Ali v AAI Limited

[2016] NSWCA 110

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ali v AAI Limited [2016] NSWCA 110

Hearing dates:

29 April 2016

Decision date:

16 May 2016

Before:

Basten JA at [1];
Leeming JA at [74];
Simpson JA at [100]

Decision:

(1)   Allow the appeal and set aside orders 2-5 made in the Common Law Division on 4 August 2015.

 

(2)   In place thereof dismiss the summons filed on 28 January 2014.

 

(3)   Order that the plaintiff pay the costs of the first defendant (Abbas Ibrahim Ali) in the Common Law Division.

 (4)   Order that the first respondent (AAI Ltd) pay the appellant’s cost in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – review of certificate of medical assessor – scope of statutory duty to give reasons – extent of reference to large volume of material supplied by parties – relevant consideration – obligation to consider matters identified by statute – obligation to consider material supplied by parties – irrelevant consideration – whether “unreliable” evidence to be completely disregarded

 

TORTS – motor vehicle accident – assessment of damages – claim for non-economic loss – certificate as to degree of permanent impairment – assessment by medical assessor – operation of Part 3.4, Motor Accidents Compensation Act 1999 (NSW)

  STATUTES – legal status of Motor Accident Authority Guidelines – whether the Guidelines have the force of delegated legislation – whether a breach of the Guidelines amounts to judicially reviewable error

Legislation Cited:

Accident Compensation Act 1985 (Vic), s 68
Interpretation Act 1987 (NSW), ss 40, 41
Motor Accidents Compensation Act 1999 (NSW), ss 44, 45, 57, 58, 61, 63, 65, 94, 106, 131, 133
Poisons and Therapeutic Goods Act 1966 (NSW), ss 8, 37, 46
Professional Standards Act 1994 (NSW), s 13
Statutory and Other Officers Remuneration Act 1975 (NSW), Pt 3, s 19A
Stock Medicines Act 1989 (NSW), ss 46, 47
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), Pt 59, r 59.4

Cases Cited:

Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

M Aronson and M Groves, Judicial Review of Administration Action (2013, LawBook Co, 5th ed), [5.20]-[5.40]

 

M Robinson, Judicial Review – The Laws of Australia (2014, Thomson Reuters), [2.4.1190]ff; [2.4.1030]ff

  O Jones, Bennion on Statutory Interpretation (6th ed 2013, LexisNexis)

Category:

Principal judgment

Parties:

Abbas Ibrahim Ali (Appellant)
AAI Limited (First Respondent)
State Insurance Regulatory Authority of NSW (Second Respondent)
Ian Cameron, in his capacity as a Medical Assessor of the State Insurance Regulatory Authority (Third Respondent)

Representation:

Counsel:
Mr R S Sheldon SC/Ms E E Welsh (Appellant)
Mr M A Robinson SC/Ms J Gumbert (First Respondent)
Submitting appearances (Second and Third Respondents)

  Solicitors:
Brydens Compensation Lawyers (Appellant)
Moray & Agnew (First Respondent)
Crown Solicitor’s Office (Second and Third Respondents)

File Number(s):

2015/255050

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2015] NSWSC 1068

Date of Decision:

4 August 2015

Before:

Wilson J

File Number(s):

2014/265231

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 13 November 2006, Mr Abbas Ibrahim Ali suffered injuries as a result of a motor vehicle accident. He lodged a claim for damages against AAI Ltd, the insurer of the vehicle at fault. To be awarded damages for non-economic loss Mr Ali needed to demonstrate that he had suffered a degree of permanent impairment greater than 10%. Mr Ali underwent assessments by medical assessors for the Medical Assessment Service of the Motor Accident Authority. The assessments were to be conducted with reference to the MAA’s “Permanent Impairment Guidelines”. On 16 July 2013 a “further assessment” was conducted by Dr Ian Cameron who assessed his whole person impairment due to brain injury at 7%. This calculation, together with an assessment of other injuries, resulted in a combined certificate of 11% permanent impairment. Accordingly, he was entitled to non-economic loss payments.

On 9 September 2013, AAI lodged an application for review of Dr Cameron’s further assessment. The proper officer of the MAA refused to refer the application for review. On 28 January 2014, AAI sought to challenge both Dr Cameron’s certificate and the decision of the proper officer in the Common Law Division pursuant to s 69 Supreme Court Act 1970 (NSW). On 4 August 2015 Wilson J set aside both the further assessment certificate and the proper officer’s decision refusing review. Mr Ali sought leave to appeal from that judgment. AAI filed a notice of contention seeking to restate the additional grounds of review presented in the Supreme Court which the primary judge had not expressly addressed.

The issues for determination on appeal were:

(i)   whether the assessor had failed to consider relevant evidence relating to pre-accident injuries and surveillance material which purported to cast doubt on Mr Ali’s post-accident impairment;

(ii)   whether the assessor had taken into account evidence considered “unreliable”, especially Mr Ali’s own statements as to his disabilities; and

(iii)   whether the assessor had satisfied the statutory obligation to provide reasons for his assessment.

The Court held (per Basten JA, Leeming and Simpson JJA agreeing) in allowing the appeal:

In relation to (i)

1. The assessor had referred to the evidence before him when making his assessment. Incomplete references in the trial judge’s reasons to passages extracted from the assessor’s reasons led to incorrect inferences being drawn as to the assessor’s purported failure to address relevant material: [52]. A failure to identify correctly the nature of the medical dispute led the primary judge into error when concluding that the assessor had failed to consider pre-accident psychiatric injury in making his assessment: the legislative scheme required psychiatric injury and physical impairment to be dealt with separately: [58].

Allianz Australia Insurance v Kerr (2012) 83 NSWLR 302 referred to.

In relation to (ii)

2. Assessing an account as “unreliable” does not bar its consideration: [60]. Self-reporting which is adjudged to be unreliable does not become irrelevant information which, if taken into account, will invalidate the assessment process: [63]. Where a statute confers exclusive power to determine facts and exercise discretion, there is limited room for implying limits on how the repository of the power can exercise that power. There is no statutory basis for suggesting that the assessor did not have power to identify material as unreliable whilst giving it some limited weight: [69].

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Craig v South Australia (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, discussed.

In relation to (iii)

3. The assessor’s role is not defined by principles relating to the judicial function: [5]. Assertions of the inadequacy of reasons were based on a misapprehension of the nature of the assessor’s function. Any finding of breach should properly address the issue by reference to the terms of the statutory obligation: [51]. Brief reasons provided by the assessor addressing a precise point were sufficient to satisfy the statutory requirement: [55].

