Bradley v IAG Pty Ltd t/as NRMA Insurance Ltd

[2020] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation:

Bradley v IAG Pty Ltd t/as NRMA Insurance Ltd [2020] NSWSC 792

Hearing dates:

9 August 2019

Decision date:

24 June 2020

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) The three certificates issued by the third defendant on 5 November 2018 are set aside.

(2) The plaintiff’s application for review dated 8 May 2018 is remitted to the second defendant, to be referred to a panel of medical assessors for determination in accordance with s 63 of the Motor Accidents Compensation Act 1999 (NSW).

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

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW) – whether medical review panel’s decision affected by error of law on the face of the record or jurisdictional error – whether correct legal test as to causation applied – whether review panel findings were unreasonable and without probative evidence – whether guidelines as to apportionment for pre-existing condition were correctly applied – whether review panel engaged with the plaintiff’s articulated case – review panel found not to have responded to plaintiff’s substantial argument – review panel decision set aside – matter remitted for re-determination

Legislation Cited:

Accident Compensation Act 1985 (Vic), s 68

Motor Accidents Compensation Act 1999 (NSW), ss 44, 58, 59, 60, 61, 62, 63, 133

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244

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

Bradley v Insurance Australia Ltd t/as NRMA Insurance (2015) 71 MVR 496; [2015] NSWSC 950

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

Dranichnikov v Minister for Immigration and Multicultural Affairs 77 ALJR 1088; [2003] HCA 26

Duncan v Independent Commission Against Corruption [2016] NSWCA 143

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211

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

Texts Cited:

New South Wales, State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (1 June 2018)

Category:

Principal judgment

Parties:

Colin Bradley (Plaintiff)
IAG Pty Ltd trading as NRMA Insurance Ltd (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
A review panel appointed by the State Insurance Regulatory Authority constituted by Assessors Burns, Crane and Dixon (Third Defendant)

Representation:

Counsel:
E Romaniuk SC; J Masur (Plaintiff)
M Robinson SC; J Gumbert (First Defendant)

Solicitors:
Farrell Lusher Solicitors (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
Crown Solicitor’s Office (New South Wales) (Second and Third Defendant)

File Number(s):

2019/58244

Judgment

1. HIS HONOUR: On 21 February 2019, the plaintiff, Colin Bradley, filed a summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a decision and statement of reasons issued by the second defendant, the State Insurance Regulatory Authority (“SIRA”) and made by the third defendant, which is a medical review panel appointed by SIRA. The decision was a determination that certain injuries suffered by the plaintiff, which he had alleged were attributable to a motor vehicle accident in 2011, had given rise to a whole person impairment (“WPI”) of less than 10 per cent. The first defendant, IAG Pty Ltd (trading as NRMA Insurance Ltd), was the compulsory third party (“CTP”) insurer of a vehicle which impacted that of the plaintiff, its driver having been responsible for the accident. The plaintiff also sought an order that the first defendant pay the plaintiff’s costs of proceedings. There were submitting appearances by the second and third defendants and, accordingly, I will refer to the first defendant as the defendant.

Background to the proceedings

2. The plaintiff was born in 1957, and is 63 years of age. In 1989, he suffered injuries to his sternum, scapulae and left kidney in a work-related accident and has been in receipt of a Disability Support Pension since that time. In 2006, the plaintiff was assaulted, apparently receiving one or more blows to the head. X-ray images taken at the time of his cervical spine showed no abnormalities. In early 2011, following an injury sustained whilst doing voluntary work at a greyhound racing track, he had surgery done to his right shoulder.

3. On 18 April 2011, the plaintiff suffered an injury whilst driving his vehicle at Temora, New South Wales. When he stopped in a line of traffic waiting to enter a roundabout, a vehicle impacted the rear of his vehicle (“the accident”). The following day, the plaintiff was examined by his general practitioner, Dr Kurtzer, whose clinical notes state:

“After impact [the plaintiff] was then slung forward – said his neck hurt and felt pins and needle[s] in his fingers. Pins and needles lasted ‘a couple of minutes’ … Had some chest soreness on the [left side] – blamed this on his seat belt. Today has a lot of soreness in the neck – has trouble moving the neck … Pain – his pain with pressure on C7, also marked bilaterally anterior [zygapophyseal joint], tenderness as well … Diagnosis XE1HU (Cervicalgia) or (neck pain NOS).”

4. The plaintiff consulted Dr Kurtzer on 4 August 2011, complaining of soreness in his arms. He was referred for an X-ray, which was reported as showing:

“Disc space degeneration and narrowing at C6/7 with osteophyte formation, facet joint arthropathy was also noted. There was no prevertebral soft tissue swelling.”

5. On 7 September 2011, the plaintiff complained to Dr Kurtzer of neck pain and cramping of his hands. A CT scan was carried out on 9 September 2011, with the report stating that:

“… at C6/7 there was a calcified disc protrusion indenting the theca, but not causing any significant central canal stenosis. Mild bilateral foraminal stenosis was noted bilaterally at C6/7.”

6. The plaintiff lodged a personal injury claim form dated 28 September 2011, in which his only injuries were described as:

“… pain, discomfort, limitation in movement of the neck; weakness down both arms; loss of sleeplessness; anxiety: depressed: 80% of strength in arms.”

7. On 28 October 2011, the plaintiff complained to Dr Kurtzer of neck pain radiating into his right arm, and was referred for an MRI scan, which occurred on 15 November 2011 and reported the following:

“There are disc degenerative changes again noted at C6/7 with mild canal stenosis and a degree of C7 foraminal stenosis. No other relevant disc degenerative abnormality is seen elsewhere within the cervical spine.”

8. In respect of the spinal cord as a whole, the report stated the following:

“A normal appearance to the cord is noted with no increased cord signal or evidence of cord atrophy. No focal extramedullary intradural lesion is noted. No suspicious bony or paravertebral soft tissue abnormality is noted, particularly relating to any previous trauma.”

9. By a letter dated 20 December 2011, Dr Kurtzer referred the plaintiff to Dr Ow-Yang, a neurosurgeon, stating that the plaintiff presented “with neck pain” and noting “7/09/2011 Degeneration of cervicothoracic intervertebral disc (disorder)”. By letter dated 13 February 2012, Dr Ow-Yang recommended that he undergo an operative procedure to his cervical spine, being a C5/6 and C6/7 anterior cervical discectomy and a fusion with compression. Dr Ow-Yang said:

“A CT and MRI of the cervical spine show a severe cervical canal stenosis at C6/7 secondary to a posterior disc bulge in disc osteophyte complex. At C5/6 there is also a disc bulge. At both of these levels there is a significant right sided foraminal stenosis causing right C6 and C7 nerve root compression.

…

The current working diagnosis is one of C6/7 cord compression and right C6 and C7 nerve root compression secondary to foraminal stenosis.

I have no doubt that this injury is likely to have been a result of the motor vehicle accident that he had. There may be some background of previous degenerative problem[s], however it is clear that prior to this he was asymptomatic and after the injury he has had severe problems that are significantly impacting on his life. I do believe that at least the C5/6 disc bulge is likely to be due to the accident and the irritation of both his spinal cord and his right sided C7 nerve is secondary to the accident.

To treat the problem, I have offered him a C5/6 and C6/7 anterior cervical discectomy and fusion with decompression and internal fixation.”

10. The plaintiff sought to claim on the CTP insurance of the driver of the other vehicle in the accident for the operation. On 21 February 2012, he was assessed for the defendant by Dr Huntsdale, an orthopaedic surgeon, with Dr Huntsdale subsequently issuing a report dated 27 February 2012. Dr Huntsdale had available to him the plaintiff’s personal injury claim form, his Centrelink records, Dr Kurtzer’s notes and the MRI report dated 15 November 2011. Although his report post-dated Dr Ow-Yang’s report of 13 February 2012, Dr Ow-Yang’s report was not available to him at that time.

11. Dr Huntsdale examined the plaintiff and concluded: “The diagnosis I believe is a whiplash injury with aggravation of underlying cervical degenerative change”. He thought that the plaintiff’s restrictions and treatment were “partially related” to the accident and that there was “some contribution” from an underlying disc degenerative change at C6/7, which could explain the pain the plaintiff was experiencing. Dr Huntsdale considered that approximately 50 per cent of the plaintiff’s restrictions and treatment needs were attributable to his previous injury. He expressed “reservations” that the plaintiff needed the surgery proposed by Dr Ow-Yang.

12. In a report dated 1 October 2014, Dr Kurtzer stated, “My records do not indicate until January 10, 2012, that there are concerns relating to pain in the [right] knee”. Between March 2012 and March 2013, the plaintiff underwent examinations and reviews concerning his right knee and left hip.

13. In a report dated 1 March 2012, Dr Ow-Yang stated:

“The pain relates to [the plaintiff’s] low back and radiates to his left hip. He also complains of pain radiating down the right groin region to the medial thigh, the knee, the medial calf and into the medial aspect of his ankle and foot. This is classic L4 distribution.”

