Allianz Australia Insurance Limited v Yangzom

[2025] NSWCA 104

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104

Hearing dates:

8 April 2025

Date of orders:

16 May 2025

Decision date:

16 May 2025

Before:

Leeming JA at [1];
Kirk JA at [2];
Stern JA at [3]

Decision:

(1)   Leave to appeal is granted.

(2)   Applicant is to file its draft Notice of Appeal in the form in the combined red/white book by 4pm on 23 May 2025.

(3)   Appeal allowed.

(4)   The orders of the primary judge made on 18 July 2024 are set aside and in lieu thereof the application for judicial review is dismissed.

(5)   First respondent to pay the applicant’s costs of the appeal and of the proceedings at first instance.

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the medical assessor to whom the medical dispute was referred by the Personal Injury Commission under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error or error of law on the face of the record — where the primary judge did so err

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the delegate of the President of the Personal Injury Commission fell into jurisdictional error or error of law on the face of the record in concluding that he was not satisfied that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application under the Motor Accident Injuries Act 2017 (NSW) — where the primary judge did so err

Legislation Cited:

Motor Accident Injuries Act 2017 (NSW), ss 1.6, 4.11, 7.17, 7.20, 7.21, 7.23, 7.26, 10.2, sch 2

Supreme Court Act 1970 (NSW), ss 69, 101(2)(r)

Motor Accidents Compensation Act 1999 (NSW)

Motor Accident Injuries Regulation 2017 (NSW), reg 4(1)

Cases Cited:

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099

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

Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171

Insurance Australia Group (t/as NRMA Insurance) v Keen [2021] NSWSC 113

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

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

QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442

Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47

Rodger v De Gelder [2015] NSWCA 211

Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

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

Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Category:

Principal judgment

Parties:

Allianz Australia Insurance Limited (Applicant)
Dawa Yangzom (First Respondent)
Ian Cameron as Medical Assessor of the State Insurance Regulatory Authority of NSW (Second Respondent)
President of the Personal Injury Commission of NSW (Third Respondent)

Representation:

Counsel:
M Allars SC with C Allan (Applicant)
T Lynch SC with M Fraser (First Respondent)

Solicitors:
Sparke Helmore (Applicant)
LC Muriniti & Associates (First Respondent)
Crown Solicitor’s Office (Second and Third Respondents) (Submitting appearances)

File Number(s):

2024/00282405

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 870

Date of Decision:

18/07/2024

Before:

Schmidt AJ

File Number(s):

2024/00106109

HEADNOTE

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

Ms Yangzom was hit by a utility vehicle on 13 June 2018 whilst on a pedestrian crossing. Shortly after the accident she submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). A dispute arose between Ms Yangzom and Allianz Australia Insurance Limited (Allianz), the compulsory third party insurer of the vehicle, as to the percentage of permanent impairment resulting from Ms Yangzom’s injuries caused by the accident. On 29 August 2023 that medical dispute was referred to a medical assessor under s 7.20 of the Act. The injuries referred for assessment included injuries to Ms Yangzom’s cervical spine, shoulders, arms and buttocks. The medical assessor found that the injuries that Ms Yangzom suffered in the accident gave rise to permanent impairment of 4%. This meant that Ms Yangzom could not be awarded damages for non-economic loss in respect of her injuries: s 4.11 of the Act.

Ms Yangzom applied for review of the medical assessment. On 10 January 2024 a delegate of the President of the Personal Injury Commission concluded that he was not 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. This precluded Ms Yangzom’s application for review of the medical assessment being referred to a review panel: s 7.26(5) of the Act.

Ms Yangzom successfully sought judicial review of both the medical assessment and the delegate’s decision. The primary judge set aside both decisions. As regards the medical assessment, the primary judge identified multiple failures by the medical assessor to comply with the Motor Accident Guidelines issued by the State Insurance Regulatory Authority under s 10.2 of the Act (version 9.1, commencing on 1 April 2023) (the Guidelines), and found that the medical assessor had failed to comply with the approach required by the decision of Hall J in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 (“Nguyen”). Her Honour found that the delegate also fell into legal error in not properly evaluating whether the errors alleged in Ms Yangzom’s submissions had been made.

The principal issues before this Court on appeal were whether the primary judge erred in finding:

As to the medical assessment (ground 1)

(i) that the medical assessor erred in law by failing to comply with the requirements in cll 6.120 and 6.121 of the Guidelines as regards a report of a cervical MRI scan in January 2021;

(ii) that the medical assessor erred in law by failing to comply with the requirement in cl 6.41 of the Guidelines in not bringing inconsistencies to Ms Yangzom’s attention;

(iii) that the medical assessor erred in law by not recognising the presence of pain in assessing whether there was impairment of Ms Yangzom’s arms and buttocks, and in failing properly to apply the principles in Nguyen;

(iv) that the medical assessor erred in law by giving inadequate reasons;

(v) that the medical assessor erred in law by failing to comply with applicable guidance in converting upper extremity impairment to whole person impairment;

As to the delegate’s decision (ground 2)

(vi) that the delegate erred in law by failing to recognise that the medical assessor erred in stating that there were no imaging studies to review; and

(vii) that the delegate erred in law by failing to recognise that the medical assessor misunderstood how the Guidelines deal with pain and erred in the application of the Nguyen principles.

The Court (Stern JA, Leeming and Kirk JJA agreeing) held, granting leave to appeal and allowing the appeal:

As to the medical assessment (ground 1)

As to issue (i)

(1) It was more likely that the medical assessor found that the cervical MRI report was not relevant to his assessment of permanent impairment than that he failed to consider it. That was a matter for him and did not bespeak error nor a failure to comply with cll 6.120 and 6.121 of the Guidelines. In any event, a failure by the medical assessor to have regard to this report would not have constituted a constructive failure to exercise jurisdiction: [38]-[40].

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; Rodger v De Gelder [2015] NSWCA 211, applied.

As to issue (ii)

(2) The fact that the medical assessor recorded Ms Yangzom’s explanation for the identified “inconsistent movement at multiple body regions” led to the inference that this was drawn to her attention, such that cl 6.41 of the Guidelines was complied with: [42].

(3) The differences between the medical assessor’s findings and those of earlier reports were not inconsistencies which had to be drawn to Ms Yangzom’s attention under cl 6.41 at a medical assessment that took place approximately 17 months after the latter of those reports. Differences in findings could readily be explicable on the basis of a change in presentation over time: [43].

As to issue (iii)

(4) The medical assessor’s statement that “[t]he presence of pain in a body region is not indicative of an injury to that body region” should be construed as conveying that pain in a body region does not, of itself, establish that there is an injury to the body region. As such the medical assessor did not err in making this statement: [65].

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, applied.