(per Leeming JA)

4. The MAA Guidelines do not of themselves impose statutory obligations on the assessor: [85]. Neither the requirement for their gazettal (s 44(4) MAC Act) nor their treatment as disallowable instruments (s 45(5) MAC Act) converts the Guidelines into delegated legislation: [85]. A failure to have regard to a matter in the Permanent Impairment Guidelines would therefore not vitiate an assessor’s determination: [98].

Judgment

1. BASTEN JA: On 13 November 2006 the appellant, Abbas Ibrahim Ali, was injured in a motor vehicle accident. He made a claim against the third party insurer for damages with respect to injuries incurred in the accident. In order to obtain an award of damages for non-economic loss he needed to demonstrate that he had suffered a degree of permanent impairment greater than 10%. [1] There being a dispute as to that fact, an assessment of permanent impairment was undertaken by a medical assessor. [2] Several medical assessments were undertaken, but relevantly for present purposes, Dr Ian Cameron undertook a “further assessment” on 16 July 2013 dealing with a traumatic brain injury, soft tissue injury to the lumbar spine and a fracture of the right clavicle. He assessed a degree of permanent impairment as 7%. This figure did not itself exceed the 10% floor, but in combination with other physical impairments, it was part of a final calculation of 11% permanent impairment.

   1. Motor Accidents Compensation Act 1999 (NSW), s 131 (“the MAC Act”).

   2. MAC Act, s 132(1).

2. On 9 September 2013, AAI Ltd (“the insurer”), lodged an application for a review of Dr Cameron’s assessment, pursuant to s 63 of the MAC Act, on the ground that the assessment was “incorrect in a material respect.”[3] That application was refused by the proper officer, Medical Assessment Service, in a reasoned decision dated 5 December 2013.

   3. MAC Act, s 63(2).

3. On 28 January 2014 the insurer sought review, pursuant to s 69 of the Supreme Court Act 1970 (NSW), of (a) the assessment by Dr Cameron (“the assessor”) and (b) the refusal of its application for review by the proper officer. For reasons which are obscure, that application was not heard until 13 February 2015 in the Common Law Division. On 4 August 2015 Wilson J made orders setting aside both decisions. [4]

   4. AAI Ltd v Ali [2015] NSWSC 1068. The paragraph numbers below are taken from the corrected judgment on Caselaw; different numbering is used in the version at (2015) 72 MVR 23.

4. The submissions for the insurer (despite express denials), invited a blatant exercise in merit review, beyond the scope of the jurisdiction of the Court in exercise of its supervisory jurisdiction. Despite the claimant’s opposition to such a course, the primary judge accepted the insurer’s submissions and set aside the decisions under review.

5. In this Court, the insurer sought to justify the judgment and, in respect of those issues not reached by the primary judge, reiterated by way of a notice of contention, the additional grounds presented in the Court below. It sought to have this Court engage in a general appellate review of the fact finding by the assessor; it also sought to import into the assessment process aspects of the judicial function. Neither approach should be accepted. The judgment and orders made below must be set aside; the insurer must pay the costs of the proceedings.

6. The primary judge identified as central issues erroneously addressed by the assessor, (a) evidence of pre-accident impairments resulting from the claimant’s experiences as a young man in Iraq and (b) doubt cast upon his claimed current disabilities, as revealed in surveillance film. It is convenient to commence by outlining the approach taken by the assessor.

Reasoning of assessor

7. The assessor dealt with the issues raised for consideration in an orderly fashion. He commenced by identifying the issue in dispute which was whether the degree of permanent impairment of the claimant as a result of injury caused by the motor accident was greater than 10%. (His certificate recorded three areas of physical injury and stated that they did not give rise to a permanent impairment greater than 10%.)

8. Section 2 of the reasons, headed “Introduction”, noted the material available in the Medical Assessment Service files and additional information provided by the Service, which included further reports and surveillance films. By the time Dr Cameron came to carry out the further assessment on 16 July 2013, there had already been two previous assessments (in November 2008 and May 2011). Much material had been accumulated. By way of example, when the insurer sought a report from Dr Sydney Smith in January 2010, Dr Smith noted, among other classes of documents, no fewer than 27 extant reports. The volume of material before the assessor was in the order of 2,000 pages.

9. The assessor stated that he had “seen and considered” all of that material and noted that both the claimant and the insurer had been provided with copies of the documentation and the surveillance film. He said that Mr Ali, accompanied by his wife and an interpreter, attended the assessment.

10. Section 3 of the reasons set out the history given by the claimant. Section 4 outlined the assessor’s findings on his clinical examination. He noted that he had administered a “Mini-Mental Status Examination” on which the claimant achieved a “severely abnormal score”, which the assessor dismissed as not a valid score.

11. Section 5 contained a review of the documentation. Having referred to the initial clinical records, including an ambulance report which confirmed the head injury and recorded an initial Glasgow Coma Score of 10/15, the assessor referred to the hospital admission records indicating a “right sided basal skull fracture extending through the temporal bone with a suspicion of a similar fracture on the left side … a cranial vault fracture involving the right temporoparietal bones and an extradural haematoma of 2cm in depth causing minimal midline shift.” [5]

    5.    Reasons, p 6.

12. The assessor stated in respect of the surveillance material: [6]

“Surveillance reports were provided from All States Investigations. These were dated 24 July 2012, 3 July 2012 and 9 December 2009. These showed Mr Ali involved in a variety of activities. He walked in the street without apparent difficulty, concentrated on reading a newspaper in the library for approximately 10 minutes and he was able to interact appropriately socially with friends that he met at the shopping centre. There was a significant contrast between Mr Ali’s abilities in the videos to those I observed and the consultation.”

6.    Reasons, p 7.

13. The assessor noted both the submissions and the further submissions from the insurer. He also referred to “multiple psychiatric reports of Dr Parmegiani [7] and specifically identified two reports by Dr Smith, the later one being in July 2013. The assessor stated: [8]

“The previous report of Dr Smith is dated 11 June 2012. This is a psychiatrist’s report which stated that Mr Ali had a post traumatic stress disorder that predated the accident and might have been aggravated by it.”

