AAI Limited trading as AAMI v Boga

[2020] NSWSC 1903

Supreme Court

New South Wales

Medium Neutral Citation:

AAI Limited (t/a AAMI) v Boga [2020] NSWSC 1903

Hearing dates:

13 November 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The time for the filing of the summons is extended until 29 May 2020.

(2) The amended summons is dismissed.

(3) The plaintiff to pay the first defendant’s costs.

Catchwords:

ADMINISTRATIVE LAW — Whether reviewable error of law — Jurisdictional error — Error of law on the face of the record — Injured person assessed for degree of permanent impairment under Motor Accidents Compensation Act 1999 (NSW) — Whether assessor failed to give reasons — "Nguyen principle" — Whether assessor failed to assess in accordance with the guidelines — Whether assessor bound to raise inconsistencies observed in earlier medico-legal reports — Where assessor observed no inconsistency — Whether denial of procedural fairness — Whether proper officer of the Authority applied the incorrect statutory test — Extension of time

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), Pt 3.4, ss 58, 60, 61, 62, 63, 131, 132, 133

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

AAI Limited v Fitzpatrick [2015] NSWSC 1108

Alchinv Daley [2009] NSWCA 418

Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22

Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284

Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280; [1993] FCA 456

Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171

IAG Ltd (t/as NRMA Insurance) v Chahoud [2019] NSWSC 767

Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Nguyen v Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351

Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127

Politis v Commissioner of Taxation (Cth) [1988] FCA 446; 20 ATR 108

Qushair v Raffoul [2009] NSWCA 329

Re Minister for Immigration and Multicultural Affairs; Ex Par Miah (2001) 206 CLR 57; [2001] HCA 22

Rodger v De Gelder & Anor (2011) 80 NSWLR 594; [2011] NSWCA 97

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed)

State Insurance Regulatory Authority, Motor Accidents Permanent Impairment Guidelines (2018), cls 1.6, 1.8, 1.9, 1.10, 1.17, 1.18, 1.41

Category:

Principal judgment

Parties:

AAI Limited (trading as AAMI) (Plaintiff)
Suleyman Boga (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Dr Kalev Wilding (in his capacity as a Medical Assessor on behalf of the Second Defendant) (Third Defendant)
Michelle Baci (in her capacity as the Proper Officer of the Second Defendant) (Fourth Defendant)

Representation:

Counsel:
J Catsanos SC (Plaintiff)
N E Chen SC with J de Greenlaw (Defendants)

Solicitors:
Moray & Agnew (Plaintiff)
Gerard Malouf & Partners (First Defendant)
Crown Solicitor’s Office (Second, Third and Fourth Defendants)

File Number(s):

2020/160831

Publication restriction:

None

Judgment

1. The plaintiff, AAI Limited (trading as AAMI), seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) in respect of decisions made under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) relating to the assessment of the degree of permanent impairment sustained by the first defendant in a motor vehicle accident on 13 July 2016.

2. The plaintiff is the licensed compulsory third party (“CTP”) insurer of the driver said to be at fault for the accident.

3. The plaintiff names four defendants being:

1. Suleyman Boga (“the injured person”);

2. the State Insurance Regulatory Authority (“the Authority”);

3. Dr Kalev Wilding — the medical assessor who assessed the injured person; and

4. Michelle Baci — in her capacity as the proper officer of the Authority.

4. The second to fourth defendants filed submitting appearances. The contest is between the plaintiff and the first defendant.

5. The plaintiff seeks the following orders in its amended summons filed 17 September 2020:

1. an order that the time for commencing these proceedings be extended;

2. orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act:

1. quashing the Medical Assessment Certificate of the third defendant dated 9 September 2019, and/or

2. quashing the decision of the fourth defendant dated 16 December 2019 dismissing the plaintiff’s application for review pursuant to s 63 of the MAC Act, and/or

3. quashing the decision of the fourth defendant dated 17 March 2020 declining to revisit her decision dated 16 December 2019; and

3. an order in the nature of mandamus that the matter be remitted to the second defendant for determination according to law.

Background

6. The first defendant, who is currently 34, was injured in a motor vehicle accident on 13 July 2016. As he was sitting in a stationary vehicle, that vehicle was struck from behind by another vehicle and his vehicle was pushed into the vehicle in front. The plaintiff, as the CTP insurer, has admitted liability.

7. As part of his claim, the first defendant seeks damages for non-economic loss. As set out in s 131 of the MAC Act, he is not entitled to damages for non-economic loss unless the degree of permanent impairment is greater than 10%.

8. There is a dispute as to whether the degree of permanent impairment is greater than 10%.

9. The third defendant, as the appointed medical assessor, assessed the first defendant as having a degree of permanent impairment greater than 10%. The plaintiff disagrees with that assessment.

10. Whilst the third defendant did not attribute any whole person impairment (“WPI”) to the cervical spine, the third defendant assessed WPI in the lumbar spine at 5%, WPI in the left shoulder at 5% and WPI in the right shoulder at 2%.

11. The plaintiff says that in assessing WPI in the right shoulder at 2%, the third defendant erred and that the fourth defendant should have acceded to its request to refer the matter to a review panel.

