Rahme v Bevan [2009] NSWSC 58
In Brief
- A Review Panel constituted under s 63 of the Motor Accidents Compensation Act 1999 is required to give adequate reasons for its decision under s 61(9).
Background
The Claimant alleged psychiatric injury as a consequence of witnessing a motor accident on 30 January 2002 when a pedestrian was struck by a vehicle driven on the incorrect side of the road at high speed whilst being pursued by a police vehicle. The pedestrian landed near the Claimant's feet and died at the scene.
The Claimant's psychiatric impairment was assessed by MAS Assessor McClure at 22% WPI.
The Insurer sought a review of Dr McClure's assessment under s 63(1) of the Motor Accidents Compensation Act 1999. The Insurer framed the alleged error, as follows:
"Assessor McClure failed to diagnose a psychiatric injury, rather, he expressed the view that `The Claimant may well have continuing features of Post Traumatic Stress Disorder' and Mr Rahme could well have continuing symptoms of Post Traumatic Stress Disorder" .
"This was a very difficult case for Assessor McClure which is seen by his comment, `He is, in my opinion feigning many of his symptoms'. Such a finding would have prevented the Assessor from making a diagnosis of Post Traumatic Stress Disorder.
A finding that the claimant did not sustain a psychiatric injury would alter the assessment of whole person impairment to less than 10%."
The Review Panel called for further information, including notes from his treating doctor and the clinical notes relating to each of the Claimant's admissions to a psychiatric hospital. The Review Panel also examined the Claimant itself.
During its examination of the Claimant, the Review Panel noted bizarre behaviour, including:
- Producing a Lebanese cucumber and chomping on it very loudly and offering the balance to the interpreter,
- Producing a pack of cards and starting to deal the interpreter into a game, and
- Standing in the corner of the room, opening his fly and attempting to urinate.
The Review Panel found material error in Dr McClure's assessment. As such the original Certificate of Assessment was revoked and a new Certificate was issued, stating that the Claimant suffered from no diagnosable psychiatric disorder.
The Claimant sought a declaration that the Review Panel denied him procedural fairness in that it failed to provide adequate reasons for its decision.
Supreme Court
The application for declaratory relief was heard by Patten JA.
Justice Patten noted that s 63(5) provided that "s 61 applies to any new certificate or new combined certificate" issued by the Review Panel and that the incorporation of s 61 brought with it the obligation for the Review Panel to set out the reasons for its decision. His Honour found that the Review Panel failed to provide reasons for its conclusion that the Claimant did not suffer from any diagnosable psychiatric disorder. At paragraph 32, Patten JA reasoned as follows:
"32 Nonetheless, approaching the task in the manner which I believe the authorities require, I am of the opinion that the reasons of the Review Panel fell well short of its obligation under s61 (9) of the Act. Nowhere, as it seems to me, does the Review Panel provide reasons for its apparent conclusion that Mr Rahme's bizarre behaviour wholly excluded any psychiatric illness. This is particularly significant, in my view, in a situation where other psychiatrists, including Dr McClure, have noted the same sort of presentation as Mr Rahme's presentation to the two members of the panel who interviewed him yet have felt able to diagnose a post traumatic stress disorder. In effect, contrary to virtually all of the medical material available, the Review Panel, as I understand it, decided that Mr Rahme wholly feigned, and has always wholly feigned, his symptoms. It was, of course, entitled to reach that conclusion but s61 (9) of the Act, in my opinion, required much more by way of reasoning than it provided."
At paragraph 33, Patten JA further explained:
"33 While I accept [the Insurer's] submission that the Review Panel was not obliged to provide reasons for excluding all the possible diagnoses which it identified, I do think it was, at least, bound to give brief reasons for excluding the diagnosis actually made by Dr McClure, beyond referring to Mr Rahme's presentation to two members of the panel. It needed to do no more than list the diagnostic criteria for post traumatic stress disorder and explain why Mr Rahme's symptoms did not meet those criteria. This, in my view, it quite failed to do."
For these reasons, Patten JA agreed that the Claimant was denied procedural fairness and allowed the relief sought.
Implications
In Rahme v Bevan, the Supreme Court confirmed that a Review Panel constituted under s 63 of the Act is required to give reasons for its decision under s 61(9).
The decision provides a useful illustration as to the scope of the obligation to give reasons in that the Supreme Court made it clear that whilst the reasons may be brief, they must fully expose the decision-maker's reasoning process. In this case, the Review Panel denied the Plaintiff procedural fairness by failing to fully explain why they did not accept the original MAS Assessor's diagnosis of post traumatic stress disorder.
Whilst Rahme dealt with the decision of a MAS Review Panel, it is notable that 94(5) obligates a CARS Assessor to also "attach a brief statement to the Certificate, setting out the Assessor's reasons for the assessment". Given the decision, in Rahme, a party to a CARS Assessment may argue that he or she was denied procedural fairness if a CARS Assessor fails to provide adequate reasons for his or her assessment of the issues in dispute.
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