7.    Reasons, p 6.

8.    Reasons, p 7.

14. In dealing with an early report of March 2007 by the treating rehabilitation physician Dr Veerabangsa, the assessor noted the opinion that the claimant’s “previous traumatic experiences in Iraq may have contributed to his post-trauma emotional state.” [9]

    9.    Reasons, p 5.

15. The assessor noted that Dr Smith’s later report disagreed with an assessment made on behalf of the claimant by Dr Teychenne. On 27 May 2011, Dr Teychenne, reported that the claimant had suffered “a significant traumatic brain injury.” [10] By contrast Dr Spira thought that by June 2013, there was “no significant residual impairment related to traumatic brain injury”. [11]

    10.    Reasons, p 7.

    11.    Reasons, p 7.

16. In section 6, headed “Conclusions”, he set out a finding that the claimant had sustained the various injuries under assessment in the motor vehicle accident. Having concluded that the claimant “sustained an extremely severe traumatic brain injury” in the accident, he continued: [12]

“Mr Ali’s current presentation is quite inconsistent and his reports with reference to his current impairment and disability are unreliable.”

12.    Reasons, p 8.

17. He referred to the Guidelines for Assessment of Permanent Impairment published by the Motor Accidents Authority and dated 1 October 2007 (“the Guidelines”) and concluded that, six years and eight months after the accident, the claimant’s injuries were “stable”. [13]

    13.    Reasons, p 9.

18. The critical findings were set out in section 7, headed “Determinations”. That section commenced with reference to the American Medical Association Guides and the (local) Guidelines, pursuant to which permanent impairment was to be assessed, in accordance with s 106 of the MAC Act. In determining the degree of permanent impairment, the reasons stated in part: [14]

“The head injury is assessable as causing permanent impairment. Mr Ali has had a significant impact to the head and there are brain imaging abnormalities that are consistent with brain trauma. The criteria set out in section 5.9, page 31 MAA Guidelines, are satisfied.”

14.    Reasons, p 9.

19. To understand this and subsequent findings made by the assessor, it is necessary to have regard to Chapter 5 of the Guidelines, Nervous System Impairment. However, first it is important to note a general feature of the Guidelines, namely that impairment resulting from a physical injury is to be assessed separately from impairment resulting from psychiatric or psychological injury. [15] The Guidelines further provide that when determining the degree of permanent impairment resulting from an accident, the rating for a physical injury cannot be combined with the rating for a psychiatric or psychological injury. [16] Those propositions follow from the terms of s 61(10) of the MAC Act, recognising that there may be separate assessments of different physical injuries, which are to be put together in a “combined certificate” to give the total degree of permanent impairment, but which cannot be combined with impairment resulting from a psychiatric or psychological injury. In the present case, the claimant obtained an assessment of greater than 10% (namely 11%) as a result of a combined certificate, demonstrating (although the combined certificate was not before this Court, and was not sought to be set aside) that the injuries being assessed by Dr Cameron were not psychiatric or psychological injuries.

    15.    Guidelines, par 1.38.

    16.    Guidelines, par 1.39.

20. Turning to Chapter 5 of the Guidelines, and relevant to the conclusion reached above, the following passages appear under the heading “The central nervous system – cerebrum or forebrain”.

“5.9   For an assessment of Mental Status Impairments and Emotional and Behavioural Impairments there should be:

(i)   evidence of a significant impact to the head, or a cerebral insult, or that the motor accident involved a high velocity impact; and

(ii)   one or more significant medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or Post Traumatic Amnesia, or brain imaging abnormality.

5.10   The results of psychometric testing, if available, should be taken into consideration.

5.11   Assessment of disturbances of Mental Status and Integrative Functioning

The assessor should use Table 5.1 of these MAA Guidelines, the Clinical Dementia Rating (CDR) which combines cognitive skills and function.”

21. There is no challenge to the finding that the criteria in par 5.9 were satisfied. Following that conclusion, the assessor continued: [17]

“The assessment is complex because Mr Ali has clearly had a significant traumatic brain injury based on the contemporaneous clinical reports. However, he has not applied himself fully to the neuropsychological assessment or the MAS assessment with reference to impairment related to brain injury. This was brought to his attention and he said that he could not remember the information that was requested.”

17.    Reasons, p 9.

22. The assessor then referred to the approach required in the Guidelines for assessment of mental status impairment by reference to the “modified clinical dementia rating scale.” As required by par 5.11, the assessor undertook the exercise required by Table 5.1. The table has six categories, being (i) Memory, (ii) Orientation, (iii) Judgement and Problem Solving, (iv) Community Affairs, (v) Home and Hobbies and (vi) Personal Care. To understanding the ratings given by the assessor, it is convenient to set out that part of the table dealing with the first factor identified, namely memory.

Impairment Level and CDR Score
None 0	Questionable 0.5	Mild 1.0	Moderate 2.0	Severe 3.0
Memory (M)		No memory loss or slight inconsistent forgetfulness	Consistent slight forgetfulness; partial recollection of events; “benign” forgetfulness	Moderate memory loss; more marked for recent events; defect interferes with everyday activities	Severe memory loss; only highly learned material retained; new material rapidly lost	Severe memory loss; only fragments remain

23. For each category (bar the last), the assessor gave a score of 0.5, meaning that the relevant impairment was “questionable”. With respect to personal care, the scoring was zero, indicating “none”. The assessor continued: [18]

“These assessments are based on the available information which suggest Mr Ali has difficulty with memory and judgment and requires his wife to assist him in tasks requiring these skills. Mr Ali said that he is significantly restricted in community affairs and leisure and recreational interests but the video material suggested that he is able to access the community without assistance and is able to cope in social and community situations.”

18.    Reasons, p 10.

24. The application of that calculation is set out in par 5.12 of the Guidelines which, to the extent relevant, reads as follows:

5.12   When using the CDR the individual’s cognitive function for each category should be scored independently. … Memory is considered the primary category, the other categories are secondary. If at least three secondary categories are given the same numeric score as memory then the CDR = M.

25. Accordingly, Mr Ali’s clinical dementia rating was 0.5. Table 5.2 provided “criteria for rating impairment related to mental status”. There are four classes. It is only necessary to refer to class 1, which is as follows:

Class 1

1%-14% Impairment of the whole person

Impairment exists, but ability remains to perform satisfactorily most activities of daily living

CDR = 0.5

The assessor’s reasons continued: [19]

“This is equivalent to 1% to 14% whole person impairment. Because many of the items included in the modified Clinical Dementia Rating scale are influenced by emotional and behavioural factors it is my evaluation that the percentage whole person impairment due solely to ‘mental status’ impairment is in the middle part of this range and is therefore 7% WPI. It is noted that there are evaluations from multiple clinicians [that] are conflicting. There were significant effects of the traumatic brain injury initially but it has not been conclusively demonstrated that they continue at a level that is associated with a greater level of permanent impairment.”