14. On 2 May 2012, the plaintiff was advised by the defendant that his application for surgery, as recommended by Dr Ow-Yang, was not considered reasonable and necessary, based on Dr Ow-Yang’s report of 1 March 2012, an MRI report dated 16 March 2012 and Dr Huntsdale’s report of 27 February 2012.

15. Dr Huntsdale prepared a supplementary report on 18 May 2012, by which time he had Dr Ow-Yang’s report dated 13 February 2012. Dr Huntsdale noted that Dr Ow-Yang’s opinion appeared to be contradicted by the radiologist’s report of the MRI scan of the plaintiff’s cervical spine. Referring to Dr Ow-Yang’s report, Dr Huntsdale stated:

“In the third paragraph [Dr Ow-Yang] states that CT and MRI of the cervical spine show ‘severe cervical canal stenosis’. The report that I have in the enclosures concludes as follows:

‘There are disc degenerative changes again noted at C6/7 with mild canal stenosis and a degree of C7 foraminal stenosis. No other relevant degenerative abnormality is seen elsewhere within the cervical spine.’

I am a little uncertain as to precisely why [Dr Ow-Yang] wishes to operate on C5/6. He comments that there is a significant right sided foraminal stenosis at both C5/6 and C6/7. The report says:

‘At C5/6 there is some mild midline disc bulging but no cord contact, no canal or foraminal stenosis or facetal arthrosis.’

I do not know whether these are his personal observations which disagree with the radiologist, Dr Duncan. It might be worth questioning Dr Ow-Yang.

…

With regard to his cervical pathology there is no doubt that he has underlying degenerative change. I note in the clinical data for the MRI it says there is known calcified C6/7 disc. One presumes this is from an earlier x-ray. When I saw [the plaintiff] he denied any significant pathology and pain in the past, but it has to be noted that he has not worked since an injury which occurred in the late 80s. It also would seem that the original accident was not at a high speed.

I have grave reservations that surgery in this particular case will make a significant difference to his symptoms. Perhaps injections in the neck may be worth a trial.

At this point in time I would state that his whole person impairment for his cervical spine would be DRE 2 [equivalent to 5-8 per cent WPI] based on the fact that he has had a significant injury and has some non-verifiable radicular pain.

With regard to the lumbar spine I would suggest he would be DRE 1. He therefore would have a 5% whole person impairment.”

16. The reference to “DRE” is to “diagnostic-related estimates”, concerning the estimated level of impairment from a spinal injury. A table of such estimates appears in the Motor Accident Permanent Impairment Guidelines. Those guidelines are discussed below at [28]-[30].

17. The plaintiff was assessed for the defendant by a neurosurgeon, Dr Casikar. In his report dated 17 June 2013, Dr Casikar referred to the plaintiff’s CT scan of 9 September 2011 and the MRI of 15 November 2011, noting that they both showed degenerative changes at C5/6 and C6/7 segments. He concluded that the plaintiff’s symptoms were due to the degenerative disease of his cervical and lumbar spine and were unrelated to injuries from the accident, from which he had fully recovered. He said that the nature of the treatment proposed by Dr Ow-Yang was appropriate for a degenerative disease of the spine and was unrelated to any injury from the accident.

18. Following the dispute with the defendant concerning insurance cover, the plaintiff filed for an assessment by SIRA on 30 October 2013, alleging injuries to his cervical spine, back, right knee and left hip. He also alleged a psychological injury.

19. The dispute was referred for an independent medical assessment by medical assessors of SIRA pursuant to provisions of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”).

The MAC Act – medical assessments and reviews

20. The relevant provisions of the MAC Act in respect of medical assessments and reviews are as follows.

21. Section 58 provides:

“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):

(a)   whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b)   whether any such treatment relates to the injury caused by the motor accident,

…

(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%.

…

(2)   This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.”

22. Section 60 of the MAC Act provides that a “medical dispute” may be referred to SIRA for assessment under Pt 3.4 of the MAC Act by either party to the dispute. In accordance with s 59, such a medical assessment must be made by medical practitioners who are suitably qualified and appointed by SIRA. Under ss 61(1) and (2), a medical assessor is required to give a certificate as to the matters referred for assessment, which is conclusive evidence as to those matters in any court proceedings or assessment by a claims assessor in respect of the claim concerned. The certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence, as provided for under s 61(9).

23. A matter may be referred for further medical assessment in accordance with s 62, which provides:

“62   Referral of matter for further medical assessment

(1)   A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part:

(a)   by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or

(b)   by a court or claims assessor.

(1A)   A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment.

(1B)   Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority).

(2)   A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.”

24. Section 63 relevantly provides:

“63   Review of medical assessment by review panel

(1)   A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2)   An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

…

(3)   The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(3A)   The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4)   The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

…

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

…”

25. Section 63(6) thus picks up the obligation at s 61(9) for a review panel to set out its reasons for the findings in the certificate.

26. In determining the WPI of a person impacted by an accident, s 133 of the MAC Act provides:

“133   Method of assessing degree of impairment

(1)   The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2)   The assessment of the degree of permanent impairment is to be made in accordance with:

(a)   Motor Accidents Medical Guidelines issued for that purpose, or

(b)   if there are no such guidelines in force—the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.”

27. Section 44 relevantly provides:

“44   Medical Guidelines of Authority

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

…

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

…”

28. The guidelines made pursuant to s 44(1)(c) of the MAC Act that were to be applied by the review panel which is the subject of this application were the Motor Accident Permanent Impairment Guidelines, which were issued by SIRA and commenced on 1 June 2018 (“the Guidelines”). Section 65(1) of the MAC Act provides that the procedure for medical assessments under Pt 4 is subject to those guidelines made under s 44(1).

The Guidelines

29. Parts 1.2 and 1.5 – 1.7 of the Guidelines state:

“Introduction

…

1.2   These Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the [MAC Act] must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the [MAC Act] …

Causation of Injury

1.5   An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the [MAC Act]. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1.   The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2.   The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

This, therefore, involves a medical decision and a non-medical informed judgment.

1.7   There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be applicable in circumstances where there are multiple contributing causes.

Impairment and Disability

…

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

30. Clauses 1.17 and 1.18 of the Guidelines state:

“Evaluation of impairment

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

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

1.17.2   is an impairment as defined in clause 1.9 (above).

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

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

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

•   medico-legal reports

•   diagnostic findings

•   other relevant evidence

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

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

SIRA’s assessments and reviews

31. The independent medical assessment was made pursuant to ss 58(1)(d) and 61 of the MAC Act, that is, an assessment of whether the degree of permanent impairment consequent to the injury caused by the motor accident was greater than 10 per cent. An assessment for any psychological injuries was carried out by Assessor Inglis Synnott, who certified on 31 January 2014 that the plaintiff had an adjustment disorder with anxiety and depressed mood, giving rise to a permanent impairment which was not greater than 10 per cent. An assessment of the plaintiff’s alleged bodily injuries was conducted by Assessor David McGrath, who, according to SIRA’s list of medical assessors, was an occupational medicine specialist. A certificate was issued by Assessor McGrath on 21 March 2014, certifying that, as a result of the accident, the plaintiff suffered soft tissue injuries to his cervical spine and “back”, and a meniscal tear to his right knee, giving rise to a WPI that was less than 10 per cent, being approximately 5 per cent.

32. On 8 May 2014, the plaintiff applied to the proper officer of SIRA for a review of Assessor McGrath’s decision pursuant to s 63(1) of the MAC Act. The application was not in evidence but I assume that, in accordance with s 63(3), the proper officer was satisfied that there was reasonable cause to suspect that Assessor McGrath’s medical assessment was incorrect, because the matter was referred to a review panel comprised of Assessors Margaret Gibson, Robin Fitzsimons and Chris Oates (“the first review panel”). The assessment was carried out on 3 October 2014. On 7 October 2014, the first review panel revoked the certificate issued by Assessor McGrath and issued a new certificate stating that the only injury giving rise to a permanent impairment caused by the accident was to the cervical spine, stating: “Neck - Cervical spine soft tissue injury with possible aggravation of intervertebral disc degeneration”. However, it resulted in a WPI of less than 10 per cent, being zero per cent.

33. In their reasons, the first review panel noted repeated complaints of neck pain made by the plaintiff to Dr Kurtzer. The first medical certificate issued by Dr Kurtzer, which was dated 10 September 2011 but which was based on his clinical examination of the plaintiff on 19 August 2011, “noted neck complaints but no other injuries or problems apart from those relating to the neck”. The neck injury was the only injury identified in the personal injury claim form signed by the plaintiff on 28 September 2011. The plaintiff made further complaints about neck pain on visits to Dr Kurtzer in 2011 on 7 October, 4 November, 18 November, and 20 December. On a consultation with Dr Kurtzer on 10 January 2012, Dr Kurtzer noted: “for 2 weeks [the plaintiff] has had pain that has started in the neck”. However, the first review panel found:

“… there was a complete lack of objective medical evidence of any lower back, left hip and right knee complaints for a very long time after the subject accident, despite numerous general practitioner attendances.”