(5) There was no error in the medical assessor’s reliance on there being no assessable impairment in the arms or buttocks in support of his conclusion as to the causation of those injuries as referred. This was reinforced by the medical assessor’s finding that there was no direct effect of spinal symptoms in the cervical or lumbar spine causing permanent impairment in another body part, which was consistent with no permanent impairment being identified in these body regions: [70]-[71].

(6) The medical assessor’s reasons did not indicate that he did not follow the guidance provided by Hall J in Nguyen. The natural reading of the medical assessor’s findings as to Nguyen was not that the arm and buttock symptoms were not secondary to spinal injuries but that they did not constitute permanent impairment: [73].

As to issue (iv)

(7) The medical assessor’s reasons for his findings as to the arm and buttock injuries were apparent from a reading of the medical assessment certificate as a whole. The somewhat bald terms of his conclusion should not distract attention from what was tolerably clear was the true force of his reasoning: [74]-[77].

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231; Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55, applied.

As to issue (v)

(8) The medical assessor complied with the applicable guidance when assessing Ms Yangzom’s shoulder impairment; it was apparent from the medical assessment that he repeated his assessments of range of motion, and followed cl 6.50(d) of the Guidelines when he found those movements to be inconsistent due to pain: [78]-[83].

As to the delegate’s decision

As to issue (vi)

(9) The delegate correctly identified cl 6.121 of the Guidelines and that the medical assessor’s findings did not suggest impairment greater than DRE Category I for all spinal regions. While this reasoning was sparse, it disclosed that the delegate considered that there was no possible failure to comply with the Guidelines suggested by the medical assessor’s approach to the relevant reports of radiological findings. The primary judge erred in concluding that the delegate should have identified possible error in the medical assessor observing that there were no imaging studies to review. There was no legal or jurisdictional error in the delegate’s finding that Ms Yangzom’s contentions to the contrary did not indicate possible error: [91]-[92].

As to issue (vii)

(10) There was no legal or jurisdictional error in the delegate’s reasoning as regards the arm and buttock injuries and in the construction and application of Nguyen. The medical assessor’s conclusion that there was no assessable impairment to the arms or buttocks necessarily answered Ms Yangzom’s submissions before the delegate in contending that the medical assessor had so erred: [93]-[95].

JUDGMENT

1. LEEMING JA: I agree with Stern JA.

2. KIRK JA: I agree with Stern JA.

3. STERN JA: Ms Yangzom was hit by a utility vehicle on 13 June 2018 whilst on a pedestrian crossing. Shortly after the accident she submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act) on account of injuries she described to her lower lumbar/sacral spine, right pelvis, right and left hip, right knee and patella, and shoulder. A dispute arose between Ms Yangzom and Allianz Australia Insurance Limited (Allianz), the compulsory third party insurer of the vehicle, as to the percentage of permanent impairment resulting from Ms Yangzom’s injuries caused by the accident. That was a medical dispute about the claim: s 7.17 and sch 2 of the Act. On 29 August 2023, a delegate of the President of the Personal Injury Commission (the delegate) referred that medical dispute to a medical assessor, Professor Ian Cameron (the medical assessor), under s 7.20 of the Act.

4. As set out in a certificate issued on 12 November 2023 under s 7.23(1) of the Act, the medical assessor found that the injuries that Ms Yangzom suffered in the accident gave rise to permanent impairment of 4%. This meant that Ms Yangzom could not be awarded damages for non-economic loss in respect of her injuries. Such damages are available only if the degree of permanent impairment caused is greater than 10%: s 4.11 of the Act.

5. Ms Yangzom applied under s 7.26 of the Act for review of the medical assessment. On 10 January 2024 the delegate concluded that he was not 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. This precluded Ms Yangzom’s application for review of the medical assessment being referred to a review panel: s 7.26(5) of the Act.

6. Ms Yangzom successfully sought judicial review of both the medical assessment and the delegate’s decision. The primary judge set aside both decisions (although it is not clear if this was on the basis of jurisdictional error or error of law on the face of the record or both). In support of her conclusion on the medical assessment, the primary judge identified multiple failures by the medical assessor to comply with the Motor Accident Guidelines issued by the State Insurance Regulatory Authority under s 10.2 of the Act (version 9.1, commencing on 1 April 2023) (the Guidelines), and found that the medical assessor had failed to comply with the approach required by the decision of Hall J in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351 (“Nguyen”). Her Honour found that the delegate also fell into legal error in not properly evaluating whether the errors alleged in Ms Yangzom’s submissions had been made.

7. Allianz contends that her Honour erred in finding jurisdictional error or error of law on the face of the record in both decisions and separately raises a concern about the form of the orders.

8. As this is a court of error, Allianz must persuade this Court that the primary judge was in error. For this purpose, it is necessary for this Court to consider the substance of the two decisions and whether the primary judge was correct to set them aside on the basis of vitiating error. These are questions on which there can be only one, right, answer. The standard of appellate review is thus the correctness standard: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.

9. For the reasons set out below, the appeal should be allowed.

Leave to appeal

10. Allianz seeks leave to appeal under s 101(2)(r) of the Supreme Court Act 1970 (NSW). This application raises questions of some public importance which go beyond being merely arguable. Leave to appeal should be granted: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[37].

Jurisdictional error or error of law on the face of the record

11. The primary judge explained in her reasons for judgment at [17(7)]-[17(8)] that there was no issue before her that, to succeed, Ms Yangzom had to show that the “decisions were not properly formed according to law” and that it was insufficient merely to establish error on the face of the record, referring to AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [28]. This language might suggest that the basis of the primary judge’s decision was jurisdictional error rather than error of law on the face of the record, although that distinction, important as it is, does not appear to have received any attention before the primary judge. To the extent that the primary judge identified an inadequacy of reasons, such error is generally considered not to be jurisdictional. In the case of bodies other than courts, the issue will be whether there is a statutory obligation to give reasons and, if so (in this case, s 7.23(7) of the Act) whether it has been complied with: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”) at [130] (Basten JA, Handley and McColl JJA agreeing). In the case of courts, there is ordinarily a requirement to give reasons, but its breach tends not to go to jurisdiction: see Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 at [58] (Kirk, Adamson and Ball JJA) and Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [25]-[46] (Kirk JA, White and Mitchelmore JJA agreeing).

12. As to what constitutes the record, it was common ground between the parties (consistent with Vegan at [130]) that the record included the medical assessor’s reasons. Neither party suggested that the position was different as regards the reasons of the delegate. As both parties approached the matter on that basis, for the purpose of this case I am prepared to assume (without deciding) that the medical assessor’s reasons constitute the face of the record under s 69 of the Supreme Court Act: cf, in a different context, the observations of Basten JA in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [37] and in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [9].