12. As will be apparent, if the third defendant had not attributed a 2% WPI in respect of the right shoulder (and attributed 0%) the total WPI would have been 10% and the first defendant would not have been entitled to any damages for non-economic loss.

The legislative scheme

13. Part 3.4 of the MAC Act applies to a disagreement between a claimant and an insurer about any matters which are defined as medical assessment matters: MAC Act s 58.

14. A medical assessment matter is defined in s 58 and includes disagreement about “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”

15. For the purposes of the Part, the Authority is required to appoint medical practitioners to be medical assessors. The Authority must be satisfied that persons who are appointed as assessors have the requisite expertise for the task for which they are appointed.

16. An assessor will normally assess matters such as causation and permanent impairment and will issue a certificate which is conclusive evidence of the matters set out in the certificate: MAC Act ss 60, 61(1)–(2).

17. As set out in s 61(9) of the MAC Act, the assessor must set out in the certificate the reasons for any finding as to any matter certified in the certificate in respect of which a certificate is conclusive evidence.

18. As required by s 132, the assessment of the degree of impairment must be undertaken in accordance with the method set out in s 133. For the purposes of this matter, it is only necessary to say that:

1. The assessment of the degree of permanent impairment is to be expressed as a percentage; and

2. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accidents Medical Guidelines (“the guidelines”) issued for that purpose or, if there are no such guidelines in force, the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

19. Further, a matter already referred to assessment may be referred again on one or more further occasions but only on the grounds of a deterioration of the injury or additional relevant information about the injury which is capable of having a material effect on the outcome of the previous assessment: MAC Act s 62.

20. The parties to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment by a single medical assessor to a panel of medical assessors for review. The proper officer may only arrange for the application to be referred to a review panel if the proper officer is satisfied that there is reasonable cause to suspect that the assessment was incorrect in a material respect: MAC Act s 63(2).

The nature of the dispute

21. There was a dispute as to permanent impairment. The Authority appointed Dr Michael Fearnside to carry out an assessment. He certified the degree of permanent impairment as 19%.

22. Thereafter, the plaintiff obtained its own reports from Dr Harvey and a further report from Dr Menogue, who had already seen the first defendant on behalf of the plaintiff. Dr Harvey opined that the first defendant had no permanent impairment at all. Dr Menogue certified 4%.

23. The plaintiff then sought appointment of a further assessor.

24. On 19 July 2019, the proper officer determined that the application would be referred for a further medical assessment. She did so on the basis that there was additional relevant information such as to be capable of having a material effect on the outcome of the previous assessment as required by s 62(1A) of the MAC Act.

25. The further assessment was referred to Dr Wilding who then assessed the first defendant and issued his certificate on 9 September 2019.

26. Thereafter, on 16 October 2019, the plaintiff lodged an application for review of that medical assessment and the first defendant lodged a reply on 15 November 2019.

27. On 16 December 2019, the proper officer issued a statement of reasons for the decision to reject the application for review. The proper officer was not satisfied that there was reasonable cause to suspect that the medical assessment of Dr Wilding was incorrect in a material respect.

28. Then on 15 January 2020, the plaintiff requested that the proper officer review the decision. The first defendant made submissions in response.

29. On 17 March 2020, the proper officer declined to review her earlier decision on the basis that there was no power for her to review her own decision.

30. Thereafter, the plaintiff filed the original summons on 29 May 2020.

The plaintiff’s submissions

31. The primary complaint of the plaintiff is that Dr Wilding failed to follow the guidelines in undertaking his assessment and that he failed to give adequate reasons for assessing permanent impairment in the right shoulder at 2%.

32. It is said that Dr Wilding failed to deal with inconsistencies which must have been apparent from the earlier reports and failed to properly consider causation as required by the guidelines. He did not engage with the dispute and failed to explain the basis of his assessment other than by referring to the Nguyen principle. [1]

    1. Nguyen v Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351.

33. In para 30 of its submissions, the plaintiff submits:

“In undertaking his assessment of the first defendant’s permanent impairment, the Assessor was bound to apply the Guidelines, to otherwise consider relevant material and to provide adequate reasons.”

34. It is further asserted that the failure of Dr Wilding to refer to the other material before him and, in particular, the documented anomalies and concerns as to the first defendant’s reliability meant that Dr Wilding had failed to have proper regard to a relevant consideration. In this regard, the plaintiff again refers to the guidelines at clauses 1.40 and 1.41, which require the assessor to have full regard to his clinical skill and judgment in determining whether the clinical results are plausible.

35. Mr Catsanos SC on behalf of the plaintiff placed emphasis on the report of Dr Menogue, suggesting that he was “probably the greatest medical advocate in this case as to why Nguyen has no application”. However, Mr Catsanos also went on to say:

“I accept that Dr Menogue interprets Nguyen to require some element of radiculopathy or neurological component. That may or may not be right, I don’t advance it. But it makes the point that you need more than just having history that I have pain.”