19.    Reasons, p 10.

26. The assessor then considered “emotional and behavioural functioning”, and assessed his current status as one of “mild limitation of daily social and interpersonal functioning”, on a basis which it is not necessary to set out. He evaluated the impairment due to the brain injury as 7% whole person impairment. His adoption of this figure which was in the middle of the range, was explained in the following terms: [20]

“The justification for this is that Mr Ali has had a documented significant brain injury and he appears to have some impairment of emotional and behavioural functioning. There are conflicting reports about the severity of this.”

20.    Reasons, p 10.

27. Again using the Guidelines, the assessor concluded that the claimant’s whole person impairment due to brain injury was 7%.

28. The assessor was required to address not only the consequences of the traumatic brain injury, but also the physical effects of a soft tissue injury to the lumbosacral spine and the fracture of the right collarbone. Because he dismissed the latter two injuries as involving no current degree of permanent impairment, findings in that regard may be ignored.

Procedural steps

29. Before addressing the reasons of the primary judge, it is desirable to note why the proceedings may have been presented in a manner not conducive to their expeditious and correct resolution.

(a)   grounds of review

30. The difficulties in the Court below began with the grounds articulated in the summons commencing the proceedings. First, the relief claimed was directed to the “decision” of the assessor, Dr Cameron. Assuming that what was intended was an order setting aside his assessment certificate, the certificate which in fact produced the relevant legal consequence (entitling the claimant to an award of damages for non-economic loss) was the combined certificate. No order was sought seeking to set that aside, which could have given rise to confusion in the event that the certificate issued by Dr Cameron was set aside.

31. Secondly, under the MAC Act, s 63, the insurer, as a party to a medical dispute, could apply to the proper officer of the authority to refer the challenged assessment to a review panel. [21] That course was taken, but the proper officer rejected the application, not being satisfied that there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.”[22]

    21. MAC Act, s 63(1).

    22. MAC Act, s 63(3).

32. The primary basis upon which the decision of the proper officer was challenged was that it was based on an invalid medical assessment. Although that ground may have been good for the combined certificate (based on legal invalidity) it is less clear that the same logic would apply to the decision of the proper officer, which required her to be satisfied that the assessment was “incorrect in a material respect” (primarily a factual question).

33. Thirdly, the grounds were imprecise as to what constituted jurisdictional error and what constituted error of law on the face of the record. As will be seen, failure to identify with specificity the grounds relied upon[23] was apt to cause difficulties in determining what evidence should be admitted in proceedings, which were in the original jurisdiction of the Court.

    23. As required by the Uniform Civil Procedure Rules 2005 (NSW), Pt 59, r 59.4.

34. Fourthly, the grounds misstated the issues to which the assessment was directed, with the result that the alleged failure to deal with the issues, said to render the decision (and presumably the certificate) invalid, proceeded on a false premise. The issues were to be identified in accordance with the requirements of s 57 and s 61(1) of the MAC Act. Section 61(1) is in the following terms:

61   Status of medical assessments

(1)   The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

35. The term “medical dispute” is defined to mean “a disagreement or issue to which this Part applies.”[24] Relevantly for present purposes, s 58 states:

58   Application

(1)   This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):

…

(d)   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%.

24. Section 57, medical dispute.

36. Contrary to the statutory identification of medical assessment matters, to which the Part applies, and which are to be the subject of a certificate under s 61(1), the summons identified the issues as “including” (but presumably not limited to), “(i) the claimant’s credit; (ii) the claimant’s wife’s credit; (iii) surveillance films; (iv) the absence of independent verifying evidence to support the claimant’s claim; (v) the correct and lawful approach to the Clinical Dementia Rating tables, causation; and (vi) determination of the extent of the claimant’s pre-accident mental or physical condition and what deduction or apportionment should be made for this pre-accident condition.” The summons thus broadened the subject matter of the assessment in a manner which was not consistent with the statutory scheme and which had potential consequences in identifying errors of law.

37. The particulars also proved to be misleading. Thus, the alleged failure to deal with the claimant’s credit was palpably wrong, in so far as the reliability of his account of his condition was concerned. It was simply untrue that the assessor had failed to address that issue; by the time the matter came before the Court, the insurer’s position was that the assessor had in fact found that the claimant’s evidence was so unreliable that it made an error of law in placing any weight upon it at all. This aspect of the matter was significant, because it became an important element in the judgment of the primary judge and in relation to the matters relied upon on appeal by way of a notice of contention.

38. The sixth particular was misleading because it implied that the claimant’s pre-accident “mental or physical condition” should have been taken into account in reduction of the degree of impairment caused by the accident. In fact, the evidence relied upon involved a psychiatric or psychological condition, which was required by the MAC Act and the Guidelines to be dealt with separately, as the insurer should have known.

(b)   evidence admitted before primary judge

39. Both parties filed submissions prior to the hearing before the primary judge. According to those written submissions, the insurer sought to read an affidavit of its solicitor which exhibited all the 2,000 pages of material before the assessor. [25] In his written submissions, the claimant asserted that the affidavits and exhibits were inadmissible. [26] Reference was made to Allianz Australia Insurance Ltd v Kerr. [27]

    25.    Plaintiff’s summary submissions, Common Law Division, filed 24 July 2014, par 6.

    26.    Summary submissions in reply, filed 28 August 2014, par 5.

    27. (2012) 83 NSWLR 302; [2012] NSWCA 13 at [13]-[20], but more particularly at [18]-[20].

40. When the matter came on for hearing, senior counsel for the insurer beguilingly noted that the four volume affidavit had been pared back to one volume (apparently being the 525 pages of material relied upon in this Court). Counsel for the claimant did not maintain a clear objection, merely noting that in her submission the judge “need not go to it” and promising to deal with it in oral submissions, but not objecting to the insurer relying on it for the purpose of advancing its argument. [28]

    28.    Tcpt, 13/02/15, p 3(25)-(30).

41. In the course of submissions in this Court, counsel for the insurer accepted that in identifying error of law on the face of the record, he was confined to the document identifying the nature of the medical dispute and the reasons of the assessor. For the purpose of establishing jurisdictional error, he was entitled to rely upon other material. By way of example, had the insurer sought to rely upon a radiologist’s report denying that the claimant had suffered fractures to his skull in the accident, being a report which had been relied upon before the assessor and referred to in submissions filed with the assessor, but not referred to by the assessor in his reasons, then it would have been open to the insurer to tender the report and so much of the submissions as demonstrated how it was relied upon. That course would have been legitimate on the basis that there was either procedural unfairness or a constructive failure to exercise the assessor’s statutory function if such material had been entirely disregarded. Both procedural unfairness and a failure to exercise a statutory function may constitute jurisdictional error.