34. On 10 December 2014, the plaintiff filed a summons in this Court seeking judicial review of the first review panel’s decision. The plaintiff advanced two grounds, being that the first review panel had failed to exercise its jurisdiction in finding that the plaintiff’s back, left hip and right knee injuries were not caused by the motor vehicle accident, and that it had impermissibly delegated its function of examining him to two of its three members, thus failing to perform its statutory task. On 20 July 2015, Adamson J dismissed the summons: Bradley v Insurance Australia Ltd t-as NRMA Insurance (2015) 71 MVR 496; [2015] NSWSC 950.

35. By September 2014, the plaintiff was utilising the services of a different neurosurgeon, Dr Peter Mews, from the same rooms as Dr Ow-Yang. There are six reports by Dr Mews, dating from 24 September 2014 to 28 February 2017, all concerning the plaintiff’s treatment. No opinion by Dr Mews as to the causation of the spinal or other injuries has been tendered. In about July 2015, Dr Mews performed lumbar spine surgery on the plaintiff, involving an L3-S1 decompression and fusion.

36. On 1 April 2016, the plaintiff lodged an application for an independent assessment of a treatment dispute by the Medical Assessment Service (“MAS”), the treatment being a proposed C6/7 anterior cervical discectomy, which had been recommended by Dr Mews but disputed by the defendant as being not reasonable and necessary. The defendant filed a reply, but the material tendered by the parties does not disclose what became of this application.

37. On 28 June 2016, the plaintiff underwent cervical spine surgery, performed by Dr Mews, in the nature of a C6/7 anterior cervical decompression and fusion.

38. On 9 June 2017, the plaintiff lodged an application for a further assessment of a permanent impairment dispute by the MAS. In the application, the plaintiff relied upon his lumbar spine surgery in July 2015 and cervical spine surgery in June 2016 as evidence that there had been a significant further deterioration, which on a further review would likely result in a finding of a WPI of greater than 10 per cent. Similarly, the plaintiff’s need for lumbar spine surgery indicated that his condition had sufficiently deteriorated and was different to what had been considered by the first review panel, such as to be capable of having a material effect on the outcome of the previous assessment. The plaintiff also relied on a report by Dr Kurtzer dated 12 April 2016, which provided “some reasoning and explanation” for the absence of notation in his records of a report of a lumbar spine injury by the plaintiff prior to early 2012.

39. On 25 October 2017, a determination was made by the proper officer that she was satisfied that there was additional relevant information that was capable of having a material effect on the outcome of the previous assessment, and accordingly, she referred the application for further medical assessment pursuant to s 62(1A) of the MAC Act.

40. The application was referred to Assessor James Wong, an orthopaedic surgeon, who issued three certificates. The first was to the effect that the only injury caused by the accident, which was a whiplash injury to the neck, had resolved, and therefore the plaintiff’s WPI was less than 10 per cent, being zero per cent. The second was that the cervical spine surgery performed by Dr Mews on 28 June 2016 did not relate to the accident injuries, and the third was that the operation was “not reasonable and necessary in the circumstances”. In his reasons, Dr Wong expressed his opinion that the plaintiff had suffered “a mild whiplash injury, or an aggravation to his underlying spondylosis, which had resolved in the first days up to first few weeks after [the accident]”. His need for cervical spine surgery was due to “the significant underlying congenital narrowing of his spinal canal & due to his significant age-related spinal spondylosis”, and therefore was not causally related to the injury sustained in the accident. Assessor Wong agreed with the first review panel that the injuries to the plaintiff’s lumbar spine, left hip and right knee were not attributable to the accident and therefore the pain experienced by the plaintiff from those sources was not accident-related.

41. Assessor Wong also noted:

“When I asked [the plaintiff] why there was no record of him complaining of any neck pain in the over four months after [the accident], he said he was managing by taking pain killers himself, without needing to see his doctor then.”

42. Later in his reasons, Assessor Wong concluded that the plaintiff had not sought any further attention and treatment to his cervical spine:

“… most likely because his mild whiplash injury had resolved in a few days, or up to 2 to 3 weeks after the accident. Otherwise, he would have sought further medical attention for his neck injury by then. Most Clinicians would agree with this.”

43. On 8 May 2018, the plaintiff filed an application for a review of Assessor Wong’s assessment, alleging that, insofar as Assessor Wong had found that the plaintiff’s cervical spine injury had resolved, his assessment was incorrect and that he had provided insufficient reasons to support this finding. The essence of the plaintiff’s complaint concerned a finding by Assessor Wong that there was no objective medical evidence of the plaintiff complaining of any neck pain to Dr Kurtzer for over four months after the accident. This conclusion, it was submitted, overlooked a note taken by Dr Kurtzer the day after the accident, recited at [3] above, to the effect that there was an injury to the plaintiff’s neck as well as other evidence to the effect that the plaintiff was allowing time for the injuries to settle.

44. The proper officer approved the review application. He stated:

“When this lack of treatment is brought to the attention of [the plaintiff], he makes it clear that is because he was managing his pain himself. Although Assessor Wong does not need to accept this explanation, his reasons do need to address why he considers this explanation to be insufficient. The reasons provided by Assessor Wong do not address the explanation offered by the claimant.

I am therefore satisfied of reasonable cause to suspect a material error.”

45. The proper officer referred the application to another medical review panel, which was constituted by Assessors Mark Burns, who specialised in occupational medicine, Richard Crane, a general surgeon, and Drew Dixon, an orthopaedic surgeon. On 5 November 2018, the second review panel revoked Assessor Wong’s certificates and issued three new certificates, determining that:

1. The plaintiff’s soft tissue injury of the cervical spine gave rise to a WPI that did not exceed 10 per cent; and

2. The plaintiff’s cervical spine surgery performed on 28 June 2016 did not relate to the injuries caused by the motor vehicle accident; and

3. The plaintiff’s cervical spine surgery performed on 28 June 2016 was therefore not reasonable and necessary in the circumstances.

46. The determination and reasons of the second review panel (which hereinafter I will refer to as “the review panel”) are the subject of the plaintiff’s summons in these proceedings. The review panel considered the four alleged injuries. In relation to the plaintiff’s lumbar spine and right knee injuries, the review panel noted that they were not mentioned in the plaintiff’s personal injury claim form dated 28 September 2011 and that the first mention of them was in Dr Kurtzer’s clinical notes on 10 January 2012, almost nine months after the accident. The first investigation of the lumbar spine was not until an MRI scan on 14 February 2012, which revealed multi-level degenerative disc disease. The first investigations of the plaintiff’s right knee were not until early 2012. The review panel concluded that there was no evidence of an injury to either the plaintiff’s lumbar spine or right knee that was causally related to the motor accident.

47. In relation to the plaintiff’s left hip injury, the review panel again noted an absence of any mention of this in the plaintiff’s personal injury claim form or in the contemporaneous medical documents until 27 March 2012, some 10 months after the accident, as well as an absence of investigations of his left hip until early 2012. The review panel came to the same conclusion, that is, that the plaintiff’s left hip injury was not causally related to the motor accident.

48. The review panel concluded that the only claimed injury that was caused by the accident was to the plaintiff’s cervical spine, being a soft tissue injury, and that the degree of WPI for injuries caused by the motor vehicle accident was zero per cent.

Relevant legislative provisions and principles concerning judicial review of the review panel’s determination

Supreme Court Act 1970 (NSW), s 69: an error of law

49. The application for judicial review is made pursuant to s 69 of the Supreme Court Act, which provides:

“69   Proceedings in lieu of writs

(1)   Where formerly:

(a)   the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b)   in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c)   the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d)   shall not issue any such writ, and

(e)   shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f)   proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

…

(3)   The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings:

(a)   jurisdiction to quash the ultimate determination of the court or tribunal, and

(b)   if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4)   For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5)   Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.”

50. Accordingly, this Court may exercise its discretion to quash the decision of the review panel if the plaintiff establishes one or more relevant errors of law on the face of the record.

Jurisdictional error

51. In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], the High Court held that it is not open to a State legislature to take away a State Supreme Court’s jurisdiction to grant relief in respect of jurisdictional error. As to the distinction between a jurisdictional error and an error of law on the face of the record, in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229, the Court (Meagher, Simpson and Payne JJA) stated, at [45]:

“As has been repeatedly emphasised, the distinction is important, as a claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error ‘on the face of the record’.”

52. In Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211, Gleeson JA (Macfarlan and Leeming JJA agreeing) determined that a failure by a review panel exercising power pursuant to s 63 of the MAC Act to respond to a substantial argument can constitute a failure to accord natural justice, which is a jurisdictional error. As it happens, there are some parallels between the facts in Rodger v De Gelder with the facts in this case. The review panel in that case was required to consider whether the degree of permanent impairment of the injured person caused by a motor accident was greater than 10 per cent, with the evaluation of causation involving both a medical determination and a non-medical determination pursuant to the counterpart of cl 1.6 of the Guidelines in the relevant guidelines in force at the time. There was a substantial argument that Mr De Gelder had made a relevant and contemporaneous complaint of pain in the region of his thoracic spine, unsupported by clinical records, to which, it was alleged, the review panel had not responded. Gleeson JA stated:

“88   The contention relied upon by Mr De Gelder in oral argument, was that the Panel incorrectly described the evidentiary position and thereby impliedly overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury…

89   In [Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244] at [19] - [22], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account. The context in that case was the obligation of a claims assessor exercising power under the MAC Act, s 94. His Honour said:

[19]   Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated:

[24]   To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

[20]   A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:

[81]   However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of ‘refugee’.