36. Mr Catsanos also submitted:

“What we say Dr Wilding hasn’t done in this case is responded to a substantial argument … [H]ere, the whole purpose of this assessment is to arbitrate a dispute about whole person impairment.”

37. As the plaintiff submits, the problems with Dr Wilding’s assessment were then brought to the attention of the proper officer for the purposes of the proper officer determining whether the assessment of Dr Wilding was incorrect in a material respect. It is submitted that the proper officer should have so found and referred the matter to a review panel.

38. It is submitted that having regard to s 63(3) of the MAC Act, the proper officer acts as a gatekeeper. The function of the proper officer is not to determine whether the medical assessment was incorrect in a material respect but only whether there is a reasonable cause to suspect such error.

39. Further, it is said that the errors of law and jurisdictional errors committed by the assessor, Dr Wilding, were such that the proper officer in turn committed jurisdictional error in failing to find that the assessor erred.

40. Finally, the plaintiff submits that the proper officer erred in not revisiting her decision in accordance with the principle set out in Minister for Immigration and Multicultural Affairs v Bhardwaj. [2]

    2. (2002) 209 CLR 597; [2002] HCA 11.

41. Having said that, during submissions the plaintiff accepted that, if it could not establish error in the original decision of the proper officer or, indeed, the approach of the medical assessor, then there would be no utility in the challenge to the refusal of the proper officer to revisit her decision. It is not necessary to consider that issue further.

The first defendant’s submissions

42. The first defendant submits that the complaint about the guidelines is not articulated, save from a generalised assertion in relation to causation.

43. Further, the first defendant submits that there is no basis for the plaintiff’s contention that Dr Wilding failed to have regard to the reliability of the first defendant’s clinical presentation. Rather, the contention can only be that he considered the issue only briefly, that is, in insufficient detail. The first defendant submits that this does not provide any basis for the assertion of a failure to consider a relevant consideration.

44. Further, the first defendant submits that there was no obligation on Dr Wilding to set out in his reasons the substance of all of the evidence before him.

45. The matters referred to in reports obtained by the plaintiff did not constitute mandatory relevant considerations. All that Dr Wilding was required to do was to conduct an assessment in accordance with the requirements of s 61.

46. In terms of the first decision of the proper officer dated 16 December 2019, the first defendant submits that there has been no breach of the natural justice hearing rule or any constructive failure to exercise jurisdiction. It is submitted that there has been no failure of procedural fairness.

47. Further, the first defendant submits that the plaintiff’s contention that the proper officer determined the issue, rather than merely considering whether there was reasonable cause to suspect, is contrary to the express words used by the proper officer.

Consideration

48. Medical assessors perform a statutory function. The statutory function of the medical assessor is to make an assessment in accordance with Part 3.4 of the MAC Act.

49. There is a medical assessor code of conduct which governs the conduct of medical assessors appointed pursuant to Part 3.4. The medical assessor must perform his or her assessment responsibilities independently. He or she must abide by the principles of procedural fairness.

50. In the circumstances of this matter, Dr Wilding was appointed to carry out a further medical assessment because the proper officer was satisfied that there was additional relevant information about the injury which was capable of having a material effect on the outcome of the previous assessment by Dr Fearnside.

51. However, the role of the medical assessor does not change because of the circumstances of the appointment. Section 62 of the MAC Act merely specifies that the certificate of the latter or second assessor prevails over the earlier certificate. Dr Wilding’s certificate thus prevails over Dr Fearnside’s certificate but their roles were the same.

52. It is important to be mindful of the statutory function of the medical assessor. He is not arbitrating a dispute other than in the sense of offering a medical opinion as to the permanent impairment of the injured person (in the context of this matter).

53. The starting point is a consideration of Dr Wilding’s assessment.

54. Dr Wilding carried out his medical assessment on 9 September 2019. He issued a certificate in the following terms:

“The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%:

● Cervical spine — musculoligamentous strain and aggravation of pre existing degenerative change

● Lumbar spine — musculoligamentous strain

● Left shoulder — tendonitis of the rotator cuff and bursitis

● Right shoulder — Ngyuen Principle”

55. As set out in para 1 of his report, he correctly identified that there was a dispute whether the degree of permanent impairment of the injured person, as a result of injury caused by the motor accident, was greater than 10%.

56. Further, in para 2, he noted that he had seen and considered the file relating to the previous medical assessment service (“MAS”) and considered the further MAS application forms and supporting documents.

57. He noted that he had previously seen the first defendant for assessment regarding his left knee. He did not carry out any further assessment of the left knee.

58. He then outlined the first defendant’s pre-accident medical history and relevant personal details, the history of the motor accident, the history of symptoms and treatment following the motor accident and the first defendant’s current symptoms and treatment.

59. He then set out his findings on examination and provided a review of the documentation before setting out his conclusions and determinations.

60. In respect of the right shoulder, Dr Wilding:

1. Referred to the earlier surgery to the right shoulder undertaken in 2005 and the history provided to the plaintiff that it had taken 12 to 18 months thereafter for the right shoulder to recover;

2. Stated, in respect of the circumstances of the collision:

“At impact Mr Boga said that he was thrown forwards and backwards in his seat and his left knee was “jolted”. He immediately experienced neck pain which radiated into both trapezii and both shoulders and down the posterior aspect of both thighs.”