42. Had the specific grounds been identified in the pleading and the relevant particulars set out, together with a characterisation as jurisdictional error, it would have been possible to rule on the admissibility of the material, much of which would probably have been rejected as irrelevant. In the result the primary judge was left with an unmanageable volume of largely irrelevant material.

Reasoning of primary judge

43. The primary judge posed the question for determination in the following passages:

“[44]   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. There was evidence before the assessor that suggested that the first defendant’s claimed impairment was exaggerated and, insofar as it did exist, was either wholly or in part attributable to pre-existing injury or impairment.

…

[48]   Here, the question is whether or not the assessor dealt fully and properly with the evidence upon which determination of the claim had to be based, with a proper level of exposition of process and conclusion.

44. Although using language which was apt to expand the legitimate grounds of judicial review, the second passage appeared to identify two issues, namely whether there had been a failure in some particular respect to consider relevant material or exercise the statutory function of assessment, and, separately, whether the statutory obligation to provide reasons had been satisfied.

45. The first passage identified two factual issues, namely, the claimant’s pre-accident impairment and the doubt cast upon the level of his claimed current disabilities. The former appeared to rely on the factual analysis set out in the following terms:[29]

“The defendant had suffered terribly in his native Iraq prior to fleeing persecution in that country, and was left with some and perhaps significant impairment as a consequence of his experiences there. That impairment was well documented, with medical reports available to the assessor which detailed the defendant’s condition previous to the motor vehicle collision in November 2006. Further assessments conducted in the months following the motor vehicle crash referred to the likely contribution of pre-crash injuries to post-crash impairment.”

29. Judgment at [51].

46. The latter issue (credibility) was summarised in the following terms:

“[52]   The assessor was confronted with evidence which, on the one hand, dismissed the existence of any significant residual impairment attributable to the traumatic brain injury sustained in the collision (such as the report of Dr Spira of 21 June 2013) and, on the other, accepted that there was significant brain injury (such as the report of Dr Teychenne of 27 May 2011).

[53]   The mini-mental status assessment administered by Dr Cameron itself pointed to malingering, in that the defendant presented as ‘severely abnormal’, that being a degree of abnormality greater than that which the defendant’s injuries could account for. The score was ultimately regarded by Dr Cameron as invalid.

…

[55]   Of some significance in resolving the evidentiary dispute as to impairment was evidence adduced by the plaintiff including surveillance footage of the defendant functioning in the community in a manner wholly inconsistent with his presentation during medical assessments, and with his complaints of impairment. In that this evidence had about it a degree of objectivity not shared by the subjective reports of the defendant, it was of some significance to the assessment process. It was of particular importance to assessment of the permanence or otherwise of those of the defendant’s injuries attributable to the 2006 crash.”

47. The issue of credibility arose from what the judge described in a number of passages as evidence of “malingering”. (This language did not come from the assessor: rather it came from Dr Spira, who, while agreeing that the claimant had sustained “a significant head injury” in the accident, concluded that, because of the “frank malingering”, it was “all but impossible to determine whether there is any organic cognitive disorder” due to the accident.) The analysis continued in terms which appeared to identify both a failure to take material into account and inadequate reasons:

“[61]   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.

[62] An 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 error of a sort amenable to judicial review.”

48. The second error identified by the primary judge was that the assessor “failed to address and resolve the dispute between the parties as to the pre and post-crash impairment”. [30] The reasoning of the trial judge in this respect asserted that “there was evidence which clearly raised that issue as one for determination”, but that it was not dealt with by the assessor. [31] More precisely, the judge stated:

“[64]   As is required by the guidelines, and in determining the dispute on this aspect of the matter between the parties, it was necessary for the assessor to deal directly with this contentious aspect of the claim. Whilst noting medical evidence of pre-crash impairment, Dr. Cameron did not determine to what extent if any the defendant’s impairment was to be attributed to his traumatic experiences in Iraq, pre-dating the motor vehicle collision.

[65] 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.”

Issues on appeal

30. Judgment at [63].

31. Judgment at [63].

(a)   inadequacy of reasons

49. There was some confusion in the reasoning as to this supposed error. Either the assessor, having noted evidence of pre-crash impairment, nevertheless failed to consider it; or he failed to expose his reasons for the assessment. Generally, both errors are not committed in relation to the same material. As explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [32] considering the obligation to give reasons imposed on a medical panel under s 68 of the Accident Compensation Act 1985 (Vic):

“The standard required of the written statement of reasons which s 68(2) of the Act obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”

32. (2013) 252 CLR 480; [2013] HCA 43 at [65] (French CJ, Crennan, Bell, Gageler and Keane JJ).

50. Self-evidently, a statement of “the actual process of reasoning” cannot be inadequate because it fails to set out a step which was not actually taken. The putative error must then have been failure to consider relevant evidence.

51. It is not necessary to address further the scope of the reasons required; however, any finding of breach should properly address that issue by reference to the terms of the statutory obligation under s 94(5) of the MAC Act, requiring that the assessor “attach a brief statement to the certificate setting out the assessor’s reasons for the assessment”. It would also have been appropriate to note the principles set out by the High Court in Wingfoot v Kocak. As will be explained below the assertions of inadequate reasoning were based on a misapprehension as to the nature of the assessor’s function.

(b)   failure to address relevant considerations

52. Although it will be necessary to address the concept of irrelevant considerations in relation to the insurer’s contentions, it is not necessary to address its correlative concept, relevant considerations. It is sufficient to note that the approach of the primary judge cannot be accepted for two reasons. First, the references made to passages in the reasons of the assessor were materially incomplete; secondly, the inferences drawn did not follow from the premises.

53. With respect to “malingering”, perhaps better described as exaggeration of disabilities,[33] the critical evidence relied on by the insurer to cast doubt on the claimant’s account was the surveillance material. Contrary to the statement of the primary judge, there were in fact, not two, but three passages in the reasons which dealt with the surveillance films. Further, the judgment set out portions only of the second in the following passage:[34]

“Despite the apparent importance of this evidence, there is nothing in the certificate issued by the assessor that establishes that any, or any proper, regard was had to it. It was dealt with in two discrete paragraphs of the certificate of 16 July 2013 in these terms:

‘I have seen and considered the DVD / video / surveillance images (at p.2).

[…]

Surveillance reports were provided […] There was a significant contrast between Mr Ali’s abilities in the videos to those I observed at the consultation (at p.7)’.”

33. Judgment at [44].

34. Judgment at [56].

54. The omitted passage in the second extract (which is set out in full at [12] above) is by no means insignificant: it described the activities recorded on the films. Even more tellingly, a third passage (set out at [23] above) contradicts the conclusion reached by the primary judge: it demonstrates the assessor taking that material into account in relation to precisely those elements in the table to which it was most closely relevant, namely “community affairs and leisure and recreational interests”.