[21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the [MAC] Act requires that a claims assessor ‘is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages’: s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function.

[22]   The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2001) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 at [35] (SZJSS).

90 These observations have equal relevance to the obligation of a review panel to consider the evidentiary material placed before the panel when exercising power under the MAC Act, s 63. As already mentioned, s 63(3A) expressly requires a review panel to undertake a new assessment of all the matters with which the medical assessment is concerned. Here the medical assessment matter which a review panel was dealing with is whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%: s 58(1)(d) MAC Act. It is, therefore, mandatory that the review panel address the medical assessment matter and carry out the statutory function.

91   As cl 1.8 of the Permanent Impairment Guidelines makes clear, the causation issue involves both a medical determination and a non-medical determination. Here, what is in issue is the non-medical determination by the Panel that Mr De Gelder’s thoracic spine injury was not caused by the motor accident.

92   The primary judge found in effect that there were five significant deficiencies in that determination, all revealed by comparing the Panel’s reasons with the evidence of Mr De Gelder having made complaint of the onset of thoracic pain at the time or and continuing after the motor accident. As the primary judge also found, taken together the five items relate to a matter of importance to the Panel’s determination. This is not to suggest that the Panel had an obligation to consider every piece of evidence presented. But the Panel was required to respond to a substantial argument that Mr De Gelder did make a relevant and contemporaneous complaint of pain in the region of his thoracic spine.

93   Where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). It is well accepted that with respect to the MAC Act, procedural fairness applies to a review panel exercising powers under s 63: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [8] (Allsop P). The particular content of this requirement will depend upon the facts and circumstances of the particular case: Trazivuk v Motor Accidents Authority (NSW) at [28]; Frost v Kourouche at [2] and [41].

94   A failure to accord procedural fairness is a recognised form of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [60]. It is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 at [10].

95   It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]-[103]. Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf at [41] (Gaudron J).

96   The question is whether this is what the Panel did here. As will be seen immediately below, it will not be necessary to decide whether a failure to respond to a substantial argument amounts to a failure to accord procedural fairness, or a constructive failure to exercise jurisdiction, or both.”

53. The reference in [91] to cl 1.8 is to the former guidelines, which was in the same terms as cl 1.6 of the Guidelines. A further example of jurisdictional error by a review panel failing to respond to a substantial argument is provided in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen, in which the Court said, at [52]:

“In the present case, to use language borrowed from Gaudron J in Miah, jurisdictional error would be established if the review panel misunderstood the statutory requirement governing the exercise of the assessment it was required to conduct so as to constitute a constructive failure to exercise jurisdiction. That draws attention to the statutory requirements governing the assessment. In addition, a statutory obligation to address the substance of an applicant’s case when conducting such an assessment will be readily implied and a failure to satisfy that obligation may constitute a constructive failure to exercise jurisdiction: Ali v AAI Ltd [2016] NSWCA 110 at [66] per Basten JA, Leeming and Simpson JJA agreeing. Thus a failure to respond to a substantial argument may amount to a failure to accord procedural fairness, a constructive failure to exercise jurisdiction, or both.”

A review panel’s standard of reasons

54. As noted, the review panel was obliged by ss 61(9) and 63(6) of the MAC Act to “set out the reasons” for the matters that it had certified. In Wingfoot Australia Partners Pty Ltd v Kocac (2013) 252 CLR 480; [2013] HCA 43, the High Court considered the standard of reasons that was appropriate for a determination by a medical panel in a similar statutory scheme, pursuant to s 68(2) of the Accident Compensation Act 1985 (Vic), which required the review panel to whom a medical question is referred to “give a certificate as to its opinion and a written statement of reasons for that opinion”. The High Court stated:

“47   The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

…

56 The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act. On the premise that [Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22] held that the opinion of a Medical Panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court … The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that ‘it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them’ … Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

…

65 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.” (footnotes omitted)

55. The parties accept that this standard is qualified by the circumstance delineated in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284. In that case, Basten JA (Handley & McColl JJA agreeing) said:

“121   Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another …

122   On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see [Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] (at 273–274) (Mahoney JA) and (at 281–282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”

Uniform Civil Procedure Rules 2005 (NSW)

56. Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) provides that proceedings for judicial review must be commenced within three months of the date of the decision. These proceedings were commenced within time.

The review panel’s reasons concerning the cervical spine injury

57. At the outset of its reasons, the review panel stated that it had decided to not examine the plaintiff, explaining:

“The panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because the appeal revolved around whether the initial injury to the cervical spine had resolved and whether subsequent surgery to the cervical spine was related to the initial injury and reasonable and necessary. The panel noted that there was substantial information concerning these questions which was more than adequate to come to a decision.”

58. The review panel’s consideration of the plaintiff’s cervical spine injury is contained in two sections of its reasons. The first is under the heading “Panel Deliberations”, which commences with the words: “The panel noted the following documents concerning injuries related to the motor accident”. The documents referred to were the plaintiff’s personal injury claim form dated 28 September 2011; the medical certificate of Dr Kurtzer dated 10 September 2011; and Dr Kurtzer’s clinical notes of 19 April 2011, 4 August 2011 and 7 September 2011. The review panel also specified an X-ray report dated 5 August 2011; a CT scan dated 9 September 2011; and an MRI scan dated 21 November 2011. The review panel extracted from Dr Kurtzer’s clinical note of 19 April 2011 the plaintiff’s description of what occurred on impact, which I have recited at [3] of this judgment. Extracts from the two subsequent clinical notes were to the effect that the plaintiff continued to experience neck pain. The review panel extracts from the reports of the X-ray and MRI noted degenerative changes. The extract from the MRI report reproduced the part of Dr Duncan’s report referred to in Dr Huntsdale’s report dated 18 May 2012, which he had considered to be at odds with Dr Ow-Yang’s opinion, and continued with the part reproduced at [7] of this judgment.

59. The review panel commented that the X-ray report was consistent with pre-existing degenerative change to the plaintiff’s cervical spine. The CT scan revealed a calcified disc at C6/7, which the review panel said: “was consistent with a pre-existing disc condition/injury as such calcification could not have developed in the 5 months since the motor accident”. The reasons then state:

“The panel concluded that there was sufficient evidence of an injury to the cervical spine causally related to the motor accident on 18 April 2011.

The panel considered that the injury to the cervical spine would be classified as Whiplash Associated Disorder Grade 2. The panel noted that [the plaintiff] had a previous cervical spine injury in 2006 with normal x-rays at that time. The panel concluded that the 2006 injury was the probable cause of the C6/7 disc degeneration and that this had developed over a number of years.

The panel also considered that the 2011 accident was a minor rear end collision and would not have accelerated/exacerbated the pre-existing degenerative disc disease at C6/7.

The panel noted that the referral of [the plaintiff] in December 2011 was for ‘degeneration of cerviocothoracic intervertebral disc’, which the panel believed pre-existed the minor motor accident. Whilst the minor motor accident may have caused a soft tissue injury it did not cause the degenerative disc disease at C6/7 nor did it cause a more than negligible contribution to the C6/7 degenerative disc disease (paragraph 1.7 of Motor Accidents Permanent Impairment Guidelines - 1 June 2018).

The panel noted the examination findings of the previous Review Panel on 2 October 2014. Examination of the cervical spine at that time revealed no evidence of non-uniform loss of range of motion, muscle spasm or guarding or non-verifiable radicular complaint. The assessment of the cervical spine was DRE I - 0% WPI (more than 3 years after the motor accident). At that time there was no evidence of radiculopathy or spine cord compression.

The panel has decided that the current assessment of the cervical spine is DRE IV - 25% WPI following [the plaintiff’s] spinal fusion. The panel believes that the need for the spinal fusion was due to natural deterioration of his pre-existing degenerative disc disease at C6/7 and is NOT associated with the minor soft tissue injury from the current motor accident. This natural deterioration occurred both before and after the current accident and as such the correct assessment of the impairment of the cervical spine causally related to the subject motor accident is 0% WPI.”

60. The second section appears under the heading “Treatment - causation”. It commences by stating that, in respect of the dispute as to whether the cervical spine surgery performed by Dr Mews on 28 June 2016 was or is related to the injuries caused by the accident, the review panel considered six observations. The first two were as follows:

“The panel noted the nature of the accident being a rear end collision whilst stationary at a roundabout. [The plaintiff’s] vehicle was drivable and did not require towing. The police and ambulance did not attend the accident scene.

The panel noted his only initial injury was a whiplash injury to the cervical spine, which was initially treated conservatively.”

61. The next three observations were a reproduction of the review panel’s earlier observations concerning the X-ray, CT and MRI reports. The sixth observation was:

“The panel noted that [the plaintiff] had a previous cervical spine injury in 2006 with reports of normal x-rays at that time. The panel concluded that the 2006 injury was the probable cause of the C6/7 disc degeneration and that this had developed over a number of years.”