13. Given this, whether any errors in the medical assessment or the delegate’s decision are jurisdictional or are errors of law on the face of the record makes little practical difference. That is not, however, to diminish the significance of the distinction between the two, or the importance of parties addressing the proper characterisation of the error they allege in judicial review proceedings, as emphasised in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [19]-[20] (Leeming JA, Gleeson and Payne JJA agreeing) and Insurance Australia Group (t/as NRMA Insurance) v Keen [2021] NSWSC 113 at [26].

The grounds of appeal

14. By ground 1, Allianz contends that the primary judge erred in finding that the medical assessor:

(a)    fell into legal error by reason of inaccurate quotation of cl 6.40 of the Guidelines V9.1, made under the MAI Act which constituted a failure to apply the Guidelines V9.1;

(b)    fell into legal error by inaccurately stating that “[t]here were no imaging studies to review” when he had listed the “reports” of the imaging studies as relevant documents taken into account, when the Medical Assessor had correctly stated that there were no “studies” (being films, actual, digital or otherwise) as distinct from “reports”, before him;

(c)    failed to comply with the Guidelines V9.1 by not recognising the presence of pain in assessing whether there was impairment of the First Respondent’s arms and buttocks, when the Medical Assessor properly applied clause 6.38 of the Guidelines V9.1;

(d)    erred in failing properly to apply the principles outlined in Nguyen;

(e)    failed to comply with the requirement in clause 6.41 of the Guidelines V9.1 when the Medical Assessor complied with clause 6.41 of the Guidelines V9.1;

(f)    erred in law by failing to comply with Table 3 of the AMA4 Guides (as required by clause 6.56 of the Guidelines V9.1) in converting upper extremity impairment to Whole Person Impairment (“WPI”), when the Medical Assessor did comply with Table 3 of the AMA4 Guides;

(g)    erred in law by failing to comply with the Guidelines V9.1, when the Medical Assessor properly applied clause 6.121 of the Guidelines V9.1;

(h)    erred in law by giving inadequate reasons;

(i)    fell into any of the legal errors in paragraphs (a) to (h) above, without determining whether it was the legislative intention that a failure to comply with the relevant procedure should result in invalidity of the Medical Assessment.

15. By ground 2, Allianz contends that the primary judge erred in holding that the delegate:

(a)    made the same legal error as the Medical Assessor (see Ground 1(a) above) of incorrectly quoting clause 6.40 of the Guidelines V9.1;

(b)    erred in law in failing to recognise that the Medical Assessor (see Grounds 1 (b) and 1 (g) above) erred in stating “[t]here were no imaging studies to review”;

(c)    erred in law in failing to recognise that the Medical Assessor (see Ground 1(c) above) misunderstood how the Guidelines V9.1 deal with pain;

(d)    erred in law in failing to recognise that the Medical Assessor (see Ground 1 (d) above) erred in the application of the Nguyen principles;

(e)    erred in law in addressing any of the claimed failures by the Medical Assessor to follow procedures in the Guidelines V9.1, without determining whether it was the legislative intention that non-compliance with the relevant procedure should result in invalidity of the Medical Assessment;

(f)    fell into legal error by failing to find there was reasonable cause to suspect that the Medical Assessment of the Medical Assessor was incorrect in a material respect.

The medical assessment

16. A medical assessor is required to give a certificate as to the matters referred for assessment: s 7.23(1) of the Act. The referral thus sets the parameters for the assessment. Here, as accurately recorded in the medical assessment, the referral (dated 29 August 2023) was of a dispute as regards “[p]ermanent impairment” with the injuries to be assessed identified as:

“Cervical Spine - pain, stiffness and restricted movement in the neck

Lumbar Spine - pain in the lower part of the back, difficulty with prolonged standing and sitting, required to undergo physiotherapy management and occupational treatments, required to undergo cortisone injections.

Right arm - Pain and numbness

Right knee - pain and restricted movement of the right knee and laceration to the right knee.

Right Shoulder - fracture of the greater tuberosity of the right shoulder and pain, stiffness and restricted movement and adhesive capsulitis

Left arm - Pain and numbness

Left Shoulder - Pain, stiffness and restricted movement and adhesive capsulitis.

Buttocks - Buttock pain, soft tissue and nerve injury”.

17. The assessment of permanent impairment is to be expressed as a percentage and must be made in accordance with the Guidelines: s 7.21(1) of the Act. However, as is clear from the analysis of Basten AJ in Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099 at [50]-[51], considering temporal requirements in the Medical Assessment Guidelines made under the Motor Accidents Compensation Act 1999 (NSW), a provision such as s 7.21(1) does not necessarily have the consequence that non-compliance with an applicable guideline is jurisdictional error or error of law on the face of the record. Moreover, as his Honour found at [72], the proper application of such guidelines “is a matter for the medical assessors” although there may be a basis for judicial review “[i]f they adopt an approach which is manifestly unreasonable”.

18. A multitude of documents (comprising over 1,200 pages) were before the medical assessor. Ms Yangzom was also examined and a history was taken from her. She required the assistance of a Tibetan interpreter for the medical assessment. Notwithstanding this, Ms Yangzom did not contend before this Court that there was any error of understanding undermining the medical assessment. The medical assessor did not find Ms Yangzom to be an unreliable historian nor did he doubt the veracity of her complaints or account of symptoms.

19. The medical assessor’s key conclusions were as follows.

20. As to diagnosis, he said:

“In the incident on 13 June 2018, in which Ms Yangzom was injured as a pedestrian, she sustained soft tissue injuries to her right knee and right shoulder. She may have sustained a fracture of the greater tuberosity of the right humerus. She could have also sustained injuries to the left shoulder, cervical spine and lumbar spine.

Ms Yangzom has ongoing pain. There is now chronic pain with significant reduction in activities and chronic disability.”

21. The medical assessor did not identify what “pain” he was referencing here.

22. The medical assessor also noted that Ms Yangzom explained that her “inconsistent movement at multiple body regions” was on account of pain, but again he did not identify which body regions he was referencing. Given that he only identified inconsistent movement in the shoulders and right knee on clinical examination, it may be that he was referring only to those body regions.

23. Under the heading “Causation and reasons”, the medical assessor found that the injuries caused by the motor accident were:

“Cervical spine – soft tissue injury

Lumbar spine – soft tissue injury

Right knee – soft tissue injury

Right Shoulder – probable fracture of the greater tuberosity of the humerus and soft tissue injury

Left Shoulder – soft tissue injury.

These are the injuries listed in the application form expressed in usual medical terminology with the exceptions listed below. The laceration at the right knee has healed and there is no residual scarring.”