55. The submission by the insurer that the assessor’s reasons did “no more than refer to the existence” of the surveillance evidence, without dealing with its significance, is untenable. The conclusions of the assessor based on that material were expressly stated in both the significant passages. If any more could have been said (which is doubtful) there was no legal error in failing to take the analysis further; the brief reasons addressing the precise point satisfied the statutory requirement. [35] The assessor’s conclusion based on the available material was a “questionable” disability; the surveillance evidence, together with conclusions derived from the clinical examination, formed part of that which led to an assessment in the middle of the prescribed range.

    35. Allianz v Kerr at [57].

56. The second area said to demonstrate a failure to take account of significant material involved the pre-existing impairment. The fatal flaw in that reasoning lay in the failure to identify with precision the nature of the medical dispute and hence the issue to be determined. Had that been done, it would have been understood that the evidence relied upon by the insurer, and to which reference was in fact made by the assessor, was not ultimately significant. Somewhat ironically, that was explained in the reasons given by the proper officer, who had been faced with a similar complaint. She said: [36]

“The [insurer] also submits that if there is some impairment in any of the ratings criteria, that it is wholly attributable to a pre-existing psychiatric condition. In this regard I refer to clause 1.38 which directs that impairment from physical injury is to be assessed separately from the impairment resulting from psychiatric or psychological injury. I note the claimant’s psychological injuries were assessed by Assessor Lewin on 2 August 2011 and he considered the claimant’s pre-existing psychiatric condition at that time.”

36.    Reasons, 5 December 2013, par 21.

57. In the course of submissions in this Court, counsel for the insurer relied upon an affidavit of Dr Attia-Soliman, dated 23 July 2006 (some four months before the motor vehicle accident) noting that she had diagnosed the claimant as suffering from “marital problems as well as chronic depression and post-traumatic stress disorder.”

58. The requirement to separate psychiatric injury and physical impairment is clearly stated in s 61(10) of the MAC Act (referred to at [19] above). Consistently with the legislative scheme, the Guidelines deal separately with psychiatric and psychological impairment. Dr Cameron was assessing an impairment which satisfied cl 5.9 of the Guidelines. Accordingly, the explanation given by the proper officer, set out above, was a full and correct answer to the insurer’s complaint. The conclusion of the trial judge that any form of error was identified in the failure to determine the extent of any pre-existing psychiatric condition, let alone one which invalidated the assessment, must be rejected.

Notice of contention – irrelevant considerations

59. The thrust of the challenges raised in the notice of contention, which was limited to the assessment certificate issued by Dr Cameron, turned on par 7(d) which read:

“The medical assessor found that there was a significant contrast between the surveillance films and the presentation of the appellant on assessment and that his presentation was quite inconsistent and his reports with reference to his current impairment and disability were unreliable. He also found that the appellant did not apply himself fully to the neuropsychological assessment or the MAS assessment with reference to the brain injury. Having found all this, the medical assessor then proceeded to rely on the claimant’s reporting in making his assessment decision. In doing so, the medical assessor had regard to irrelevant information that he should not have taken into account. This is a jurisdictional error and the assessment decision is thereby invalid.”

(a)   factual flaws

60. The summary of the findings of the assessor is correct; what was said to flow from those findings is both factually and legally flawed. The factual flaw operates at two different levels. First, it was simply wrong to treat an assessment of the claimant’s account as “unreliable” to mean that it is worthless in all respects. Thus, to take an hypothetical example, to reject as unreliable a person’s statement that he is virtually blind, is not to deny that he may have some level of impaired vision. Secondly, at no point did the assessor treat the claimant’s account of his own disabilities as reliable; in all the prescribed areas (except personal care, which was entirely rejected) the extent of the disabilities was said to be “questionable”. Thus, under the heading “Judgment and problem solving” the assessor recorded a finding indicating that the impairment was “questionable” and stated, “there appear to be difficulties”. That finding was consistent with his earlier assessment of the clinical investigation the assessor had conducted.

61. In describing his clinical examination, Dr Cameron stated: [37]

“Mr Ali attempted to complete the Mini-Mental Status Examination. He appeared to have substantial difficulties with orientation in time and place, registration, concentration, arithmetic tasks and executive tasks. He scored 10/30 on Mini-Mental Status Examination which is a severely abnormal score. It is my opinion that this is not a valid score.”

37.    Reasons, p 4.

62. The statement that the claimant “appeared to have substantial difficulties” in completing the tasks is entirely consistent with the final conclusion that “there appear to be difficulties”, but that their extent is “questionable”. In other words, the finding was not based upon what the claimant had said, but what the assessor had observed. Accordingly, the contention is factually misconceived.

(b)   legal flaws

63. The legal flaws involve an equally serious misconception. Even supposing that the assessor had, contrary to the explanation just given, relied upon the claimant’s self-reporting, self-reporting adjudged to be unreliable does not thereby become “irrelevant information”, which, if taken into account in the assessment process, will invalidate the process.

64. The administrative law concept underlying this submission is conceived, at least in Australian law, as an expression of statutory construction. The language of “irrelevant consideration” is used to refer to factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. [38] A clear example of an express prohibition may be found in equal opportunity legislation which makes it unlawful to take race into account in public decision-making. [39]

    38. Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239 at [113]; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.

    39. Racial Discrimination Act 1975 (Cth); Anti-Discrimination Act 1977 (NSW), Pt 2.

65. Although the conventional statements of the principle refer to relevant and irrelevant “considerations”,[40] other language is sometimes used. [41] Further, there is a second principle that extends beyond “considerations”. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[42] the Minister considering making a grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), was required to take into account detriment to an existing landholder, identified by the Aboriginal Land Commissioner. The issue was whether the requirement extended to further information supplied directly to the Minister. As explained by Mason J: [43]

“It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

40. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

41.    In Peko-Wallsend, Mason J also used the term “relevant factor” at 41.

42.    See fn 40.

43.    Peko-Wallsend at 45.

66. It is in such a context that reference is made to ignoring “relevant material”. [44] A statutory obligation to address the substance of an applicant’s case will readily be implied, as will an obligation to consider material relied on by an applicant which is, on its face, relevant and significant, and is credible or uncontested. [45] Failure to do so may involve a constructive failure to exercise the function conferred by the statute.

    44. Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (McHugh, Gummow and Hayne JJ).

    45. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] and [25] (Gummow and Callinan JJ), [88] (Kirby J); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] (Gaudron J).