3. Stated, in respect of the continuation of symptoms:

“He continued to experience neck pain which radiated into both trapezii and posterior aspect of both arms down to the elbow. It was not in a radicular pattern. He also experienced low back pain which radiated down the posterior aspect of both thighs.”

4. Stated, in respect of current symptoms:

“Mr Boga complained that he experienced constant neck pain which radiated into both trapezii and both shoulders. He intermittently experienced pain which radiated down the posterior aspect of the upper arm on both sides to the elbow. It was not in a radicular pattern.”

5. Further stated:

“Elevation of the right shoulder resulted in pain in the region of the right trapezius muscle and lower neck. It did not result in any local pain in the right shoulder.”

6. Noted, in respect of his examination of the right shoulder:

“Examination of the right shoulder revealed healed arthroscopy puncture wounds. There was no wasting. The shoulder was non tender. The impingement sign was negative, although maximal internal rotation did elicit slight discomfort in the shoulder. … It should also be noted that maximal elevation of the right shoulder elicited discomfort in the right trapezius muscle and to a [lesser] extent in the neck. I do not consider there is any local pathology in the right shoulder and it will be assessed according to the Nguyen Principle.”

61. Dr Wilding then measured the active range of motion in both shoulders and detailed the range of motion in a table.

62. In respect of consistency of presentation, he said:

“There was no inconsistency in the presentation. Mr Boga related his history in a forthright manner and I did not consider that he attempted to embellish his symptoms nor did I consider that he attempted to embellish his signs.”

63. Dr Wilding then referred to his review of the relevant documentation in what might be considered a quite detailed review, having regard to these types of reports. He referred to the notes and records of the treating doctor, as well as medico-legal reports from Dr Dryson, Dr Menogue, Dr Bodel and Dr Harvey. He referred to the earlier medical assessment of Dr Fearnside.

64. He paid particular attention to Dr Harvey’s report, referring to Dr Harvey’s conclusion that the restriction of active flexion of both shoulders was not evidence of any muscular skeletal injury and that the loss of elevation was not a valid parameter for assessment of impairment.

65. Further, Dr Wilding specifically referred to both the plaintiff’s submissions to the effect that the assessment of Dr Fearnside was not a valid determination and the first defendant’s submissions relating to the opposition of the referral for further assessment.

66. Under the heading “Diagnosis and Conclusion”, Dr Wilding said:

“Mr Boga was involved in a MVA on 13/7/16 in which he sustained flexion extension injury of the cervical and lumbar spine. He has referred pain from the cervical spine into both shoulders and both upper arms but the referred pain is not in a radicular pattern. He also has symptoms referrable to both shoulders but I do not consider that there is any local pathology in the right shoulder. Maximal elevation of the right shoulder aggravated his neck pain and as such will be assessed according to the Nguyen Principle.”

67. Dr Wilding then listed the injuries that he considered were caused by the accident and listed the injuries that he considered were not caused by the accident.

68. In respect of the right shoulder, he considered that there was no injury caused by the accident and stated as follows:

“Summary of Injuries Listed by the Parties and Not Caused by the Accident

The following injuries WERE NOT caused by the motor accident:

● Right shoulder — soft tissue injury and / or referred impairment from the cervical spine

There is no local pathology in the right shoulder as a consequence of the MVA. However maximal elevation of the right shoulder his neck symptoms and as such will [be] assessed according to the Nguyen Principle.”

69. However, Dr Wilding then went on to conclude that the impairment of the right upper extremity was 4% which equates to 2% of WPI and that there was no deduction in respect of prior surgery to the right shoulder.

70. He then set out a table demonstrating how the total WPI of 12% was calculated:

“Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1.	Cervical spine	Ch 3, Pg 103 in AMA 4 – DRE I	Yes	0%	0	0%
2.	Lumbar spine	CH 3, Pg 102 in AMA 4 – DRE II	Yes	5%	0	5%
3.	Left shoulder	Figs 38, 41, 44, Ch 3, Pgs 43–45 in AMA 4 Table 3, Ch 3, PG 20 in AMA 4	Yes	5%	0	5%
4.	Right shoulder (Nguyen Principle)	Figs 38, 41, 44, Ch 3, Pgs 43–45 in AMA 4 Table 3, Ch 3, PG 20 in AMA 4	Yes	2%	0	2%

*%WPI = percentage whole person impairment”

71. The controversy in this matter relates to the basis on which Dr Wilding assessed 2% permanent impairment of the right shoulder in circumstances in which he found that there was no injury in the right shoulder caused by the accident.

Reasons

72. In Wingfoot Australia Partners Pty Ltd v Kocak,[3] the Court held:

“[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

3. (2013) 252 CLR 480; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).

73. The Court also emphasised that a medical panel explaining the path of reasons is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

74. This seems to be of significance in this matter as the gravamen of the plaintiff’s complaint is that it obtained reports from Doctors Harvey and Menogue and Dr Wilding did not adequately explain why he took a different view to those doctors, instead, referring in a shorthand way to the Nguyen principle.