24. A “soft tissue injury” is defined in s 1.6(2) of the Act as:

“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

25. Supplementing this, reg 4(1) of the Motor Accident Injuries Regulation 2017 (NSW) provides that an “injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”

26. As to causation, the medical assessor continued:

“The following injuries WERE NOT caused by the motor accident:

• Right arm - Pain and numbness

• Left arm - pain and numbness

• Buttocks - Buttock pain, soft tissue and nerve injury

The presence of pain in a body region is not indicative of an injury to that body region.

Furthermore, there is no assessable impairment in this [sic] body regions.”

(Emphasis in original.)

27. In the bullet points the medical assessor should be understood to be identifying the injuries referred to him for medical assessment. That is consistent with his use of bullet points in relation to the injuries he found were caused by the accident, and his explanation for his amendment to the terminology there used.

28. The medical assessor went on to determine the degree of permanent impairment, considering only those injuries that he had found were caused by the motor accident. As regards each of the cervical and lumbar spine, the medical assessor said that:

“The Nguyen judgement [sic] issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.”

29. The findings of the medical assessor as described at [26]-[27] above are considered in more detail below.

30. Only limited aspects of the medical assessor’s decision, considered below, were found by the primary judge to involve vitiating error. In each respect, Allianz contends that the primary judge’s conclusion was erroneous.

The January 2021 cervical MRI scan

31. The documentation before the medical assessor included a report dated 7 January 2021 of an MRI scan of Ms Yangzom’s cervical spine and brachial plexus (the cervical MRI report and scan, respectively) but there is no reference to this report (or to the scan) in the medical assessment.

32. Relevantly, the cervical MRI report stated:

“Findings:

Degenerative changes are present, the individual levels are as follows:

…

C7-T1: Annular bulging with severe facet hypertrophy on the left. Left foraminal narrowing impinging on the exiting left C8 nerve root.

…

Conclusion:

Degenerative changes are present. Foraminal narrowing is most conspicuous at C7-T1 on the left with impingement of the exiting C8 nerve root.”

33. A letter from Professor Kandiah, rheumatologist, dated 29 January 2021 (also before the medical assessor) described the cervical MRI scan as “reassuring”. He wrote that the cervical spine injury was “primarily a soft tissue injury” and that there was an “absence of structural bony and disc damage”. He also identified, under the heading “Cervical Spine”, that Ms Yangzom had “symptoms radiating particularly to the right shoulder and upper limbs” which he said were “all consistent with her original injuries based on my clinical assessment previously and the radiological assessments now.” That indicates that Professor Kandiah considered that the symptoms in Ms Yangzom’s upper limbs were secondary to her injury to the cervical spine.

34. The cervical MRI report was also referred to in reports of Dr Conrad, surgeon, dated 23 April 2021, and Dr Bodel, orthopaedic surgeon, dated 14 June 2022, both prepared for Ms Yangzom in support of her claim. Dr Conrad also identified that Ms Yangzom had “some radiation of pain in both arms … [that is] worse when she is standing, walking, lifting or trying to reach anything with her right arm.” Dr Bodel noted that Ms Yangzom had “numbness and tingling all the way into the right hand” and “right hip, lower back and buttock pain” and also reported pain in both arms. Both of these reports were identified by the medical assessor as relevant documents.

35. In its submissions on the medical dispute dated 27 January 2023, Allianz disputed that the degenerative changes shown on the cervical MRI report were attributable to the motor accident. Ms Yangzom, for her part, referred to both the cervical MRI report and Professor Kandiah’s reliance upon that report in his letter of 20 January 2021 in a table of material supporting her submissions on the medical dispute.

36. Citing the absence of any reference in the medical assessment to the cervical MRI report as an example, the primary judge found that the medical assessor had failed to accord with his obligations under cll 6.120 and 6.121 of the Guidelines: J[94]. Allianz challenges this conclusion by ground 1(g) of its notice of appeal. Given that the only report specifically identified by the primary judge is the cervical MRI report I will confine my consideration of this sub-ground of appeal (at [37]-[40] below) to this report.

37. Clause 6.120 of the Guidelines relevantly provides that the assessment should include a review of all relevant records and findings of relevant diagnostic tests available at the assessment and that imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. Clause 6.121 includes that “[t]o be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury.”

38. There are two possible explanations for the failure of the medical assessor to refer to the cervical MRI report in the medical assessment. First, the medical assessor may have simply missed the report and did not consider it at all. Given that the documentation before him included three separate reports of MRI scans (on the cervical spine, right shoulder and right knee) dated 7 January 2021, it is possible that the cervical MRI scan simply slipped through the cracks in his review of documentation. This could explain why he made no reference to it, but did include reference to the reports of the MRI scans of the right shoulder and knee on the same date, under the heading “Summary of relevant documentation”.

39. The second possibility is that the medical assessor considered the cervical MRI report but found that it was of no relevance to his task of assessing permanent impairment and did not rely upon it in support of his impairment rating. Whilst the cervical MRI report disclosed only degenerative changes, the right shoulder and right knee MRI reports disclosed both degenerative and inflammatory changes and that may explain reference by the medical assessor to the latter but not the former. Moreover, it is clear from Professor Kandiah’s letter of 29 January 2021, discussed at [33] above, that the cervical MRI scan was interpreted as “reassuring”. Given the medical assessor’s finding that the cervical spine injury was a soft tissue injury, it would be readily understandable that the medical assessor did not consider that the cervical MRI report required separate mention. Moreover, the medical assessor did refer to the summary of medical reports prepared by Ms Yangzom’s solicitor (which included reference to both the cervical MRI report and Professor Kandiah’s letter of 29 January 2021), to “other reports from [Professor] Kandiah”, which would have included the 29 January 2021 letter, and to Dr Conrad’s April 2021 report and Dr Bodel’s June 2022 report, both of which referred to the findings of the cervical MRI report.

40. Having regard to the matters set out above, I am not satisfied that the medical assessor failed to consider the cervical MRI report. It is more likely that the medical assessor simply found that that report was not relevant to his assessment of permanent impairment. That was a matter for him and does not bespeak error or a failure to comply with cl 6.120 of the Guidelines. In any event, consistent with the analysis in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [14]-[22] (Basten JA, McColl and Macfarlan JJA agreeing) and Rodger v De Gelder [2015] NSWCA 211 at [107]-[109] (Gleeson JA, Macfarlan and Leeming JJA agreeing), given the interpretation of the cervical MRI scan by Professor Kandiah, a failure by the medical assessor to have regard to this report would not have constituted a constructive failure to exercise jurisdiction. I would thus uphold ground 1(g) of the notice of appeal.

Inconsistencies noted by the medical assessor

41. The medical assessor observed that his own findings on examination differed from those of some other doctors who had examined Ms Yangzom over the period of nearly five and a half years between the motor accident and his examination. He also identified that:

“Ms Yangzom had inconsistent movement at multiple body regions. She said that pain in those body regions prevented her moving them more fully.”