67. In Minister for Immigration and Multicultural Affairs v Yusuf, the joint reasons of McHugh, Gummow and Hayne JJ addressed a submission that a statutory provision requiring the Refugee Review Tribunal to give reasons for its decision and set out findings on any material question of fact, imposed an obligation to make findings on material questions of fact. The joint reasons stated: [46]

“On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.”

46.    Yusuf at [73] (reference omitted).

68. This was using the language of the first principle identified above; but the joint reasons continued:[47]

“This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

47. Yusuf at [74].

69. These related principles are widely accepted and dealt with in Australian texts. [48] On the other hand, where a statute confers an exclusive power to determine facts and exercise discretion, there is limited room for implied limitations on how the repository of the power can exercise that power. Relevantly for present purposes, there was no basis for suggesting that the assessor did not have the power to identify particular material as unreliable, but give it some limited weight. Nor was any attempt made to find such an implied limitation in the statute, a necessary exercise but one which would readily have revealed its own futility.

    48.    See, eg, M Aronson and M Groves, Judicial Review of Administration Action (2013, LawBook Co, 5th ed) at [5.20]-[5.40]; M Robinson, Judicial Review – The Laws of Australia (2014, Thomson Reuters) at [2.4.1190]ff and [2.4.1030]ff.

Conclusions

70. For these reasons the appeal must be upheld and the challenge to the assessor’s certificate set aside. No separate basis was relied on by the insurer to maintain the order setting aside the decision of the proper officer declining to refer the matter to a review panel.

71. The extension of time within which to commence the proceedings should stand, but the summons must be dismissed.

72. The primary judge reserved the costs of the proceedings before her, although costs had been sought in the summons. Given the result, the insurer should pay the claimant’s costs in this Court and in the Division.

73. The Court should make the following orders:

1. Allow the appeal and set aside orders 2-5 made in the Common Law Division on 4 August 2015.

2. In place thereof dismiss the summons filed on 28 January 2014.

3. Order that the plaintiff pay the costs of the first defendant (Abbas Ibrahim Ali) in the Common Law Division.

4. Order that the first respondent (AAI Ltd) pay the appellant’s costs in this Court.

74. LEEMING JA: I agree with the orders proposed by Basten JA, and with his Honour’s reasons. I wish to add the following concerning the status of and reliance upon guidelines, which was prominent in the insurer’s written and oral submissions on appeal. I do not regard any of what follows to be inconsistent with Basten JA’s judgment.

75. It was submitted before the primary judge on behalf of the insurer that the Medical Assessment Guidelines were “delegated legislation” and that the Permanent Impairment Guidelines were “also delegated legislation under the scheme” (written submissions paragraphs 34 and 41). That submission was accepted by the primary judge and was repeated in writing and orally when the appeal was heard.

76. At no stage was it explained in terms what was meant by “delegated legislation”. But the reason for the submission is plain enough. It was to support the proposition that a non-compliance by the assessor with the Guidelines amounted, in various ways, to judicially reviewable error.

77. Thus it was said at first instance that a “failure to properly apply” the Guidelines led to a breach of statutory duty. It was submitted at first instance that:

“The failure to lawfully apply the test of causation, as required by the PI Guidelines, constitutes a failure on the part of the Assessor to perform his statutory duty pursuant to section 62 of the Act” (paragraph 64).

78. On appeal, where the focus of ground 1 had become the failure to consider “all relevant evidence”, in particular the evidence relating to the claimant’s unreliability and his pre-existing impairment, the insurer’s submissions sought to invoke the Guidelines to establish a failure to have regard to relevant considerations. Notwithstanding their length, it is fairer to reproduce material passages from them, rather than to attempt to summarise them.

79. It was submitted that:

“[M]edical assessments are governed by two pieces of delegated legislation which in and of themselves require medical assessors to have regard to that which they are given in order to undertake their statutory task (making such documents mandatory relevant considerations).”

80. The first of the pieces of “delegated legislation” was the Medical Assessment Guidelines, and the insurer pointed to the obligation in cl 9.11.5 in those Guidelines to provide all documents in support of the application to the assessor, and the general powers governing the assessor’s role in cll 11.1 – 11.5. More elaborate submissions were made concerning the Permanent Impairment Guidelines:

“The second piece of delegated legislation that is binding on medical assessors when they are assessing the degree of permanent impairment of an injured person is SIRA's Guidelines for the Assessment of the Degree of Permanent Impairment, published 1 October 2007 and issued pursuant to section 44(1)(c) of the Act (‘the PI guidelines’).

At clause 1.19 of the PI guidelines, medical assessors are told that they ‘should’ consider the available evidence and be satisfied of certain things. The available evidence must include (at a minimum) the material given to the medical assessor by SIRA staff in accordance with clause 9.11.5 of the assessment guidelines.

There can be no legislative statement more plain and express than this.

The material given to the medical assessor must be considered by him or her on any medical assessment under the Act and delegated legislation. This material must be mandatory relevant material.

...

Clause 1.42 and 1.43 of the PI guidelines deal with ‘consistency’.

Clause 1.42 provides, inter alia:

‘If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly, describing the modification and outlining the reasons in the impairment evaluation report.’

Even if the medical assessor was entitled to rely on the subjective reporting by the claimant and/or his wife, the assessor was still required to comply with the PI guidelines in regarding to the assessment of pre-existing impairment.

The PI guidelines deal with pre-existing impairment at clauses 1.33 – 1.35. They require that if there is objective evidence of pre-existing symptomatic impairment in the same region as at the time of the accident then its value should be calculated and subtracted from the current whole person impairment value.

If the construction of the law regarding relevant considerations is that contended for as above, then clause 1.42 and clauses 1.33 – 1.35 were plainly relevant considerations, in that the PI guidelines are delegated legislation directing the medical assessor as to how to perform his statutory assessment task.

In order to comply with clause 1.42 and clauses 1.33 – 1.35 the medical assessor was required to have regard to the evidence that the first respondent relied upon in the proceedings below, regarding pre-existing impairment and inconsistency.

...

The fact is that the medical assessor failed even to consider the issue of pre-existing impairment, let alone to engage with the evidence and to determine it. This is a failure to comply with the PI guidelines, and a failure to perform his statutory duty which is to properly and lawfully assess the ‘medical dispute’ referred to him (ss 61(1) and 57).

In circumstances where the medical assessor’s task included, as a mandatory relevant consideration, consideration of the primary issues in the dispute between the parties including the claimant’s reliability and consideration of pre-existing impairment, the assessor was required to have regard to the material that was before him that addressed those issues.