75. Importantly, as was observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[4] the reasons of an administrative decision-maker are not to be scrutinized by overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. They are not to be construed minutely and finely with an eye keenly attuned to the perception of error. [5]

    4. (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).

    5. Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456; Politis v Commissioner of Taxation (Cth) [1988] FCA 446; 20 ATR 108 at 111.

76. In Campbelltown City Council v Vegan & Ors,[6] Basten JA observed that to fulfil a minimum legal requirement, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment. However, the extent and content of the reasons will depend on the issues under consideration. [7]

    6. (2006) 67 NSWLR 372; [2006] NSWCA 284 at [122]. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273–274.

    7. Alchin v Daley [2009] NSWCA 418 at [35] (Sackville AJA, McColl and Young JJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] (Sackville AJA, Campbell JA and Bergin CJ in Eq agreeing).

77. In my view, the focus of the plaintiff on Dr Wilding’s reference to the Nguyen principle rather ignores the balance of the doctor’s report. The reference to the Nguyen principle must be considered in the context of the report as a whole.

78. Dr Wilding measured the active range of motion in the right shoulder and found restriction. He referred to the medical records of the treating doctor, Dr Abdullah, to the effect that there was neck pain radiating into both shoulders, as he said in conclusion, as maximal elevation to the right shoulder aggravated his neck pain.

79. Dr Wilding thus recorded the history in respect of an injury and the pre-existing surgery to the right shoulder, his conclusion that there was no local pathology in the right shoulder and that he did not injure the right shoulder in the accident. Other than the short-hand statement that permanent impairment of the right shoulder will be assessed according to the Nguyen principle, I have difficulty understanding what more Dr Wilding could have said about the right shoulder in giving reasons for his assessment.

80. It is agreed that the Nguyen principle, as referred to by Dr Wilding, is a reference to the decision of Hall J of this Court in Nguyen v Motor Accidents Authority of New South Wales & Anor. [8]

    8. [2011] NSWSC 351.

81. As the plaintiff submits, the outcome in Nguyen is not remarkable in the sense that his Honour said little more than that establishing direct physical injury to a body part is not necessary to give rise to an impairment in that part.

82. The degree of impairment of the injured person is not limited to a particular part of the body which was actually injured in the accident. This is not a novel proposition. Indeed, it follows from the text of s 58(1)(d).

83. Indeed, in Dominice v Allianz Australia Insurance Ltd,[9] Simpson JA referred to the statement of Hall J in Nguyen at [99] and observed:

“[56] The characterisation of this paragraph as a statement of ‘principle’ is, in my opinion, an overstatement; it is a statement of fact. It simply acknowledges what medical practitioners (and legal practitioners and judges who engage in the world of personal injury litigation) have come to know, that injury to one part of the body can cause pain to other parts of the body. It remains necessary, in any individual case, to determine whether, in the circumstances of the individual case under consideration, the secondary injury is caused by or related to the primary injury.”

9. [2017] NSWCA 171 at [56].

84. Dr Wilding’s reference to the Nguyen principle is not a correct characterisation of the observations of Hall J in Nguyen (as it is not a principle), but I take the reference to be nothing more than a shorthand way of saying that there was impairment, even though there was no injury to the right shoulder. There is nothing novel about such a proposition and, if Dr Wilding had expressed “the principle” with reference to that simple explanation, there could have been no complaint.

85. The complaint could only be that the reference to “the principle does not in itself explain how he came to the view that there was permanent impairment in the right shoulder”. This ties in with the plaintiff’s submission relating to causation.

86. The task of the medical assessor is to assess the degree of permanent impairment which results from the injury caused by the accident. “Results from” connotes a less direct casual connection than “caused by”.

87. It was not necessary for Dr Wilding to specify what he did not find or what he did not accept. Having regard to his findings on examination and opinion as to the relationship between the impairment in the shoulder and an injury sustained in the accident, he reached a conclusion that the first defendant suffered a level of impairment in the right shoulder. He referred to and considered whether it was permanent.

88. That is a medical opinion. He has expressed that medical opinion. He has provided reasons for that opinion. It is not the function of the Court on an application such as this to form its own opinion as to the correctness of that medical opinion.

89. This case falls into the category of those cases where it may be that on reflection Dr Wilding could have expressed his opinion more directly or using other words, but that does not lead to the conclusion that he has failed to give adequate reasons. Medical assessors should not be held to a counsel of perfection when expressing their views on medical matters.

90. Reading the reference to the Nguyen principle in context and having regard to the whole of the report tends to negate the contentions of the plaintiff as to the adequacy of the reasons.

Failure to assess in accordance with the guidelines

91. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accidents Medical Guidelines: MAC Act s 133(2)(a).

92. In Dominice v Allianz Australia Insurance Ltd at [8], Basten JA observed (with respect to an earlier version of the guidelines):

“[8] … The Guidelines were formulated in broad language and were directed to those responsible for undertaking medical assessments. Their operation was pre-eminently a matter for the proper officer to determine; there was no reason to suppose that the true construction of the Guidelines was something intended by the legislature to be determined by a court. Accordingly, even if the officer gave an interpretation or operation to cl 1.43 which was not the only available reading, that would not of itself reveal reviewable error.”