42. The primary judge found that the medical assessment certificate did not suggest that the inconsistencies that the medical assessor observed had been drawn to Ms Yangzom’s attention: J[82]. In context, this seems to be a reference both to the inconsistent movements the medical assessor observed and to the inconsistencies he identified between his findings and those of other doctors over time. Her Honour appears to have characterised this as a failure to comply with cl 6.41 of the Guidelines which provides that inconsistencies between a medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities must be brought to the injured person’s attention.

43. I disagree. I would infer from the fact that the medical assessor recorded Ms Yangzom’s explanation for the identified “inconsistent movement at multiple body regions” that this was drawn to her attention. As to the differences between the medical assessor’s findings and those of Dr Conrad in April 2021 and Dr Bodel in June 2022, I would not regard these as inconsistencies which had to be drawn to Ms Yangzom’s attention at a medical assessment in November 2023, approximately 17 months after the latter of these two reports. Differences in findings could readily be explicable on the basis of a change in presentation over time. To the extent that this was a matter that the primary judge relied upon in support of her finding of jurisdictional error or error of law on the face of the record, I would thus uphold ground 1(e) of the notice of appeal.

Radiological and medical imaging

44. Under the heading “Summary of relevant radiological and medical imaging and other investigations”, the medical assessor said that “[t]here were no imaging studies to review.” I would read this as nothing more than a statement that the medical assessor did not have radiological studies to review (as opposed to the reports of such studies). I would thus disagree with the primary judge’s finding at J[32]-[34] that, contrary to his statement, the medical assessor did in fact have imaging studies to consider. However, her Honour did not characterise this as a legal error. It is thus unnecessary to consider ground 1(b) of the notice of appeal which is predicated upon the primary judge having found such legal error.

The medical assessor’s reference to an out-of-date version of the Guidelines

45. As regards Ms Yangzom’s injuries to her right and left shoulders, it is common ground that the medical assessor cited an out-of-date version of the Guidelines. The primary judge did not find that this was a legal error but observed that this did cast doubt on the medical assessor’s adherence to the applicable guidelines: J[44]. Having regard to the primary judge’s finding, Allianz’ grounds of appeal misfire to the extent that they contend at ground 1(a) that the primary judge found legal error in this regard. In these circumstances I do not propose to consider ground 1(a) further.

The arm and buttock symptoms

46. As set out above, the injuries referred for assessment included injuries to the right and left arm and buttocks, but the medical assessor found that those injuries were not caused by the accident.

47. As to these injuries, under the heading “Current symptoms”, the medical assessor noted that on the day of the assessment Ms Yangzom described right arm pain felt also in the right shoulder and neck, and some left leg pain. Together with right knee pain, this was the only pain identified by the medical assessor under the heading “Current symptoms”. It may be that Ms Yangzom complained of additional pain when explaining why her “movement at multiple body regions” was inconsistent, but no clear conclusion can be drawn as to this: see [21] above.

The material before the medical assessor

48. The medical reports and correspondence before the medical assessor included references, over and above that in Professor Kandiah’s letter and the reports of Dr Conrad and Dr Bodel referred to at [33] and [34] above, to Ms Yangzom suffering from numbness or pain (or “symptoms”) in her arms or lower limbs and to these being secondary to other injuries or referred pain. For example, a letter of 8 November 2018 from Dr Sherlock, orthopaedic surgeon, said that Ms Yangzom had aches and pains radiating to her neck and down her arm and characterised these as “secondary”; a report dated 20 November 2020 from Chris Stacey, physiotherapist, spoke of chronic long term pain in Ms Yangzom’s neck “with referral into both upper arms” and chronic long term pain in her lower back “with referral into both lower limbs”; and a letter of 23 June 2022 from Dr Sherlock said that Ms Yangzom “continues to experience neck pain with radiation to her hand.” Before the medical assessor there was also a report of Natalie Bruce, exercise physiologist, dated 19 July 2022 which identified Ms Yangzom’s “extreme disability of the upper limbs” and assessed that she may be experiencing complex regional pain syndrome.

48. Whilst the medical assessor referred to some of these reports by title, save for one reference to Dr Sherlock’s observation of neck pain radiating to the left hand, he did not refer to any of the findings in these reports or correspondence relating specifically to the arms or buttocks (or lower limbs).

Clinical examination

50. On clinical examination, the medical assessor’s findings included markedly and symmetrically reduced range of motion (to 50% normal) in all planes of the cervical spine but with “no non-verifiable radicular complaints present”. According to the Guidelines at table 6.8, “non-verifiable radicular complaints” are:

“[S]ymptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”

51. The medical assessor also found no neurological abnormalities in the upper extremities, markedly and symmetrically reduced range of motion (to 50% normal) in all planes of the lumbar spine but with no non-verifiable radicular complaints, and no neurological abnormalities in the lower extremities.

The primary judge

52. The medical assessor’s conclusion that Ms Yangzom’s injuries (as referred) of the arms and buttocks were not caused by the accident, as set out at [26] above, was found by the primary judge to involve legal error because it did not comply with the Guidelines and also reflected a misunderstanding of, and failure to apply, the decision of Hall J in Nguyen: J[21], [52]-[69]. The primary judge also found that the medical assessor failed to disclose the path of reasoning which led to his conclusions as to those injuries and that this was a failure to comply with cl 6.18 of the Guidelines: J[70].

53. In support of her conclusions, the primary judge observed that the Guidelines recognise that the presence of pain can be indicative of injury and that Allianz accepted that “pain can follow injury”: J[47]. The primary judge found that it was incumbent upon the medical assessor to address whether the symptoms in Ms Yangzom’s arms and buttocks were caused by the injuries to Ms Yangzom’s cervical and lumbar spine and shoulders which the medical assessor had found to be caused by the motor vehicle accident: J[69].

54. Allianz challenged the primary judge’s findings of error on the part of the medical assessor as regards his consideration of Ms Yangzom’s arm and buttock symptoms in grounds 1(c) and (d) of its notice of appeal. Allianz contended that the medical assessor’s clinical findings were such that he “had no option but to conclude that there was no injury to the arms or buttocks caused by the accident.” In this regard Allianz relied in particular on the medical assessor’s findings on clinical examination that there were no non-verifiable radicular complaints present in the cervical or lumbar spine, a full range of motion at the upper and lower extremity joints, and no neurological abnormalities in the upper or lower extremities. Allianz submitted that those findings encompassed both the arms and the buttocks. Allianz also relied upon the medical assessor’s findings that there was no direct effect of cervical or lumbar spinal symptoms causing permanent impairment in another body part.

The task for the medical assessor

55. As set out above, the task for the medical assessor is defined by the ambit of the medical dispute as referred for assessment. The relevant medical assessment matter here was that set out in sch 2, cl 2(a) of the Act, namely:

“[T]he degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.

