AAI Limited v Ali  NSWSC 1068
August 6, 2015
The plaintiff, AAI, applied for judicial review of a MAS Assessment performed by Assessor Cameron, and also the decision of the Proper Officer of the Motor Accidents Authority dismissing AAI’s application for review of Assessor Cameron’s MAS Certificate.
Peter Utiger, Partner of our Newcastle office, acted for the successful insurer in the Supreme Court of NSW proceedings before Justice Wilson.
Her Honour, Judge Wilson, noted:
‘The challenge to Dr Cameron’s assessment relates, in summary, to his purported failure to properly resolve the question of malingering on the part of the first defendant (the claimant, Mr Ali). There was evidence before the Assessor that suggested that the first defendant’s claimed impairment was exaggerated and, in so far as it did exist, was either or wholly or in part attributable to pre-existing injury or impairment.’
‘The plaintiff’s claim is, when reduced to essentials, that the Assessor did not properly determine the issue in dispute …as to the extent of any permanent impairment and its attribution.’
AAI took issue with the claimant’s reliability as an historian and the use of surveillance footage by the Assessor.
It was noted that Assessor Cameron had concluded that the claimant was ‘inconsistent with his presentation’ and that his mini-mental status examination did not produce a valid score due to severely abnormal results.
With respect to reliability, Her Honour noted:
‘There was, without doubt, a significant question over the validity of Mr Ali’s claim, in regard to both the origin and extent of permanent impairment. That would suggest that this was an aspect of the claim which had to be carefully considered during the assessment process and resolved on the basis of all relevant evidence. It also suggests that the need for both thoroughness and clarity in setting out the basis upon which a resolution of the matter was made. In my judgement, these things did not occur here.’
Her Honour specifically found that in circumstances where reliance is placed on a claimant’s self-reporting in an assessment, the issue of the claimant’s reliability becomes ‘an important feature of the assessment process.’
Given that ‘significant questions’ were raised regarding this claimant’s reliability, Her Honour found that significant consideration must be given to objective evidence, such as surveillance footage. In this regard, Her Honour held that Assessor Cameron’s Certificate did no more than refer to the existence of surveillance material, and Her Honour noted that ‘particularly having regard to the centrality of the issue of malingering to the proper resolution of the claim of impairment, more was required.’
Her Honour held:
‘The medical evidence fell to be assessed in the context of a deal of other evidence relevant to the reliability of (the claimant) as a witness, and the reliability of his wife in the same capacity. The reliability of (the claimant) in particular was an important feature of the assessment process, since parts of it required reference to and likely reliance upon subjective information from (the claimant). Clearly, unreliability in the latter could lead to illegitimacy in the former.’
In these circumstances, Assessor Cameron was under an obligation to provide sufficient reasons regarding his decision. Her Honour held:
‘Since the reliability of (the claimant’s) evidence was very much in dispute, and (as) there was independent evidence – including the mini mental status examination administered by Dr Cameron – that was capable of impugning (his) credibility, some explanation of the assessor’s reasoning process was required.
It is open to conclude that the evidence pointing to malingering was simply passed over, without being taken into account by the Assessor. Whilst that may or may not be so, in the absence of any account of the reasoning process undertaken by the Assessor, or of any account of the evidence accepted and rejected by him during the assessment, it is not possible to know the reality of the situation.
As assessment under the Act must be transparent. The failure to fully state the evidence taken into consideration, and the basis of the assessment made, amounts to an error of a sort amenable to judicial review’.
Her Honour concluded:
‘These errors establish a failure to consider all relevant evidence in accordance with the Assessor’s statutory obligations, and a failure to expose the reasons for the assessment decision pursuant to s.61 (9) of the Act.
These failures must invalidate the assessment.’
Her Honour therefore set aside the assessment as invalid and remitted the matter to a different medical assessor for determination of the matters according to law.
Given that the process of assessment undertaken by Assessor Cameron was invalid, it followed that the review decision of the Proper Officer was also invalid.
With respect to matters which can be considered in judicial review proceedings, Her Honour found that ‘the distinction between matters solely relevant to the merit or otherwise of a claim, and those relevant to the validity of a determination at law can be finely drawn and, at times, illusory. Inevitably, there is a degree of overlay of the one upon the other, particularly so since questions of decision making are inextricably linked to the evidence upon which the decision is based.’
Her Honour also held that AAI was correct in their approach by exhausting all avenues of internal review and bringing all claims for judicial review together in a court, as this was consistent with the just, quick and cheap resolution of matters (s. 56 Civil Procedure Act 2005 (NSW) and Rodger v De Gelder (2011) 80 NSWLR 594).
Application of the Decision
In circumstances where a MAS assessment relies, even in part, on a claimant’s subjective self-reporting, and questions have been raised regarding the claimant’s credibility, a MAS Assessor must provide reasons as to the acceptance or otherwise of the claimant’s evidence. These reasons must be thorough and clear.
In circumstances where reliability of the claimant’s evidence is in question, careful consideration must be made of all objective evidence, including any surveillance footage obtained of the claimant. Consideration of objective evidence falls within the Permanent Impairment Guidelines, and therefore the failure to do so will render a decision open to judicial review on the basis that the Assessor has failed to consider a relevant consideration.
Her Honour held that matters relevant to the merits of a claim and those relevant to the validity of a determination at law inevitably overlap. Therefore, matters relating to the merits of a claim can be raised in judicial review proceedings, particularly as the validity of an Assessor’s decision is inextricably linked to the evidence that she / he considers.
Authored by Peter Utiger, Partner, Newcastle.
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