62. The reasons then continued:

“The panel concluded that [the plaintiff] had pre-existing moderately severe cervical spondylosis which was probably associated with his neck injury in 2006. Whilst reportedly asymptomatic the degenerative changes were progressing during this period.

The panel believed that considering the nature of the accident the injury to the cervical spine was a soft tissue injury (whiplash associated disorder Grade 2).

The panel noted that Dr Ow-Yang, treating Neurosurgeon on 20 December 2011 stated that [the plaintiff’s] problem was ‘degeneration of cervicothoracic intervertebral disc’ but made no mention of the motor accident. [1]

The panel noted that subsequently Dr Ow-Yang, the treating neurosurgeon, in his report dated 13 February 2012 made a working diagnosis of C6/7 cord compression and stated that the MRI scan of the cervical spine had shown severe cervical spine canal stenosis at C6/7 due to a posterior disc bulge and disc osteophyte complex. (which was not supported by the MRI scan report which listed only mild canal stenosis with no evidence of cord compression). The doctor then recommended a CS/6 and C6/7 anterior cervical discectomy and fusion which was not approved by the insurer.

The panel noted the report of Dr Huntsdale who on 27 February 2012 made a diagnosis of whiplash injury with an aggravation of underlying degenerative disc disease. He also stated ‘I have my reservations that he requires surgery’.

The panel noted the IME’s reports of Dr Casikar, Neurosurgeon where he made a diagnosis of ‘whiplash injury in the subject motor accident’. He then stated that the impact of the motor accident had completely ceased and ‘I believe that he has recovered completely from the effects of this accident’.

When commenting on the surgical recommendation made by Dr Ow-Yang he stated ‘The treatment suggested by Dr Ow-Yang is a frequently performed procedure to address issues with a degenerative disease of the cervical spine. This surgery is not necessary as a consequence of the motor vehicle accident’.

The panel again noted the examination findings of the previous Review Panel on 2 October 2014. Examination of the cervical spine at that time revealed no evidence of non-uniform loss of range of motion, muscle spasm or guarding or non-verifiable radicular complaint. The assessment of the cervical spine was DRE I - 0% WPI (more than 3 years after the motor accident). At that time there was no evidence of radiculopathy or spinal cord compression. On these examination findings no surgery would have been appropriate.

The panel noted the reports of Dr Mews, second treating Neurosurgeon with reports from 24 September 2014 to 28 February 2017. Dr Mews diagnosed a degenerative cervical spine with developing symptoms of cervical myelopathy. This was 3.5 years after the minor motor accident.

Taking into account the large amount of evidence available the panel concluded that the need for cervical spine surgery on 28^th June 2016 was directly related to [the plaintiff’s] initial neck injury in 2006 and the natural deterioration in his cervical disc degenerative disease over 10 years. The panel did not believe that the minor soft tissue injury in the subject motor accident was a more than negligible cause of his degenerative disc disease.

The panel concluded that the cervical spine surgery performed by Dr Mews on 28th June [2016] was NOT related to the injuries caused by the accident on 18 April 2011.”

1. The attribution of the authorship of this letter to Dr Ow-Yang is an error. It was in fact a letter by Dr Kurtzer dated 20 December 2011, which was addressed to Dr Ow-Yang. It is apparent from a correct reference to the authorship of the letter, at page 5 of the reasons, that it was a typographical error, and that the review panel was cognisant of the actual author.

The plaintiff’s application

63. The plaintiff seeks judicial review of the review panel’s decision and its statement of reasons for its decision, contending in its summons that the decision contains both jurisdictional errors and errors on the face of the record, all of which relate to the review panel’s findings as to the causation of the plaintiff’s cervical spine injury. The plaintiff submitted that there were four such errors, as follows:

“(a)   The Third Defendant erred in the causation finding as regards the Plaintiff’s cervical spine injury. Legally, and factually, the third defendant did not consider, or apply, the medical determination and the non-medical determination in considering and making the causation finding, and did not consider, or apply, the correct legal test. Legally, and factually, the third defendant misapplied, or misunderstood, the correct operation of a material contribution causation case, and misapplied, or misunderstood, what is legally, and factually, required before a finding of negligible causal impact can be made.

(b)   The third defendant erred in the causation finding as regards the Plaintiff’s pre-existing cervical spine injury. Legally, and factually, it was unreasonable to find, and a finding without probative evidence, that the motor accident did not materially contribute to the cervical spine injury that lead to surgery at the cervical spine, and it was unreasonable, and a finding without probative evidence, to find that the incident of 2006 causally accounted for the post-motor accident condition that required surgical treatment.

(c)   The third defendant failed to apply correctly, or at all, the applying guidelines as to apportionment for the pre-existing condition that resulted from the 2006 incident. Had that task been done the Plaintiff’s materially asymptomatic pre-existing condition would have meant that there was no apportionment to be made. Further, had that task been done the error in the causation test applied would have been identified.

(d)   The third defendant failed to engage with the Plaintiff’s articulated case that the motor accident had caused cervical spine injury, including causation by way of a material contribution to the making symptomatic of an asymptomatic condition, in a setting where the dispute between the parties focussed on the question of whether the Plaintiff should be believed that he suffered cervical symptoms after the motor accident, and in a setting where the approach adopted, and findings made, by the third defendant did not form part of the articulated case of the first defendant and where the third defendant derived, and arrived, at its causation conclusion without that causation case forming a real and practical part of the medical dispute between the parties.”

The defendant’s response

64. In its response to the summons, the defendant opposed the relief sought by plaintiff on the basis that it constituted “an impermissible attempt to have the court examine for itself the real merits of those matters” and would subject the review panel’s reasoning to detailed examination and analysis. It submitted that “legality must be the issue and not the merits of the particular application or proceeding below”. The defendant submitted that the decision made was open to the review panel, there is no vitiating error of law on the face of the record apparent in the decision and that there is no jurisdictional error or constructive failure to exercise jurisdiction. It submitted that sufficient and lawful reasons were provided for the medical assessment.

The parties’ submissions

Plaintiff’s submissions

65. In written submissions, the plaintiff contended that his case as to his cervical spine injury and its causation was that, if it pre-existed the accident, it was asymptomatic until the accident occurred, becoming symptomatic as a result of the accident and progressively more severe, culminating in the plaintiff accepting medical advice for operative treatment. The plaintiff alleged four errors in the review panel’s reasons.

66. Firstly, that the review panel had not set out, or dealt with, the plaintiff’s case, which was a procedural fairness error of the type discussed in Rodger v De Gelder at [84]-[87] and [88]-[96]. Secondly, that the review panel failed to set out its path of reasons for not accepting the plaintiff’s case, as it was required to do: Campbelltown City Council v Vegan at [121] and [122]. Thirdly, that it is not apparent what legal test as to causation was applied by the review panel, in particular, whether the required medical and non-medical determinations were correctly applied, as set out in cls 1.6 and 1.7 of the Guidelines (the plaintiff mistakenly referred to cls 1.8 and 1.9 in the preceding version of the guidelines, however, they are in the same terms as cls 1.6 and 1.7). If they had been, the plaintiff contended, the medical determination should have been to the effect that the accident materially contributed to the plaintiff’s injury by transforming it from an asymptomatic to a symptomatic injury. Had the review panel considered it separately, the non-medical determination focused on whether or not the injury was sustained would have obliged it to consider the relevant documentary material and the plaintiff’s version of events and case on causation. Fourthly, that the review panel formed a view as to the degree of force and nature of the collision in respect of the accident without regard to the plaintiff’s version of events, causing it to fall into error; for example, the review panel placed weight on the fact that the plaintiff was able to drive his vehicle after the accident and that the police and ambulance service did not attend, as indicative of the level of seriousness of the accident.

67. The plaintiff submitted that the review panel’s decision to rely on documentation and not undertake a clinical examination deprived it of the opportunity to hear the plaintiff’s version of events. Had the review panel done so, it would have become apparent that it needed to consider his version of events and case on causation. The plaintiff submitted that the his WPI in respect of his cervical spine was 25 per cent, which then should have been apportioned in respect of the pre-existing condition pursuant to the Guidelines.

68. In oral submissions, the plaintiff said that although he did not accept that his claim in respect of his lumbar spine, hip or knee was appropriately determined, his focus was on the manner in which the review panel dealt with the cervical spine injury, because it was “a more demonstrable error”. The plaintiff submitted that the terms in which the review panel explained its decision to not examine the plaintiff, recited at [57] above, evidenced an assumption on its part that it was alleged by the defendant that the injury caused by the accident resolved, and then there was a post-accident event that required surgical intervention on the plaintiff’s cervical spine.

69. The plaintiff referred to various documents that were before the review panel which in combination, it was submitted, would have been evident to the review panel as comprising the plaintiff’s case for review. I note that the plaintiff did not tender in the hearing a copy of the plaintiff’s application made on 8 May 2018 for a review of the certificate issued by Assessor Wong, which had prompted the proper officer to refer the matter to the review panel. Senior Counsel for the defendant, without objection, submitted that the material that was tendered in this Court included all of the material that was before the review panel. However, the written submissions made by the plaintiff in support of the application are not included in the material tendered into evidence in this Court, nor were any submissions, if any, made by either party to the review panel.

