DOGON v REDMOND [2010] NSWSC 1329 (16 November 2010)

Last Updated: 18 November 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
DOGON v REDMOND [2010] NSWSC 1329


JURISDICTION:


FILE NUMBER(S):
2010/252454

HEARING DATE(S):
16 November 2010


EX TEMPORE DATE:
16 November 2010

PARTIES:
Plaintiff: Nicme DOGON
1st Defendant: MOTOR ACCIDENTS AUTHORITY
2nd Defendant: JOSEPHINE REDMOND
3rd Defendant: NRMA INSURANCE AUSTRALIA LIMITED

JUDGMENT OF:
Hulme J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Plaintiff: Mr AD Campbell
Defendants: Mr M Robinson

SOLICITORS:
Plaintiff: Benjamin & Robinson
1st Defendant: IV Knight
2nd Defendant: IV Knight
3rd Defendant: Curwoods Lawyers


CATCHWORDS:


LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
The Summons is dismissed.
The Plaintiff pay the Third Defendant's costs.



JUDGMENT:

- 6 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

2010/252454

RS HULME J

16 November 2010

Nicme DOGON v Josephine REDMOND

JUDGMENT

1 RS HULME J: By Summons filed on 29 July 2010 the Plaintiff seeks that a decision of Josephine Redmond in her capacity as the proper officer of the Motor Accidents Authority of New South Wales to refer a certificate of Assessor, Dr Lethlean to a Medical Review Panel be quashed.

2 The Plaintiff is an applicant in a claim under the Motor Accidents Compensation Act. Her claim was the subject of assessment by Dr Lethlean who, on 14 April 2010, issued an assessment concluding that the Plaintiff had suffered “permanent impairment of 11% in consequence of a motor accident in which she was involved on 28 January 2007.” Included in the injuries which Dr Lethlean found the Plaintiff suffered, were the following:-

Left shoulder – injury to rotator cuff/pain radiating from neck.

Left wrist – injury to dorsal radiocarpal ligament/injury to inferior and radio/ulnar joint/soft tissue injury.

3 Other injuries found by Dr Lethlean were not the subject of debate during the hearing before me and may be ignored.

4 In his certificate, Dr Lethlean recorded the attendance of the Plaintiff and the presence of an Aramaic interpreter, that details of the Plaintiff’s history “were not readily obtained despite lengthy answers and apparently good interpretation”, and that:-

“With the exception of some cervical movement, somewhat variable and some hesitation in account and in movements, Mrs Dogon presented in a straightforward and consistent manner.

In particular, the range of movement for shoulder and wrist as recorded was consistent. Pain restricting shoulder movement appeared to be joint-based rather than cervical.

No significant inconsistencies were seen.”

5 In his “Summary of Relevant Documentation” Dr Lethlean observed that:-

The St George Hospital discharge summary of 5 February 2007 recorded “generalised pain and seatbelt pattern, superficial contusion. Spinal fractures at C7 and L1 were discovered, but no other acute injury was identified.”

A medical certificate of Dr Peter Razvan of 8 March 2007 recorded that the Plaintiff was in a spinal brace, ‘can hardly move – in pain - ’.

That a medical report of a neurosurgeon Dr Davies of 13 August 2007 noted that the Plaintiff was: “complaining of pain in almost every region of her body” and that a report od Dr Guirgis of 29 November 2008 recorded that in the accident, the plaintiff “sustained injuries to her head, neck, left shoulder, chest, upper back, lower back and left ribs, left shin of the left leg and also the left groin. She continued to complain of persistent pain, stiffness and heaviness in the left should. She also continued to complain of painful stiffness and weakness in the left wrist, particular affected; the of the inferior rdio/ulna joint as she pointed on her body.”

6 Included in Dr Lethlean’s conclusions was the following:-

“Pain was widespread following the MVA of 28.01.07. There is no ambulance or hospital report suggesting left shoulder or left wrist lesions. The first reference is that of Dr M Giurgis – report of 29.11.08. Ultrasound of the left shoulder was performed 24.01.08, and MRI scans of the wrist 04.03.08 and 16.04.08. The ultrasound findings are not specific to trauma. The effusion in the left wrist is noted. There is no indication in GP notes of antecedent shoulder and wrist difficulties on the left.

I have accepted that the left shoulder and left wrist injury was sustained in the MVA of 28.01.07.”

7 The Respondent in the Motor Accidents Authority proceedings made application under s 63 of the Motor Accidents Compensation Act for a review of Dr Lethlean’s assessment by a Review Panel. s 63(3) provides:-

“The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least three medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.”