93. The Motor Accidents Permanent Impairment Guidelines effective from 1 June 2018 apply, as those guidelines apply to motor accidents which occurred between 5 October 1999 and 30 November 2017.

94. The assessor is required to make a finding as to the injury caused by the motor accident and then assess the degree of permanent impairment of the injured person as a result of the injuries.

95. As specified in Guideline 1.6, this involves a medical decision and a non-medical informed judgment.

96. There is no challenge to the determination as to which injuries were caused by the accident.

97. Again, the complaint could only be that Dr Wilding did not follow Guideline 1.6 in assessing why the impairment in the right shoulder resulted from an injury sustained in the accident.

98. However, other than so submitting that he did not follow Guideline 1.6, there is really no identification of why this must be so. I apprehend that the real complaint is again that, having regard to its own contrary evidence, Dr Wilding has not engaged with the competing position and explained why he adopted a different view.

99. Any reference to Guideline 1.6 (causation) must be read in the context of the other guidelines and in the context that the interpretation of the guidelines is generally a matter for the assessor.

100. Having regard to the issues raised by the plaintiff, regard should be had to Guidelines 1.8, 1.9 and 1.10, which are in the following terms:

“1.8 It is critically important to clearly define the term impairment and distinguish it from the disability that may result.

1.9 Impairment is defined as an alteration to a person’s health status. It is a deviation from normality in a body part or organ system and its functioning. Hence impairment is a medical issue and is assessed by medical means.

1.10 This definition is consistent with that of the World Health Organisation (WHO) International Classification of Impairments, Disabilities and Handicaps, Geneva 1980, which has defined impairment as ‘any loss or abnormality of psychological, physiological or anatomical structure or function.’”

101. Further, Guidelines 1.17 and 1.18 are in the following terms:

“1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment:

1.17.1 is an impairment arising from an injury caused by the accident, and

1.17.2 is an impairment as defined in clause 1.9 above.

1.18 An assessment of the degree of permanent impairment involves three stages:

1.18.1 a review and evaluation of all the available evidence including:

● medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)

● medico-legal reports

● diagnostic findings

● other relevant evidence

1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and

1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.”

102. There is no evidence that Dr Wilding did not follow and properly apply these guidelines. It is not suggested by the plaintiff that Dr Wilding erred in his function by not following Guidelines 1.8–1.10. Further, it is clear from his report that he undertook the three steps required by Guideline 1.18.

103. In my view, Dr Wilding has adequately set out why he accepted that there was associated impairment in the right shoulder. As a matter of medical opinion, Dr Wilding accepted the relationship between an injury caused by the accident and the impairment of the right shoulder. He accepted that there was a permanent loss of function in the right shoulder resulting from an injury caused by the motor accident. The plaintiff has not established that Dr Wilding failed to follow Guideline 1.6.

104. Further, I do not consider that there has been any failure to apply Guideline 1.41 such as to lead to judicial review.

105. Guideline 1.41 is in the following terms:

“1.41 Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

106. The plaintiff refers to the observations of Basten JA and Simpson JA in Dominice v Allianz Australia Insurance Ltd and the observations of Walton J in Insurance Australia Group Limited t/as NRMA Insurance v Saraceni. [10]

     10. [2020] NSWSC 1045.

107. However, it seems to me that both cases may be distinguished. Further, the observations in Dominice v Allianz Australia Insurance Ltd do not go so far as the plaintiff contends.

108. It is the plaintiff’s contention that, having regard to Guideline 1.41, Dr Wilding was bound to raise the inconsistencies between the findings of Doctors Harvey and Menogue and his own examination, even though Dr Wilding stated that he did not find any inconsistency during his examination. Nor did he observe any inconsistency in the non-clinical setting as referred to in Guideline 1.41.

109. It could not be doubted that Dr Wilding considered the reports of Doctors Harvey and Menogue. He has complied with the obligation to take account of earlier reports and records.

110. However, the plaintiff submits that there is no indication that Dr Wilding brought antecedent inconsistencies, that is, found by the doctors retained by the plaintiff, to the first defendant’s attention. It is thus suggested that the checks and balances contained within the guidelines were not observed.

111. I do not consider that the absence of any reference to Dr Wilding bringing such inconsistencies to the specific attention of the first defendant means that the assessor has failed to follow that guideline or that the plaintiff has been denied procedural fairness.

112. Whilst I accept that in Dominice at [61], Simpson JA suggested that this guideline operates to avoid unfairness both to claimants and insurers, I do not accept that the guideline should be construed in the way suggested by the plaintiff.

106. Her Honour merely observed that the second assessor in that matter (who observed inconsistencies on presentation) was bound to investigate the discrepancies having regard to his findings and the earlier assessment.

107. The plaintiff’s point in this matter is somewhat different. The plaintiff submits that even though Dr Wilding did not observe or find inconsistencies, having regard to Guideline 1.41, he was bound to investigate the alleged inconsistencies found by other medico-legal experts by raising them with the first defendant.