In failing to take this relevant material into account, and taking irrelevant material into account, the medical assessor fell into jurisdictional error and the primary judge was entitled to find accordingly” (emphasis in original).

81. These submissions are not, in my view, sound.

82. Subsections 44(1), (4) and (7) of the Act are as follows:

“(1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:

(a) the appropriate treatment of injured persons,

(b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided),

(c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,

(d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.

...

(4) Motor Accidents Medical Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.

...

(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.”

83. Thus, the Authority is empowered to issue guidelines, which are to be published in the Gazette and which are treated as being disallowable instruments for the purposes of ss 40 and 41 of the Interpretation Act 1987 (NSW): see subss 44(1), (4) and (7). Subsection (7) makes it plain (by providing that ss 40 and 41 apply as if the guidelines were statutory rules) that the guidelines are not statutory rules. (It is unnecessary in this appeal to say anything of the claims assessment guidelines which are dealt with by subss 69(1), (5) and (6).)

84. Section 45 contains special provisions relating to the power to make guidelines relating to the assessment of permanent impairment. Such guidelines are subject to limitations which need not for present purposes be summarised. Such guidelines are also treated as disallowable instruments: s 45(4).

85. None of those provisions converts a guideline into delegated legislation which binds the parties or an assessor of its own force. Certainly, the requirement of gazettal does not do so. Many, many instruments are required to be published in the Gazette. Nor does the extension of the provisions relating to disallowance to guidelines do so. Many instruments under many statutes are treated as disallowable instruments (examples include a recall order under s 46 of the Stock Medicines Act 1989 (NSW), a scheme under the Professional Standards Act 1994 (NSW), a determination under Part 3 of the Statutory and Other Officers Remuneration Act 1975 (NSW) and a proclamation or order under ss 8 or 37 of the Poisons and Therapeutic Goods Act 1966 (NSW) – see ss 47, 13, 19A and 46 respectively of those statutes). In such cases, the legal consequence of the instrument is determined by other primary legislation. The instrument does not of itself impose a statutory obligation. The central concept of “delegated legislation” is a delegation of legislative power by Parliament: see O Jones, Bennion on Statutory Interpretation (6th ed 2013, LexisNexis) at 219.

86. There appear to be two provisions of the Act of present relevance. Section 65(1) now states the legal consequences of the Medical Guidelines:

“65 Authority monitoring and oversight

(1) Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.”

87. As presently advised, I incline to the view that s 65(1) lacks the force attributed to it in the insurer’s submissions. Far from a medical guideline having the force of delegated legislation, s 65(1) provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures: “the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment”. That picks up, almost precisely, the language of s 44(1)(d), which is also directed to procedures.

88. Section 133(2) now provides that:

“The assessment of the degree of permanent impairment is to be made in accordance with ... Motor Accidents Medical Guidelines issued for that purpose ...”

(In 2013, a different term, “MAA Medical Guidelines” was used instead of “Motor Accidents Medical Guidelines” in ss 44, 45, 65(1) and 133(2), but the definition was identical, and so I have used the current statutory language in the foregoing.)

89. Although s 133(2) is expressed more strongly than s 65(1), it was not mentioned in the insurer’s submissions. There may be a reason for that, or a subtlety I have overlooked, but prima facie it would appear that regard ought also be had to s 133(2). There are two other matters which emerge from the foregoing. It is plain from comparing the two provisions that statute treats different aspects of the tasks to be performed by medical assessors differently. And it is plain from ss 65(1) and 133(2) that the Guidelines do not bind of their own force.

90. It is true that the Medical Assessment Guidelines contain two statements about their own status. Immediately following the table of contents, the Guidelines contain an explanatory note:

“Explanatory note

These Guidelines are made pursuant to section 44(1)(d) of the Motor Accidents Compensation Act 1999 ('the Act'). They apply in respect of a motor accident occurring on or after 5 October 1999. Pursuant to section 65(1) of the Act these Guidelines operate by force of law as if they were delegated legislation” (emphasis added).

91. Further, cl 1.1 provides:

“Introduction and commencement date

1.1 These Guidelines may be referred to as the ‘Medical Assessment Guidelines’ and are made pursuant to section 44(1)(d) of the Motor Accidents Compensation Act 1999 (‘the Act’). They apply in respect of a motor accident occurring on or after 5 October 1999. These Guidelines are delegated legislation” (emphasis added).

92. I cannot see how either or both of those two (mutually inconsistent) sentences in the explanatory note and cl 1.1 within the Guidelines themselves can, self-levitatingly, alter their status. Whether something is or is not delegated legislation turns upon what the Parliament has done, rather than the language of the instrument.

93. In any event, unlike the Medical Assessment Guidelines, the Permanent Impairment Guidelines do not purport to have the force of delegated legislation, nor do they state that they operate as if they were delegated legislation, and it was the Permanent Impairment Guidelines which were the principal focus of the insurer’s submissions.

94. Consistently with their force being less than legislative, cl 1.3 of the Permanent Impairment Guidelines provides:

“The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.”

95. The Guidelines do not state what force is to be given to text which is not in bold, but it is plain that it is something less than a “directive”.

96. Finally, it will be seen that the insurer relied on cl 1.19 (evaluation of impairment), 1.33-1.35 (pre-existing impairment) and 1.42 and 1.43 (consistency). None of those clauses is in bold. All of the clauses relied on by the insurer therefore amount to something which is less than a directive.

97. Reading the clauses in the Permanent Impairment Guidelines on which the insurer relied together with the provisions of statute, I would conclude that an argument based upon a breach of statute must grapple with the more qualified obligation to conduct an assessment in accordance with guidelines all of which fall short of being directive. I do not wish to be taken as saying that such a submission could never succeed in giving rise to judicially reviewable error; I do not express a view either way on that issue. But it will be seen that it is quite a different submission from that propounded by the insurer.

98. Further, the foregoing would appear to confirm that there is nothing in the Guidelines – and certainly nothing in those parts of the Permanent Impairment Guidelines which have less than “directive” force – which of itself leads to the conclusion that a failure to have regard to some matter vitiates the assessor’s determination.

99. In short, I cannot agree that the Guidelines are “delegated legislation” in the sense that they bind of their own force. Instead, if judicial review is sought of a decision of an assessor based upon guidelines, it will be necessary to address the provisions of statute which make the guidelines applicable, and it will be necessary to address the particular clauses relied on, because both the Act and guidelines made pursuant to it proceed on the basis that they are not all of the same legal force.

100. SIMPSON JA: I agree with Basten JA.

**********

Endnotes

Decision last updated: 16 May 2016