56. The medical dispute referred is the dispute which has in fact arisen between the parties: Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 (“Mandoukos”) at [73]-[78] (Stern JA, Leeming and Kirk JJA agreeing). Unfortunately, here, only some of the parties’ submissions before the medical assessor are before this Court. Nonetheless, it is tolerably clear that there was a dispute between Ms Yangzom and Allianz as to whether the arm injuries of which Ms Yangzom complained were caused by the accident (see eg Ms Yangzom’s reply submissions before the Commission at [28]) and possibly also as to whether there was any injury to the buttocks (although this is not clear). In any event, Ms Yangzom did not contend that the question of whether any of the matters referred were in fact “injuries” or were caused by the accident was not properly before the medical assessor.

57. In these circumstances, I will proceed on the basis that the medical dispute before the medical assessor, as referred on 29 August 2023, encompassed two questions for his assessment:

1. whether the injuries as referred for assessment were injuries caused by the accident (see also cll 6.5-6.7 of the Guidelines); and

2. the extent of permanent impairment resulting from the injury or injuries caused by the accident.

58. The second of these questions necessarily encompassed, within the ambit of causation, permanent impairment both directly and indirectly resulting from the injury caused by the accident. As held by Hall J in Nguyen at [92]-[99], injury to one part of the body can affect or lead to impairment in a related or connected part. Similarly, an injury to one part of the body may have the consequence that another body part becomes injured, as, for example, where an injury causing dizziness leads to the injured person suffering a fall.

59. It should also be noted, in this regard, that “injury” is defined in s 1.4 of the Act to mean “personal or bodily injury” in what is otherwise an entirely inclusive definition. Some guidance as to what is meant by “personal or bodily injury” can be taken from the definitions of “threshold injury” and “soft tissue injury” in ss 1.6(1) and (2) of the Act respectively. Section 1.6(1) defines a threshold injury to mean “a soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness”. The latter makes it clear that an illness may be personal or bodily injury within the meaning of the Act. It also suggests that other forms of psychological or psychiatric compromise or disorder may fall within the ambit of injury as defined in the Act. The former is defined in s 1.6(2) to mean:

“A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

60. This suggests that an injury is something that happens to the body or person in the sense that there is some form of damage or compromise to bodily tissue or its functioning. Whilst such damage or compromise could manifest in the injured person feeling pain (including because of neurological damage), it is difficult to see how pain of itself could fall within the definition of a soft tissue injury in s 1.6(2) of the Act. Given the significance of the definition of threshold injury in the operation of the Act, this makes it unlikely that Parliament intended pain of itself to be an injury within the meaning of the Act.

61. That is consistent with the explanation of the meaning of “injury” in the Act, as set out in Mandoukos at [52]:

“In the context of workers compensation legislation, the ‘ordinary sense’ of the word ‘injury’ has been held to mean ‘some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not “sudden”, is at least “identifiable”‘: Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 at [75] (Gageler J); see also at [45] (French CJ, Kiefel, Nettle and Gordon JJ). In my judgment, whilst this definition was arrived at in a different legislative context, that understanding of the word ‘injury’ provides guidance as to the ordinary meaning of ‘personal or bodily injury’ in s 1.4 of the Act, at least as regards physical, as opposed to psychological or psychiatric, injury.”

62. Having regard to these matters, I would not conclude that the term “personal or bodily injury” includes the mere suffering of pain in a body part, albeit that the presence of pain may well be a symptom or effect of personal or bodily injury.

63. Impairment is defined in the Guidelines at cl 6.9 as:

“[A]n 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.”

64. A “deviation from normality” would naturally include pain in the particular body part which could thus be impairment provided there is also some deviation in functioning. That reading of cl 6.9 of the Guidelines is confirmed by cl 6.38, which makes it clear that pain may itself constitute a form of impairment:

“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”

Consideration

65. It necessarily follows from this analysis that the medical assessor would have erred had he reasoned that pain could never be indicative of an injury to a particular body region. I would, however, infer that the somewhat bald and conclusory statement the medical assessor made by way of partial explanation of his finding that Ms Yangzom’s arm and buttock injuries, as referred, were not caused by the accident was not intended to convey that meaning. Rather, I would construe the medical assessor’s statement as conveying the uncontroversial proposition that pain to a body region does not, of itself, establish that there is an injury to the body region. That is an available construction of the words the medical assessor used, and, given his background of medical training and expertise, it would be implausible for him to have intended to suggest that pain could not be a sign or symptom of injury. I would thus not find that the medical assessor erred in making this statement as one of the reasons for his findings as to causation of the arm and buttock injuries referred.

66. So construed, the statement that pain does not, of itself, establish injury was relevant here because, as set out above, the medical assessor had to consider whether there was any injury, caused by the accident, to the arms or buttocks. If pain to those regions of the body, of itself, established injury within the meaning of the Act then that may have influenced his assessment.

67. The medical assessor’s statement, as I have construed it, that pain did not of itself establish injury was of particular relevance in the case of Ms Yangzom. This is because, as the medical assessor recorded when considering relevant documentation, the injuries identified in the certificates of capacity following the accident were injuries to Ms Yangzom’s right shoulder, right knee and pelvis. Moreover, the medical assessor, in his findings as to diagnosis, specifically found that the injuries sustained in the accident were to Ms Yangzom’s right knee and right shoulder and possibly also to the greater tuberosity of the right humerus, left shoulder and cervical and lumbar spine. There was no finding of even a possible injury to Ms Yangzom’s arms or buttocks in the accident. Given that the medical assessor had to assess the injuries as referred, the first inquiry for him was whether injuries to these body regions resulted from the injuries sustained in the accident and that, in turn, raised the question whether the symptoms complained of established injury in the first place. There was also a second inquiry, considered below, which was whether, assessed not as freestanding injury but as symptoms secondary to the injuries sustained in the accident, these symptoms amounted to permanent impairment and if so to what extent.

68. As to the first of these inquiries, the medical assessor’s conclusion as to causation of these injuries was explained by him not just on the basis that pain did not of itself establish injury (as set out above) but also on the basis of the, again somewhat conclusory, statement that there was “no assessable impairment” in the arms or buttocks. Unlike the primary judge, I am satisfied that, reading the medical assessment as a whole and having regard to the definition of impairment in the Guidelines (set out at [63] above), it is clear what the medical assessor meant by this. He was simply conveying that, on assessment, he did not find any impairment in these body regions. I would also understand this statement on the basis that it was both of itself a finding that no impairment in these body regions was identified by him on assessment, which in part relied upon other findings that were made during the course of the assessment. That is consistent with the proper approach to construing the medical assessment as a whole.