108. Guideline 1.41 refers to inconsistency between the medical assessor’s clinical findings (that is, the findings of Dr Wilding) and information obtained through medical records and/or observations and non-clinical activities.

109. There are no inconsistent “observations of non-clinical activities” by Dr Wilding in this matter. Further, unlike in Dominice v Allianz Australia Insurance Ltd, the second assessor in this matter (being Dr Wilding) did not find inconsistencies in his examination.

110. The fairness point referred to in Dominice v Allianz Australia Insurance Ltd would hardly require an assessor to ask the injured person to explain why an earlier assessor or practitioner recorded different findings and observations that were not apparent to the assessor. In circumstances in which the assessor observed no inconsistencies, I doubt that the assessor was required to raise the findings of other medico-legal experts during his own examination of the injured person.

111. This might be best demonstrated by a consideration of Dr Harvey’s report and his treatment of the right shoulder complaint. As set out in the report, the first defendant did complain of restriction of movement in the right shoulder to the doctor. However, Dr Harvey did not accept that which the plaintiff said as, according to Dr Harvey, the first defendant demonstrated unrestricted movement (or nearly) when asked to perform some other test. Dr Harvey’s recording of restriction of movement in the right shoulder is thus based on his “practical” assessment, meaning without regard to what the plaintiff actually demonstrated when asked to move his shoulder.

112. This was not an inconsistency observed by Dr Wilding either in the clinical or non-clinical setting. Bearing in mind that the plaintiff reported restriction of shoulder movement to Dr Harvey, it is difficult to understand what Dr Wilding might have raised with the first defendant about Dr Harvey’s examination and findings.

113. Of course, there is nothing in Dr Harvey’s report which leads to the conclusion that Dr Harvey put this suggested inconsistency to the first defendant.

114. If Guideline 1.41 were to be construed in the way suggested by the plaintiff, it would be necessary for a medical assessor to take an injured person through the earlier opinions and findings of other medico-legal practitioners and offer the injured person an opportunity to respond to what other doctors said and found. For example, Dr Wilding would be required to ask the first defendant why he reported to Dr Harvey with a level of restriction in his right shoulder when he was later observed by Dr Harvey to be able to move his right shoulder to a much greater extent.

115. The guidelines must be given practical application. Unless there is procedural unfairness in the approach of the assessor, the Court should not intervene in an assessor’s application of the guidelines on matters of medical opinion and expertise.

116. An assessor such as Dr Wilding must consider those earlier reports as Dr Wilding plainly did but, in my view, undertaking an assessment in accordance with the guidelines does not impose an obligation on the assessor to do that which the plaintiff submits.

117. Indeed, the example of the type of inconsistency which should be raised with an injured person set out in Guideline 1.41 tends to support my view.

118. I am mindful of the approach adopted by Walton J in Insurance Australia Group Limited t/as NRMA Insurance v Saraceni but again that case is different. Unlike in that case, the second assessment was generally consistent with the first assessment and the second assessor did not find any internal inconsistencies. The point in Insurance Australia Group Limited t/as NRMA Insurance v Saraceni was that an assessor who found inconsistencies must give the injured person an opportunity to respond to such inconsistencies, even with reference to earlier medico-legal reports.

119. Guideline 1.41 is intended to ensure fairness to both the injured person and the claimant by requiring the medical assessor to bring matters of concern in the nature of inconsistencies to the injured person. This fairness principle is emphasised by the last sentence in Guideline 1.41: “The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

120. The reference to giving the injured person an opportunity to respond to the inconsistent observations is a reference to the inconsistent observations of the assessor undertaking the examination. In this matter, Dr Wilding did not observe inconsistencies.

121. Reference was also made to AAI Limited v Fitzpatrick [11] but nothing in that case detracts from my view. There is a difference between an obligation to have regard to and take account of earlier reports and records and failing to afford procedural fairness by not raising certain things directly with the injured person for comment.

     11. [2015] NSWSC 1108 at [27]–[31].

122. Further, even if it could be said that Dr Wilding was required to put the different findings and inconsistencies between examinations to the first defendant as part of the process of assessment of permanent impairment, such failure would not “realistically have resulted in a different decision”. [12]

     12. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [30].

123. Of course, the Court should not engage in speculation whether the outcome would have been the same,[13] but it remains necessary for there to have been some practical injustice to the plaintiff or lack of procedural fairness before I would quash the decision.

     13. Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127 at [43]; Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [74] and [135].

124. There is a danger in allowing the medical assessment process to become an exercise in analysis of competing medico-legal reports obtained by the claimant and the insurer. It could not have been the purpose of the MAS system that medical assessors are required to explain or justify their assessments with reference to every competing medico-legal opinion.

The decision of the proper officer dated 16 December 2019

132. The proper officer’s determination is as follows:

“I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect. Accordingly, the review application is dismissed.”

133. Despite the proper officer referring correctly to s 63 of the MAC Act in her determination, the plaintiff submits that the proper officer did not in fact carry out the correct enquiry but she rather determined that the medical assessment was not incorrect in a material respect; that is, she applied the incorrect statutory test.

