certificate and Reasons of Dr Dixon were incorrect in a material respect having regard to the particulars set out by the insurer in the Application for Review.

His Honour dismissed the Summons.

Implications

Justice Hislop has found no error in the Proper Officer's decision to refer the dispute to a MAS Review Panel on the basis that Dr Dixon had failed to give proper reasons for his causation findings. The facts of this matter are similar to those in Dogon v Redmond and Ors2 where Justice Hulme made similar findings.

Justice Hislop confirmed that where there is contemporaneous evidence contained in medical records before a MAS Assessor, those records need to be analysed and explained in light of the ultimate conclusions expressed as to the injuries caused by the accident.

This decision reinforces the recommendation expressed in the Curwoods Case Note on Dogon v Redmond and Ors3that the causation findings in MAS Reports be carefully reviewed to see whether proper reasons have been given for conclusions reached. In the event that the conclusions on causation are not properly explained, an Application for Review under s 63 may be made.

1. Justice Hislop

2. [2020] NSWSC 1329

3. Ibid

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