70. The first was a statement by the plaintiff’s wife, dated 24 September 2014, in which she said that when the plaintiff arrived home immediately after the accident, he complained about his “neck, back and knee”. She continued:

“5   … [The plaintiff] walked differently and he was otherwise limited in what he could do. From my observations of him, he always seemed to be in a lot of pain and was really stiff in his back and neck. He was having problems with carrying things, he was dropping things, and he was unable to open jars … He slowed down after the car accident.

6   He couldn’t do much around the house, and I had to help him put his shoes on and help him in and out of the shower (which is over the bath).

…

8   [The plaintiff] had an accident many years ago, however, that was all okay, and [he] was not getting any treatment and there was never any talk about an operation.

9   Up to the time of the car accident column was very active and was working extensively with the greyhounds, as well as doing a lot of work at home and actively pursuing pigeon racing. He has slowed down greatly since it is not able to do much at all now.”

71. The second item comprised two photocopies of photographs taken by the plaintiff of the damage to his vehicle consequent on the accident, that were attached to a statement by him dated 12 December 2013. Senior Counsel for the plaintiff described the damage that was apparent from the images as “a not-insignificant impact around [the] taillight area in the vehicle” and submitted that this was contrary to the conclusion of the review panel that the accident was a “minor rear-end collision [that] would not have accelerated/exacerbated the pre-existing degenerative disc disease at C6/7”. It was further submitted that:

“There was really no evidence in this case that the level of impact simply could not have accounted for the injury, and if that’s how the panel is to be understood then that in itself seems to ‑ theoretically they could have reached that finding but you couldn’t reach that finding without engaging with and reconciling what the plaintiff’s account of what happened in the accident and after the accident.”

72. The next item was an undated, unsigned statement by the plaintiff which was annexed to a letter from his solicitors, dated 2 October 2014, in which it is described as being dated 24 September 2014. The plaintiff stated that as a result of the accident, he had ongoing problems in relation to his neck, back, left hip and right knee and that he had complained of each of those injuries to Dr Kurtzer when he saw him the following day, which was the first time after the accident that he could get an appointment. He stated:

“7   … At the time of impact my left foot was on the clutch in my right foot was on the brake. In the course of the collision, my body was slung forward and my right knee hit the dash.

8   I specifically recall that when I went to Dr Kurtzer and made the complaints he said to me words to the effect, ‘You have a lot of bruising and will need some time for that to settle to see how it plays out. In the meantime we will concentrate on the neck. You ought give it some time for the bruising and pain to settle and then come back and see me’.

9   Accordingly, I left it for a while and was taking pain relief medication. My problems continued and as such I went back to Dr Kurtzer. Again when I went back I told him about the neck, back, shoulders, left hip and right knee. I was not sure what he wrote down in relation to the problems. I agree that my major concern was the neck and also the problems with my hands. Dr Kurtzer seemed to be concerned with my neck.

10   In reference to the personal injury claim form, I have read that and say it is not in my handwriting. I believe it was completed by my then solicitors and sent to me for signing. I had not previously made any claims for motor accident personal injury and had no experience in completing such forms. I do not recall any person specifically taking me through that form or asking me about question 25. In the event that they did ask me, I would have certainly advised them of the other injuries I was suffering (as I had to Dr Kurtzer earlier).

11   I have now had an opportunity of reading Dr Kurtzer’s clinical notes, and I see that he has not written down the complaints I made to him. Notwithstanding this, I say that I did make complaint to Dr Kurtzer in relation to the back, left hip and right knee when I first went to see him and following. I believe that he did send me for an x-ray of the back and neck in about September 2011.

12   I say that I do not go to the doctors regularly and I only go when I need to. Prior to the car accident I probably went about two or three times a year. I was not having any problems in relation to the neck, back, right knee or left hip prior to the car accident. I was not having any treatment for these nor was there ever any discussion about me having surgery to my knee, back or neck.

13   I have not had any other accidents or injuries since the car accident.”

73. The plaintiff noted that the contents of this statement, which is the essence of the plaintiff’s case, are not mentioned in the review panel’s reasons. The reference to “question 25” is to the following question asked in the personal injury claim form: “What are your injuries from the accident? (List all injuries and affected areas of the body, e.g. fracture to left leg and neck strain)”. The handwritten answer that appears on the form is as follows: “Injury to neck. (crushed vertebrae in neck)”.

74. Senior Counsel for the plaintiff then took the Court to various documents that he said would have been before the review panel, which set out the plaintiff’s case as to causation. These were, firstly, a letter from the plaintiff’s solicitors to SIRA dated 2 October 2014 that attached the plaintiff’s statement and that of his wife. The letter was apparently a response to a request from the first review panel for further documentation and submissions, made in light of the absence of clinical notes recording any early complaint by the plaintiff of all of his alleged injuries. The attached documentation also included a letter from Dr Kurtzer dated 1 October 2014, in which he stated that he had reviewed his medical records and concluded that they did not indicate any concerns by the plaintiff relating to pain in his right knee until 10 January 2012. He added, without explanation, “[the plaintiff’s] recollection of events [is] to be accepted”, and continued:

“ … I have maintained a contemporaneous record of [the plaintiff’s] consultations and have exercised diligence in recording his symptoms and complaints.

I am unable to offer any explanations as to the omission of complaints by [the plaintiff] in relation to the initial medical certificate or subsequent encounters up to 10 January 2012.”

75. The submissions in the letter are to the effect that the statements, Dr Kurtzer’s letter and other attached documents, overcome the difficulty in the plaintiff’s case of the absence of contemporaneous clinical notes recording his claimed injuries.

76. The second was also a letter from the plaintiff’s solicitors to SIRA, dated 25 August 2017. It was apparently a response to an invitation from the proper officer to make submissions in support of the plaintiff’s application on 9 June 2017 for a further assessment, following the two operations performed by Dr Mews. The submissions were to the effect that the need for such surgery evidenced a further deterioration of the plaintiff’s cervical and lumbar spine as a result of the accident. In addition, Dr Kurtzer had provided further reports as to the absence of clinical notes and his opinion that the deterioration was consequent to injuries caused by the accident.

77. The next document relied upon was a submission made by the plaintiff’s solicitors to SIRA in 2014 in support of his application for a review of Assessor McGrath’s certificate. Other material relied upon in a similar vein was a report by Dr Ow-Yang dated 13 February 2012 and the two reports by Dr Huntsdale, dated 27 February 2012 and 18 May 2012, all of which I have referred to earlier in this judgment. Dr Ow-Yang’s opinion, as expressed in the letter and relevantly recited at [9] above, was described as the plaintiff’s “operating thesis” as to the nature of the non-soft tissue injury occasioned to the plaintiff by the accident.

75. The effect of this material considered as a whole, it is submitted, was that it constituted an articulated case by the plaintiff as to the primary causation of the injuries, in particular, the injury to the cervical spine, being the accident, at least insofar as any prior degenerative condition was no longer asymptomatic. It was submitted that the failure of the review panel to address this articulated case fell short of what is required, pursuant to Rodger v De Gelder at [88]-[96]. It was open to the review panel to reject the plaintiff’s case, provided that it expressly considered it and gave reasons for doing so. Neither of these steps was apparent from the review panel’s reasons.

76. The failure by the review panel to articulate its reasoning process in arriving at its conclusion, the plaintiff submitted, means that it was not apparent that it conformed to the process required by cls 1.5, 1.6 and 1.7 of the Guidelines in determining causation, in particular, making “a medical decision and a non-medical informed judgment”: cl 1.6. It was submitted that the review panel, by acknowledging a pre-accident asymptomatic injury and ascribing a “negligible” contribution of the accident to it as a reason for rejecting causation, had blurred the two procedures. Material contribution, as required to be determined by cl 1.7 of the Guidelines, “does not require any particular percentage”.

77. Accordingly, it was submitted, it is not known whether the review panel rejected the plaintiff’s version because it was “not medically plausible” or whether there was some other reason.

The defendant’s submissions

81. The defendant’s written submissions address each of the four points in the plaintiff’s written submissions. In response to the first point, the defendant submitted that the review panel had acknowledged that it had read the material before it. There was no duty on the review panel to specifically refer to, or “engage” with, any particular evidence that was before it. An exception to that rule is that jurisdictional error may be established where a party has advanced “a substantial and clearly articulated argument relying on established facts” and the decision-maker fails to respond to that argument: see Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244] at [19]-[20]; Rodger v De Gelder at [89]-[96]. The defendant submitted that, even if there is an obligation to respond to a substantial and clearly articulated argument, it was not incumbent upon the review panel to recite the plaintiff’s argument, only to respond to it.

82. In relation to the cervical spine injury, the review panel expressly considered the relevant documents and medical reports and considered whether a causal relationship with the accident was established, concluding that the disc degeneration would have arisen from the 2006 assault injury and the minor nature of the accident would not have accelerated or exacerbated the pre-existing injury. It is apparent from the review panel’s reasons that it considered and engaged with the plaintiff’s position regarding his claim of a causal relationship of the cervical spine injuries to the accident. The material reviewed by the review panel provided a reasonable basis for its conclusion.