134. The plaintiff submits that the proper officer acts as a gatekeeper and that a matter should be referred for medical review if the proper officer is satisfied only that there is reasonable cause to suspect error rather than that the medical assessment was actually incorrect in a material respect.

135. Despite her determination as to there being no reasonable cause to suspect material error, it is submitted that in reaching that conclusion, the proper officer actually determined each of the matters in dispute between the plaintiff and the first defendant rather than considering whether the complaints were reasonably arguable.

136. It is submitted in those circumstances she committed jurisdictional error of the type referred to in Re Minister for Immigration and Multicultural Affairs; Ex Par Miah. [14] She also failed to provide proper reasons.

     14. (2001) 206 CLR 57; [2001] HCA 22.

137. The first defendant submits that the duty to give reasons is one to be discerned from the statute and that the MAC Act does not expressly impose an obligation on the proper officer to give reasons.

138. Further, even if there was a statutory obligation to give reasons, the proper officer set out the basis of her conclusion.

139. The first defendant submits that the test of “reasonable cause to suspect” establishes the degree of satisfaction the proper officer must reach before referring the matter to a review panel that it does not change the substantive content of the enquiry. The substantive enquiry is into the identification of material error.

140. As was observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[15] the limited role of the Court in reviewing the exercise of administrative discretion must constantly be borne in mind.

     15. (1986) 162 CLR 24 at 40; [1986] HCA 40.

141. The decision of the proper officer is an evaluative one and the grounds on which the Court might review such a decision are narrow. It is the proper officer who must be satisfied that there was reasonable cause for suspicion that the first certificate was incorrect in a material respect.

142. Again, as was said in Dominice at [64], the jurisdictional fact that triggers the power in the proper officer to refer an assessment to a review panel is the proper officer’s satisfaction of the existence of reasonable cause for suspicion; not the existence of a reasonable cause for suspicion as evaluated by the Court. It is plain that the proper officer was not satisfied that there was a reasonable cause for suspicion.

143. There is an inconsistency in the plaintiff’s argument on the proper officer’s decision. It said that there is jurisdictional error because the proper officer did not engage with the argument but it is also said that the proper officer committed error in seemingly engaging with the argument too much; that is, by determining the outcome.

144. The proposition that the proper officer misdirected herself as to the application of relevant legal principle and applied the wrong statutory test is contradicted by the express wording of the proper officer’s decision and the references to the correct test in the decision. It may be that the bar is somewhat lower than that which might be required in determining whether there was material error but consideration of whether there is reasonable cause to suspect is not an uneven or one-sided process, in the sense of only considering one party’s arguments. It is necessary for the proper officer to consider both party’s arguments and form a view as to whether there is reasonable cause for suspicion.

145. I do not accept that the proper officer applied the wrong test.

146. Of course, as I have not accepted the plaintiff’s submissions in respect of the guidelines, the plaintiff’s other challenges would fall away.

147. Mr Catsanos tended to accept that the plaintiff would be on shaky ground in challenging the proper officer’s decision if the decision of assessor is not set aside. I agree. It is not necessary to consider further the plaintiff’s contentions in respect of the decision of the proper officer. Even if there is a statutory duty to provide reasons, no error has been demonstrated in the reasons.

148. Similarly, the plaintiff does not press any challenge to the decision of the proper officer dated 17 March 2020 declining to review the decision of 16 December 2019.

Extension of time

149. As set out in the Uniform Civil Procedure Rules 2005 (NSW), rr 59.10(1)–(2), proceedings for judicial review must be commenced within three months of the date of the decision, although there is a discretion to extend time.

150. When the summons was filed on 29 May 2020, the three-month period had expired.

151. The plaintiff submits that in circumstances in which the Court may decline prerogative relief when an applicant has not exhausted available appeal or review rights[16] and as the first defendant does not identify any prejudice, leave should be granted.

     16. Rodger v De Gelder & Anor (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91]–[92].

152. Whilst the first defendant submits in his written submissions that leave should not be granted, his oral submissions were somewhat less emphatic.

153. I adopt the approach of Bell P in IAG Ltd (t/as NRMA Insurance) v Chahoud. [17] That is, the delay is explained by the plaintiff’s actions in seeking that the proper officer further review her decision. The summons was filed within three months of the third decision, which it seeks to challenge in these proceedings, albeit, it was unnecessary to challenge that decision having regard to the way in which the case was conducted.

     17. [2019] NSWSC 767 at [54].

154. In my view, the plaintiff’s claim was arguable and it is in the interests of justice that the plaintiff be granted an extension of time to commence these proceedings up to and including the date on which the original summons was filed, being 29 May 2020.

Conclusion

155. In the circumstances, I order that:

1. The time for the filing of the summons is extended until 29 May 2020.

2. The amended summons is dismissed.

3. The plaintiff to pay the first defendant’s costs.

156. Should either party seek a variation of the costs orders, I grant leave to apply on three days’ notice.

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Endnotes

Decision last updated: 24 December 2020