8 On 12 July 2010 Ms Redmond decided to refer the assessment as envisaged by s 63. In her reasons for that decision, she quoted clauses 1.19 and 1.20 of the MAA guidelines, underlining certain passages in those clauses. The matters so emphasised were whether the injury was caused by the accident, that causation would depend in large measure on records dating from the onset of any condition and including the initial evaluation of the condition and the evidence, calculations and reasoning on which any determination of percentage permanent impairment determination was based. Ms Redmond went on to observe that the assessor:-

“... does not refer to the evidence or provide reasoning for his determination” and

“in the absence of any clear explanation by the Assessor as to how he formed his conclusions in relation to causation of the claimant’s left shoulder and wrist injuries, I am satisfied that there is reasonable cause to suspect that the assessment may be incorrect in a material respect.”

9 The Plaintiff’s right to relief in this court depends upon showing that Ms Redmond’s decision was affected by error of law. In the circumstances of this case that means showing that there was no proper basis upon which she could have come to the conclusion that she did – i.e. there was no reasonable cause to suspect that the medical assessment was incorrect in a material respect.

10 Relevant in this connection are Guidelines for the Assessment of the Degree of Permanent Impairment which have been formulated for the purposes of the Act. Clause 1.2 of the Guidelines provides that they are definitive with regard to the matters they address albeit it must be recognised that in clause 1.3 it is said that:-

“If the text is in bold it is a directive of how the assessment be performed.”

11 Clauses 1.19 and 1.20 are not in bold. That said there is certainly much in favour of the proposition that Dr Lethlean did not set out any reasoning by which he determined that the left shoulder and left wrist injury was sustained in the accident of 28 January 2007.

12 I of course accept that the reasons of an assessor under the Motor Accidents Act “are not to be construed minutely and finally with an eye keenly attuned to the perception of error” – see Insurance Australia Limited v Motor Accidents Authority of New South Wales; Kelly v Motor Accidents Authority of New South Wales [2007] NSWCA 314. But a mere recitation or summary of the evidence as appears in the passage quoted from Dr Lethlean’s conclusions followed by a statement “I have accepted that the left shoulder and left wrist injury was sustained in the MVA of 28.01.07” does not seem to me to comply with his obligations.

13 I should mention specifically a number of matters. Firstly, it was somewhat misleading to state that the first reference to left shoulder or left wrist lesions was that in Dr Giurgis’ report of 29.11.08 when the ultrasound and MRI scans of early that year were in fact addressed to Dr Giurgis. That circumstance seems to me to make inevitable the conclusion that the scans had been ordered by that doctor pursuant to earlier complaint by his patient.

14 The second point that should be made is that in addition to the ambulance and hospital reports making no suggestion of left shoulder or left wrist lesions there were a number of other medical reports during 2007 which were also silent on the topic and which could have been expected to refer to complaints concerning the left shoulder or left wrist if such complaint had been made. Dr Lethlean makes no reference to these.

15 It must be acknowledged that Dr Giurgis attributes the shoulder and wrist injuries to the accident of January 2007 but that conclusion is only as good as the history he was given and there is nothing in his report to indicate that that history was complete.

16 One other matter to which I would refer, although I acknowledge that Counsel did not, was that the Plaintiff’s complaints of pain and discomfort arising in consequence of the accident can, in light of the objective signs of injury, only be described as extreme. That is not, of course, to say that they should be rejected. But it is enough to raise questions as to the extent to which they should have been accepted by Dr Lethlean. Again, his reasons provide no indication that he directed any attention to this topic at all.

17 In the result, I am unpersuaded that Ms Redmond was not entitled to be satisfied as s 63(3) requires. It follows that the Summons must be dismissed.

18 I should not leave the proceedings however without referring to the fact that prior to my coming onto the bench this morning, no evidence in support of the application had been filed. There was not even a copy on file of the decision, the overruling of which was sought. Clearly, someone in the very recent past had directed attention on the Plaintiff’s side to the absences of evidence and I was provided at an early stage of the hearing with a folder of photocopied documents extending to something of the order of 130 pages. They were in no particular order and there was no index to them. These matters provide firm examples of how proceedings in this court should not be prepared.

19 Subject to anything anyone may wish to say, it seems to me to follow th the dismissal of the summons carries with it an order that the Plaintiff pay the Third Defendant’s costs. The first and Second Defendants have submitted to such order as the court may think fit other than one of costs against them.

ORDER

The Summons is dismissed.

The Plaintiff pay the Third Defendant’s costs.

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LAST UPDATED:
17 November 2010