83. In relation to the plaintiff’s second point, the defendant submitted that there was no requirement for the review panel to expressly state why a particular submission of the plaintiff was not accepted, if the path of reasoning sufficiently demonstrated the route taken in coming to its findings and decision. The review panel’s reasons were sufficient to demonstrate its path to its conclusions regarding the cervical spine injury.

84. In relation to the plaintiff’s third point, the defendant submitted that it is apparent from a reading of cl 1.7 of the Guidelines as a whole that it is open to a review panel to find that there was an injury, but then to not find that it was caused or materially contributed to by the motor accident. Accordingly, there is no error or inconsistency in the findings of causation by the review panel.

85. In relation to the plaintiff’s fourth point, the defendant submitted that there is no requirement for a review panel to examine a claimant if it is satisfied that there is sufficient information on the presented facts, citing Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 per Basten JA at [14]-[15], where his Honour stated:

“14   … Relevantly, cl 16.21 provides:

Review Panel assessment

16.21   The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1   consider afresh all aspects of the assessment under review;

16.21.2   determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3   determine whether additional information is required in order to make a decision;

16.21.4   determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5   if revoked, determine what new certificates are to be issued;

...

15 The obligation imposed under cl 16.21.1 to ‘consider afresh all aspects of the assessment under review’ is consistent with the obligation imposed by s63(3A). However, the obligation under cl16.21.2 is not to examine the claimant, but to determine whether ‘re-examination’ is required. The assumption underlying this provision is that the initial assessor will have examined the claimant. As with cl 16.21.3 in relation to ‘additional information’, there is an evaluative judgment to be made by the panel in regard to each matter. In substance, the issue in the present case is whether there are constraints on that judgment with respect to carrying out an examination of the claimant.”

86. In its reasons, the review panel indicated that it had considered whether to examine the plaintiff and its decision that it was unnecessary to do so, was a reasonable view in light of the information before it.

87. In oral submissions, the defendant underscored that the hearing of the plaintiff’s application was not a re-hearing on the merits, but rather an exercise of the Court’s supervisory jurisdiction. In relation to the exception to the rule that the review panel is not required to consider and respond to each piece of the evidence presented to it, set out in the defendant’s written submissions, the defendant submitted that the plaintiff had not advanced “a clearly articulated argument relying on established facts”; rather, the plaintiff’s case before the review panel was “spread out” over 50 pages of the approximately 500 pages of material that had accumulated from the various assessments and reviews and that was before the review panel.

88. In any event, it is apparent from the review panel’s reasons that it considered and responded to the plaintiff’s case; the review panel accepted that the pre-existing degenerative changes were asymptomatic, but that the accident caused only a soft tissue injury to the plaintiff’s cervical spine, thus implicitly rejecting the injury diagnosed by Dr Ow-Yang, and that it was the worsening pre-existing degenerative changes that warranted the surgical intervention.

Consideration

Ground 1

89. The plaintiff’s first ground alleges an error of law on the face of the record, being a failure by the review panel to consider or apply the correct legal test as to the causation of the plaintiff’s cervical spine injury, in particular, as to whether there was a material contribution or a negligible causal impact of the accident on the injury. As developed in submissions, the plaintiff contends that it was not apparent whether the required medical and non-medical tests were applied, as set out in cls 1.5, 1.6 and 1.7 of the Guidelines.

90. I accept that a failure to comply with cls 1.5, 1.6 and 1.7 of the Guidelines is a judicially reviewable error, as was found to be the case by the Court in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen at [57], referring to the counterparts of cls 1.5, 1.6 and 1.7 in an earlier version of the Guidelines which were in identical terms.

91. The Guidelines obliged the review panel, at cl 1.6, in the context of the allegation in this case, to decide whether:

“… a physical … factor … could have caused or contributed to [a] worsening of the impairment, which is a medical determination … [and whether] the alleged factor did cause or contribute to [a] worsening of the impairment, which is a non-medical determination …”

92. In so deciding, if the issue is contribution rather than outright causation, it must be “material” and “more than negligible”: cl 1.7.

93. The review panel’s reasons concerning the cervical spine injury are not ideally drafted and are not structured in the same manner as the questions posed by cl 1.6 of the Guidelines. In my opinion, however, a reading of them establishes that each of the questions were implicitly answered by the review panel and that it correctly applied the Guidelines as to causation.

94. The plaintiff contends that the “impairment” resulted from the injury to the cervical spine that required surgery in the form of a C6/7 anterior cervical decompression and fusion in June 2016. The review panel noted the opinion of Dr Casikar that this was a “frequently performed procedure to address issues with a degenerative disease of the cervical spine” and that the reports of the X-ray, CT scan and MRI imaging that were carried out in August, September and November 2011 respectively, found that the plaintiff had degeneration of the cervical spine. The CT scan that was taken on 9 September 2011 reported a calcified disc protrusion at C6/7 that, in the opinion of the review panel, “could not have developed in the 5 months since the motor accident”. Logically, the material that established that the degenerative process had commenced prior to the accident, excluded it as a possible exclusive cause, leaving the question of whether the accident could have materially contributed to the degenerative process, that is, to a more than negligible degree.

95. The review panel found that the plaintiff suffered a whiplash injury to his cervical spine as a consequence of the accident. That is expressed in the reasons for the first time after its notation of the plaintiff’s account of the accident to Dr Kurtzer the following day; of him being slung forward, his neck hurting, the sensation of pins and needles in his fingers which lasted “a couple of minutes”, and the next day still experiencing “a lot of soreness in the neck” and difficulty moving it, as well as pain with pressure on C7 and tenderness on the zygapophyseal joint.

96. As to whether the accident could also have contributed to the relevant injury, that is, to the non-soft tissue injury to the plaintiff’s cervical spine that ultimately required surgery, to the requisite degree, the review panel concluded that the accident did not cause “a more than negligible contribution to the C6/7 degenerative disc disease”. Implicit in this statement is a medical determination that the accident could have contributed to the relevant injury, but a further determination that it did not in fact contribute to it to the requisite degree. In making this finding, the review panel cited “paragraph 1.7 of [the] Motor Accident Permanent Impairment Guidelines – 1 June 2018”, thereby confirming it was mindful of the degree of contribution that was required by the Guidelines in order for the accident to materially contribute to the injury.

97. This determination followed a finding in the reasons to the apparent degree of force of the impact involved in the accident, describing it as “a minor rear end collision [that] would not have accelerated [or] exacerbated the pre-existing degenerative disc disease at C6/7”. It is apparent, therefore, that the review panel made a non-medical determination, as it was required to do in accordance with cl 1.6, as to whether the accident “did … contribute to worsening of the impairment”, identifying the minor nature of the accident as a relevant consideration.

98. The plaintiff’s solicitors, in their letter to SIRA dated 2 October 2014, had referred to the issue of whether the apparent circumstances of the accident were capable of causing the injuries alleged, submitting that: “The nature of forces included in the motor vehicle accident are consistent with the allegations of injuries as alleged by the claimant”. In this hearing, the Court was invited to consider the two images of the plaintiff’s vehicle following the accident and to conclude that the damage was “not insignificant”. I am of the opinion that the damage to the plaintiff’s vehicle caused by the accident, to the extent that it is apparent from the two images, was very minor indeed. It appears to be confined to an area of the rear left (the nearside) corner of the vehicle, impacting the bottom corner of the tail-light assembly so as to smash the bottom of three lens, and dent the body work immediately below it. In his first report dated 27 February 2012, Dr Huntsdale wrote: “I note in the instructions that the information provided by your insured driver suggests that the speed of impact was approximately 5km an hour”. In my opinion, it was appropriate for the review panel to have regard to the material concerning the apparent force of the impact of the two vehicles as a factor relevant to its non-medical determination of whether it could account for the injury that was the subject of the surgery. However, in my opinion, the material as to the defendant’s account of the speed of the other vehicle and the images of the damage incurred are of greater probative value than the fact that his vehicle was driveable and that police and ambulance did not attend. There was nevertheless sufficient credible evidence before the panel to enable the finding they made of the minor nature of the collision.

99. The review panel referred to the content of Dr Ow-Yang’s report dated 13 February 2012, noting, however, that aspects of his opinion were “not supported” by the MRI scan of 15 November 2011. It also noted Dr Huntsdale’s doubts as to Dr Ow-Yang’s opinion that surgery was appropriate, as well as acknowledging his opinion that the whiplash injury aggravated the underlying degenerative disc disease. The reasons also make reference to Dr Casikar’s opinion that the accident was not a causative factor at all and that the plaintiff had recovered completely from the effects of the accident, which was contrary to the opinions of Dr Ow-Yang and Dr Huntsdale.

100. Accordingly, I am satisfied that there is no error of law on the face of the record associated with a failure by the review panel to consider or apply the correct legal test as to the causation of the plaintiff’s cervical spine injury, in particular, as to whether there was a material contribution or a negligible causal impact by the accident on the injury.