69. There are two parts of the medical assessment that are particularly relevant in this regard. First, the medical assessor’s record of his clinical examination where he recorded no limitation of function or neurological abnormality in either the upper or lower extremities. As was accepted by senior counsel for Ms Yangzom during the hearing, this is a finding that no numbness was found. This finding would encompass the arms and, at least, the legs. Whilst the record of the medical assessor’s clinical examination does not include any express reference to the buttocks, and there was no evidence as to whether the buttocks fell within the ambit of the lower extremities, I would infer that no nerve damage or soft tissue injury in the buttocks was identified by the medical assessor on assessment. This is in part because, given the definition of impairment in the Guidelines (set out above at [63] above) that is implicit in the medical assessor’s statement that there was no assessable impairment in the arms or buttocks. It is also because I would infer that if any nerve damage or soft tissue injury to the buttocks was suggested on clinical examination, the medical assessor would likely have recorded this given the injury to the buttocks was referred to him for assessment.

70. I would thus not find error in the medical assessor’s reliance on there being no assessable impairment in the arms or buttocks in support of his conclusion as to causation of those injuries.

71. That conclusion is reinforced by the medical assessor’s finding, set out under the heading “Determinations – permanent impairment”, that there was no direct effect of spinal symptoms in the cervical or lumbar spine causing permanent impairment in another body part. Given that the symptoms in the arms and buttocks were identified in the material before the assessor as being secondary to other injuries, this finding is consistent with no permanent impairment being identified in these body regions. Whilst the medical assessor did not separately consider whether Ms Yangzom’s symptoms in her arms and buttocks were secondary to her shoulder injuries, there was only an oblique suggestion in the material before the medical assessor (in Dr Sherlock’s letter of 8 November 2018) that the symptoms in her arm might be secondary to her shoulder injury whereas Professor Kandiah’s clear opinion was that the arm pain was radiating from the injury to the cervical spine.

72. In this regard there is potentially some tension between the medical assessor’s conclusion that there was no assessable impairment in the arms or buttocks and his diagnosis that Ms Yangzom had ongoing chronic pain with significant reduction in activities and chronic disability. On a fair reading of the medical assessment as a whole, however, I would infer that the significant reduction in activities and chronic disability which the medical assessor found was not consequent upon any impairment of the arms or buttocks. That is how, naturally, the various findings of the medical assessor should be reconciled, noting that the diagnosis of chronic pain and disability did not specify where that pain was located.

73. Unlike the primary judge, I would not conclude that the medical assessor’s reasons indicate that he did not correctly follow the guidance provided by Hall J in Nguyen. The medical assessor has specifically referenced Nguyen and found that there was no direct effect of spinal symptoms causing permanent impairment in another body part. The primary judge’s finding of error in this regard is predicated upon an assumption that the medical assessor did not consider whether or not the buttock or arm symptoms were secondary to the spinal injuries. There is no basis for such an assumption. Rather, the natural reading of the medical assessor’s findings as to Nguyen is not that the arm and buttock symptoms were not secondary to spinal injuries, but that they did not constitute permanent impairment.

74. I am also satisfied that the medical assessor adequately disclosed his reasons for making his findings as to the arm and buttock injuries. As this Court held in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76]-[77] (Bell P, Ward JA agreeing):

“What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456.

These principles include the following:

(i)    ‘Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ);

(ii)    the court should not read passages from the reasons for decision in isolation from others to which they may be related: Politis v Commissioner of Taxation (1988) 20 ATR 108 at 111; [1988] FCA 739 at [14];

(iii)    the reasons must be read fairly and as a whole: Ex parte Applicant at [147] (Kirby J); Wu Shan Liang [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6] at 291; Bisley [Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 251];

(iv)    the reasons recorded ought not to be inspected with a fine-tooth comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291;

(v)    there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal’s thoughts or verbal slips: Pozzolanic at 287; Wu Shan Liang at 272 and 291.”

75. Moreover, as Leeming JA held in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6] (Meagher JA agreeing):

“Although it is undesirable for the statement of reasons to leave important matters to inference, doing so does not necessarily breach the obligation to set out the Assessor’s reasons. The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a ‘beneficial construction’ to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged.”

76. Here, the medical assessor’s reasons for finding, in effect, that there was no injury to Ms Yangzom’s arms or buttocks are apparent from a reading of the medical assessment certificate as a whole. Further, the somewhat bald terms of his conclusion should not distract attention from what is tolerably clear is the true force of his reasoning. This was the matter principally relied upon by the primary judge in support of her conclusion that the medical assessor’s reasons were inadequate. To the extent that the primary judge also relied upon her Honour’s findings of non-compliance with the Guidelines in support of her finding that the medical assessor’s reasons were inadequate, it follows from my findings set out above that I would reach a different conclusion from that reached by her Honour.

77. In these circumstances, I would uphold grounds 1(c), (d) and (h) of the notice of appeal.

The medical assessor’s assessment of shoulder impairment

78. The medical assessor found that it was not appropriate to rely upon the measured range of motion when assessing impairment of Ms Yangzom’s shoulders. This appears to be because he found movements of the shoulder to be inconsistent due to pain. That is consistent with the Guidelines at cl 6.50(d) where it is provided that range of motion should not be used as a valid parameter of impairment evaluation if there is inconsistency in range of motion.

79. As to this, the primary judge observed that the medical assessment did not suggest that the medical assessor attempted three repetitions in his testing of Ms Yangzom’s range of motion in the shoulder: J[86]. Her Honour found that this was required by cl 6.50(c) of the Guidelines: J[102], which provides that “if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.” Her Honour also observed that the medical assessor had not appeared to have approached the testing of range of motion in the shoulders by applying the guidance in s 3.1j of AMA4 Guides, which her Honour said specify how range of motion should be measured, nor did he use table 3 in the AMA4 Guides to relate those measurements to whole person impairment: J[87]. She found that the reason for this is unclear: J[88]

80. Contrary to the primary judge’s finding, however, it is apparent from the medical assessment that the medical assessor repeated his assessments of range of movement in Ms Yangzom’s shoulders. He described the observed range of movement in each plane as “maximum observed movements”. This description suggests that the figures recorded in the medical assessment were the highest percentage obtained in at least two repetitions. Moreover, the medical assessor’s issue with the measurements he obtained was not reliability (within cl 6.50(c) of the Guidelines), it was inconsistency (within cl 6.50(d) of the Guidelines). Where such inconsistency is found, cl 6.50(d) provides:

“[T]hen [range of motion] should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)”.