Ground 2

101. The plaintiff’s second ground challenges two of the review panel’s findings as errors of law on the face of the record, on the basis that they are unreasonable and without probative evidence. These are the review panel’s determination that the accident did not materially contribute to the injury that led to surgery, and that the cause of the injury requiring surgery was the 2006 incident.

102. If it were established that there was no evidence to support the findings, or that the decision was irrational or illogical and not based on findings or inferences of fact supported by logical grounds, then that would be an error of law. However, that is not so if a particular inference is reasonably open, even if reached as a result of illogical reasons: see Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [278].

103. In relation to the first of these challenged findings, as I have already noted, the review panel’s determination that the accident had not materially contributed to the injury was stated in the context of references to various documents, which included the X-ray, CT scan and MRI reports in 2011 that established the pre-accident existence of the degenerative condition; the material concerning the apparent degree of force involved in the accident; the plaintiff’s history of the accident that was recorded in the clinical notes of his general practitioner the following day; and a review of the relevant reports of his two neurosurgeons as well as the orthopaedic surgeon and neurosurgeon retained by the defendant. The review panel found that the plaintiff’s cervical spine continued to degenerate, to a point that surgery became appropriate. In my view, there was material which the review panel expressly identified in its reasons that provided an evidentiary basis for their decision that the accident did not materially contribute to the plaintiff’s need for cervical spine surgery.

104. In relation to the second challenged finding, in my opinion, the review panel’s finding that the genesis of the cervical spine degeneration was the assault in 2006 was speculative and made without a sufficient evidentiary foundation. The only possible relevance of it was that it was the only identified pre-accident incident that, inferentially, involved an application of force to the plaintiff’s head, in a timeframe that was consistent with the degenerative changes that were observed in the medical imaging undertaken between August and November 2011. However, this finding was irrelevant to the task before the review panel and does not detract from the reliability of its relevant decisions. It was necessary for the panel to determine whether the degenerative changes to the cervical spine pre-dated the accident; if so, it was irrelevant for it to go on to determine when they commenced or how they came about. Accordingly, although I accept that this finding was without an evidentiary foundation, it does not constitute an error of law on the face of the record because it was irrelevant to the review panel’s decisions.

Ground 3

105. The plaintiff’s third ground is that the review panel had “failed to apply correctly, or at all, the applying guidelines as to apportionment for the pre-existing condition that resulted from the 2006 incident”, which is an apparent reference to the procedure required by cls 1.32 and 1.114 of the Guidelines. Clause 1.114 obliged the review panel to consider:

“… whether any pre-existing spinal condition or surgery is related to the motor accident, is symptomatic and whether this would result in any or total apportionment.”

106. The review panel found there was a pre-existing spinal condition which, although not symptomatic, was related to the injury. Clause 1.32 provided guidance on how this was to be done, depending on the reliability of clinical information on the pre-existing condition, which was by subtracting the estimate of the pre-existing impairment from the present impairment. In its reasons, the review panel assessed the then-present impairment, that is, following the surgery, at “DRE IV – 25% WPI” and concluded:

“This natural deterioration occurred both before and after the current accident and as such the correct assessment of the impairment of the cervical spine causally related to the subject motor accident is 0% WPI.”

107. The review panel’s reasons do not disclose any error in how it applied the Guidelines as to apportionment for the pre-existing condition. For reasons I have already expressed, I am of the opinion that the reasons for the review panel’s determination that the accident accounted for a negligible contribution to the injury do not disclose a failure by the review panel to comply with the Guidelines.

108. The plaintiff’s third ground continues:

“… Had that task been done the Plaintiff’s materially asymptomatic pre-existing condition would have meant that there was no apportionment to be made. Further, had that task been done the error in the causation test applied would have been identified.”

109. There could only have been no apportionment if, in the opinion of the review panel, the spinal injury requiring surgery was wholly attributable to the accident, and its interpretation of the CT scan taken on 9 September 2011 alone eliminated that as a reasonable possibility. The experiencing of the symptoms was not the injury. The relevance of the plaintiff’s degenerative condition being asymptomatic before the accident was that it was evidence that the spinal injury that ultimately required surgery had been exacerbated by the accident.

Ground 4

110. The fourth ground is that the review panel “failed to engage with the Plaintiff’s articulated case”, which, as developed in submissions, was said to be a jurisdictional error of the type identified in Rodger v De Gelder, namely, a failure by the review panel to respond to a substantial argument that was advanced by the plaintiff. The fact that the plaintiff had to resort to various documents located in the plethora of material that was before the review panel and this Court in order to reconstruct that argument was indicative that it was not, in the terms of Dranichnikov v Minister for Immigration and Multicultural Affairs 77 ALJR 1088; [2003] HCA 26, as cited in Rodger v De Gelder at [89], a “clearly articulated argument”, although I consider that, in its essence, the plaintiff’s argument in terms of the cervical spine injury was quite simple and straightforward.

111. The most significant of the documents articulating the plaintiff’s case identified by his Senior Counsel was the plaintiff’s statement, relevantly recited at [72] above. The primary purpose of the statement was to explain inconsistencies in his case with Dr Kurtzer’s notes. Dr Kurtzer’s notes did not record a complaint of neck pain between the time of the first post-accident consultation, which was the day after the accident, and 7 September 2011, nearly five months later, although the plaintiff had consulted Dr Kurtzer in the interim. In addition, there was no reference to the plaintiff’s other injuries until early the following year.

112. As to the relevant parts concerning the cervical spine injury, the plaintiff gave a one-sentence description in his statement of his bodily movements during the accident, in which he said he was “slung forward”. The plaintiff explained that Dr Kurtzer, during his initial visit to him, advised the plaintiff to let his injuries settle and then return to see him. The plaintiff took pain relief medication but the problems continued, so he returned to see Dr Kurtzer and told him about his continuing symptoms, including the neck pain. The plaintiff did not say when that was, although he recalled being sent for an X-ray of his back and neck in about September 2011. The plaintiff had no pre-accident “problems” or treatment in relation to his neck and had no accidents or injuries since the accident. The statement by the plaintiff’s wife was corroborative, stating that from the time of the accident, the plaintiff “always seemed to be in a lot of pain and was really stiff in his back and neck”.

113. The review panel’s reference in its reasons to Dr Kurtzer’s notes included the plaintiff being “slung forward”, and indeed provided more detail of the plaintiff’s history than was in his statement. The review panel’s reasons, however, do not record the plaintiff’s contention that his neck pain did not abate, or that his condition was asymptomatic before the accident. Rather, the review panel focused exclusively on the content of clinical notes, medical reports, including imaging reports, and the reports from earlier assessments and the first review panel, on which basis it concluded that the plaintiff’s soft-tissue whiplash injury had resolved, by implication consistently with the lapse in reporting by the plaintiff to Dr Kurtzer of symptoms of neck pain for some months following the accident, thus concluding that the re-emergence of the neck pain must have due to the pre-existing and on-going degenerative changes to his cervical spine.

114. It is accepted that the statements of the plaintiff and his wife, and the other documents relied upon as the basis of his “substantial argument”, were before the review panel and, having regard to the basis of the review panel’s conclusions, the contents of those statements are not necessarily inconsistent with an acceptance of the plaintiff’s contention that he did not have neck pain or restriction before the accident, but did so consistently thereafter.

115. However, the issue that is raised by the plaintiff’s fourth ground is not whether the review panel had considered the material that based his argument or whether it was inconsistent with the review panel’s reasons or determinations, but rather, whether it constituted a substantial argument that the review panel was obliged by s 63(3A) of the MAC Act to address in its reasons as part of its review, and whether it had failed to do so. In my opinion, this ground is made out.

116. The Guidelines, cls 1.17 and 1.18, at [30] above, stipulate that the cause and nature of an impairment is to be evaluated on “the available evidence”, which includes “relevant evidence”. One of the three required stages of assessment of the degree of permanent impairment involves “an interview and a clinical examination, wherever possible”.

117. The review panel’s expressed reason for not re-examining the plaintiff was that, in its view, the central issue was “whether the initial injury to the cervical spine had resolved” and that there was ample material available to it that was “more than adequate” to come to a decision. The most important material in support of the plaintiff’s case on that central issue was his continuing symptoms of neck pain, unabated since the time of the accident. A failure to mention that aspect of the material meant that the plaintiff’s simple but, in my view, “substantial”, argument, went unanswered.

118. In so finding, I consider it puzzling that the review panel did not take note of the proper officer’s reason for referring the matter to the second review panel, as recited at [44] above.

119. I find that the review panel’s decision was affected by jurisdictional error. I will quash the review panel’s decision and remit the matter for re-determination by another panel constituted by the second defendant.

Orders

120. Accordingly, I make the following orders:

1. The three certificates issued by the third defendant on 5 November 2018 are set aside.

2. The plaintiff’s application for review dated 8 May 2018 is remitted to the second defendant, to be referred to a panel of medical assessors for determination in accordance with s 63 of the Motor Accidents Compensation Act 1999 (NSW).

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

**********

Endnote

Decision last updated: 24 June 2020