81. Further, under cl 6.50(e), it is provided that:

“[I]f range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”

82. In addition, cl 6.47 of the Guidelines goes no higher than indicating that s 3.1 of the AMA4 Guides “provides guidance on methods of assessing permanent impairment involving the upper extremity.” That is not language suggesting a requirement of rigid adherence to the AMA4 Guides. That is consistent with cl 6.48 of the Guidelines that provides that “[a]ssessment of the upper extremity involves a physical evaluation that can use a variety of methods.” Moreover, the medical assessor found that 3% upper extremity impairment converts to 2% whole person impairment, which, whilst not identified as such, is entirely consistent with table 3 in the AMA4 Guides and indicates that he relied upon that as required by cl 6.56 of the Guidelines.

83. In these circumstances I respectfully disagree with the primary judge’s finding that the medical assessor appears not to have complied with the applicable guidance. To the extent that the primary judge relied upon these findings in her ultimate findings on the application for judicial review, I would also uphold ground 1(f) of the notice of appeal.

Conclusion as to the medical assessment

84. It follows that Allianz’ appeal against the primary judge’s orders setting aside the medical assessment should be allowed. In these circumstances, it is unnecessary to consider ground 1(i) of the grounds of appeal.

The delegate’s decision

85. The question for the delegate was whether 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: s 7.26(5) of the Act. As explained in Mandoukos:

“[92]    In Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (‘Meeuwissen’), considering s 63(3) (now s 63(2B)) of the 1999 Act which is in relevantly similarly language to s 7.26(5), Basten JA (Beazley JA and Sackville AJA agreeing) described the role of the proper officer under s 63(3) of the 1999 Act as ‘that of a gate-keeper’: at [23], and held that the language of then s 63(3) was ‘inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error’: at [22]. His Honour also identified that ‘what must be incorrect in a material respect is “the medical assessment” and not the certificate which results from the assessment’: at [19].

[93] The language of s 7.26(5) also requires consideration of what are, in a particular case ‘the particulars set out in the application’. In Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [43] (‘Marsh’), White JA (Basten and Macfarlan JJA agreeing) held that the ‘particulars set out in the application’ referred to in (the relevantly similar) s 63(3) of the 1999 Act were ‘those matters stated in the attached submissions’: at [43]. White JA held that it is not reasonably arguable that the words in s 63(3) ‘having regard to the particular set out in the application’ should be read as ‘having regard to all the materials before (or available to) the proper officer’, as was submitted by the respondent in this case: at [45]. His Honour added that this is not to say that s 63(3) is ‘to be read as meaning that the proper officer is to have regard only to the particulars set out in the application…[b]ut it does mean that the proper officer’s reasons will need to address the particulars set out in the application (in this case, the accompanying submission), and should be read in this light’: at [45].”

86. As the primary judge correctly observed, s 7.26(5) presents a “low statutory bar”.

87. The delegate properly directed himself by reference to the threshold in s 7.26(5) but was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

88. The primary judge found that the delegate had not carried out the required evaluative exercise and, in particular, had erred in not identifying possible error in:

1. the medical assessor’s finding that there were no imaging studies to review and his failure to refer to relevant radiological reports: J[129]; and

2. the medical assessor’s findings as regards the arm and buttock injuries and in misconstruing and misapplying Nguyen: J[130]-[134].

89. Both of these matters were clearly raised by Ms Yangzom in her application for review of the medical assessment. Allianz does not suggest otherwise.

90. Allianz’ grounds of appeal against these findings rely, understandably, on the same matters as those relied on as regards the primary judge’s findings of legal or jurisdictional error in the medical assessment. Allianz also contends that the primary judge did not identify legal error by the delegate.

91. As to (1) at [88] above, the delegate correctly identified the relevant terms of cl 6.121 of the Guidelines and that the medical assessor’s clinical findings did not suggest impairment greater than DRE Category I for all spinal regions. Whilst this reasoning is somewhat sparse, it discloses that the delegate considered, as do I, that there was no possible failure to comply with the Guidelines suggested by the medical assessor’s approach to the relevant reports of radiological findings. As for the primary judge’s conclusion that the delegate should have identified possible error in the medical assessor observing that there were no imaging studies to review, for the reasons set out at [44] above I would respectfully find that the primary judge erred in this regard.

92. There is no legal or jurisdictional error in the delegate’s finding that Ms Yangzom’s contentions to the contrary did not indicate possible error. I would uphold ground 2(b) of Allianz’ notice of appeal.

93. As to (2) at [88] above, the delegate found:

“Fifth, and with respect to the alleged injuries to the right arm, left arm and buttocks, the Assessor found no assessable impairment (see paragraph 21 of the Certificate reasons). Again, pain is not a valid indicator for impairment and the claimant does not particularise how there is impairment to these alleged injuries”.

94. Given my findings set out above, I would also find that there was no legal or jurisdictional error in this reasoning. Ms Yangzom’s submissions before the delegate as regards the injuries to the arms and buttocks simply contended that the medical assessor had erred in applying Nguyen and that the medical assessor did not consider whether the arm symptoms were secondary to the neck or shoulder injury nor whether the buttock pain was related to the lumbar spine injury. In her reply submissions before the delegate, Ms Yangzom submitted that the medical assessor had erred because:

“[H]aving found no symptoms or signs currently present to justify greater than 0% WPI of the cervical spine, [he] considered that it must follow that there were no consequential impairments. A similar path of reasoning was adopted in relation to the lumbar spine.”

95. As the delegate found, however, the medical assessor’s conclusion that there was no assessable impairment to the arms or buttocks necessarily answered these complaints. In any event, the medical assessor was plainly alive to the relevance of Nguyen and addressed the possibility of indirect impairment. Whilst the medical assessor made no findings to this effect specifically as regards the shoulder, that does not suggest legal error in circumstances where he was clearly aware of Nguyen and made findings as to possible secondary impairment where he considered appropriate. I would thus uphold grounds 2(c) and (d) of Allianz’ notice of appeal.

96. As for ground 2(a) of Allianz’ notice of appeal, I would reject the premise of the ground. Whilst the primary judge observed that the delegate incorrectly quoted cl 6.40 of the Guidelines, that was not the basis for her Honour’s decision.

97. It follows that Allianz’ appeal against the primary judge’s orders setting aside the delegate’s decision should be allowed. It is unnecessary, in these circumstances, to address grounds 2(e) or (f) of the grounds of appeal.

Conclusion

98. Having regard to my conclusions, it is unnecessary to address ground 3, which relates to the form of the primary judge’s orders.

99. Costs should follow the event. No submission was made to the contrary.

100. The orders I propose are:

1. Leave to appeal is granted.

2. Applicant is to file its draft Notice of Appeal in the form in the combined red/white book by 4pm on 23 May 2025.

3. Appeal allowed.

4. The orders of the primary judge made on 18 July 2024 are set aside and in lieu thereof the application for judicial review is dismissed.

5. First respondent to pay the applicant’s costs of the appeal and of the proceedings at first instance.

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Decision last updated: 16 May 2025