Bridge v QBE Insurance (Aust) Ltd

[2025] NSWSC 702

Supreme Court

New South Wales

Medium Neutral Citation:

Bridge v QBE Insurance (Aust) Ltd [2025] NSWSC 702

Hearing dates:

28 May 2025

Date of orders:

4 July 2025

Decision date:

04 July 2025

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1) Mr Bridge’s application is dismissed.

(2) Unless the parties approach with short written submissions within 14 days, Mr Bridge is to bear the insurer’s costs, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – application for judicial review of decisions of Delegate of President of the Personal Injury Commission and of Appeal Panel – whether Delegate obliged to give reasons for decision to refer to Appeal Panel – whether Appeal Panel gave adequate reasons and exposed its actual path of reasoning – application dismissed

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Motor Accidents Injuries Act 2017 (NSW)

Personal Injury Commission Act 2020 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91

Avon Downs Pty Ltd v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 353; [1949] HCA 26

Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22

Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572

Dominice v Allianz Insurance [2016] NSWCA 171

GIO General Limited V Smith & Ors Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802

Hot Holdings v Creasy (1996) 134 CLR 496; [1996] HCA 44

Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287

Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163

Insurance Australia Ltd v Marsh [2022] NSWCA 31

Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604

Insurance Australia v March [2022] NSWCA 31

Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253

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

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32

Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80

Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7

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

The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1949) 69 CLR 407; [1944] HCA 42

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

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

Category:

Principal judgment

Parties:

Arnold Bruce Bridge (Plaintiff)

QBE Insurance (Aust) Pty Ltd (First Defendant)
Belinda Cassidy, Rhys Gray and David McGrath as a Review Panel constituted under s.63 of the Motor Accidents Compensation Act 1999 (Second Defendant)
President of the Personal Injury Commission of New South Wales (Fourth Defendant)

Representation:

Counsel:
M Best (Plaintiff)
J Gumbert (First Defendant)

Solicitors:
Everingham Solomons Solicitors (Plaintiff)
McInnes Wilson Lawyers(First Defendant)
Crown Solicitors (Second and Fourth Defendants)

File Number(s):

2024/374871

Publication restriction:

Nil

JUDGMENT

1. In June 2014 Mr Bridge was involved in a low-speed motor vehicle accident in which he injured his back and neck. In 2022 he was also involved in a high-speed motor bike accident, but it appears that did not result in any relevant further injury. He has twice undergone spinal fusion surgery and has not worked since the first accident. In 2023 he pursued a claim under s 131 of the Motor Accidents Compensation Act 1999 (NSW) for the non-economic loss which resulted from his injuries.

2. The whole person impairment Mr Bridge suffered as the result of the 2014 accident had been repeatedly assessed. There was no question on the available information that before the accident he had suffered degenerative changes in his spine, which had to be taken into account in assessing the impairment which resulted from the accident.

3. QBE did not concede that the injuries Mr Bridge had suffered in the 2014 accident had resulted in greater than 10% whole person impairment, the statutory impairment threshold: s 131. Mr Bridge pursued the resulting medical dispute in the Personal Injury Commission. That dispute was referred to Dr Hyde Page for assessment: s 60.

4. What then had to be considered included that Dr Millons had found that the impairment flowing from the 2014 accident was 41%; Dr Bosanquet finding that Mr Bridge had suffered no whole person impairment as the result of that accident, his impairment having been entirely the result of pre-existing degenerative changes; but Dr Abraszko concluding that his whole person impairment resulting from the 2014 accident was 40%.

5. In December 2023 Dr Hyde Page certified that Mr Bridge’s whole person impairment was 18%, he having concluded that the 2014 accident had contributed to his impairment, which he assessed to be 20%, from which he made a 10% deduction for his pre-existing impairment. QBE sought a review of that assessment on the ground that it was incorrect in a material respect: s 63(2). It challenged both the conclusion that the statutory threshold had been satisfied and how account had been taken of the pre-existing impairment in arriving at the 18% whole person impairment.

6. The result was that a delegate of the President of the Commission concluded that there was reasonable cause to suspect that the assessment was incorrect in a material respect: s 63(2B).

7. The assessment certificate was then referred to a Review Panel, which re-examined Mr Bridge and undertook the required new assessment: s 63(3A). It concluded that the whole body impairment he had suffered as the result of the 2014 accident was not greater than 10%, it having been entirely the result of his pre-existing degenerative condition, which had progressed over time. The Panel thus set aside the medical certificate Dr Hyde Page had issued.

8. In this Court Mr Bridge pursues judicial review of the decision of both the Delegate and the Review Panel. He seeks orders setting aside both decisions and referring the matter to the Delegate and/or the President of the Commission, to refer the dispute to a different Review Panel. In summary he contends that:

1. The Panel committed jurisdictional error and/or an error of law on the face of the record:

1. In determining that the injuries caused by the 2014 motor accident did not give rise to permanent impairment greater than 10%; and

2. In failing to give adequate reasons or expose the actual path of reasoning by which it arrived at its assessment.

2. The Delegate fell into jurisdictional error in referring QBE’s appeal to the Review Panel:

1. Having to be satisfied that there was a reasonable cause to suspect that the Medical Assessor’s reasons were incorrect in a material respect; and

2. In determining that the Medical Assessor’s reasons in respect of apportionment were inadequate, that providing reasonable cause to suspect that the assessment was incorrect in a material respect, the conclusion arrived at only being capable of explanation on the ground of a misconception of the applicable law.

3. The Delegate also fell into an error of law on the face of the record in being satisfied that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect.

9. Mr Bridge also contends that if the Court is satisfied that he has made out the case advanced in respect of the Delegate’s decision, it will not need to consider what he advances in relation to the Review Panel’s decision. That is disputed, given views expressed in Dominice v Allianz Insurance [2017] NSWCA 171 at [10].

Issues

10. There is no issue that Mr Bridge had suffered relevant degenerative changes before he was injured in the 2014 accident.

11. What the experts and assessors have disagreed about is whether Mr Bridge recovered from the injuries which he suffered in that accident, they thus not making or continuing to make any ongoing contribution to the whole person impairment which he suffers. The Panel, like Dr Bosanquet, having reached the view that his impairment is entirely the result of degenerative changes, not injuries which he suffered in the 2014 accident.

12. Nor is there any issue as to the law which governed the assessment of the parties’ medical dispute, or the exercise of the functions of the Medical Assessor, Delegate and Review Panel.

13. There is also no issue that the Court’s function on a judicial review application does not include any consideration of the merits of the conclusions arrived at by the Assessor, Delegate or Panel about the issues they respectively had to consider.

14. It is settled that under this statutory scheme, given the provisions of ss 61(9) and 63(6), both medical assessors and review panels are obliged to give reasons for their assessments in the way explained in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

15. Such reasons must be read as a whole, given a beneficial construction and are not to be scrutinised in overzealous judicial review, by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [29]-[31].

16. The function of an assessor being to determine a quintessentially factual issue, the degree of permanent impairment which an injured person has suffered, that then being reduced to a percentage, calculated in accordance with the applicable Guidelines: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [40]. A failure to comply with those Guidelines may constitute a constructive failure to perform a statutory duty: Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22 at [16]-[22].

17. The Act gives the President of the Commission a gatekeeper function on an application for review of an assessment: Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 and Insurance Australia Ltd v Marsh [2022] NSWCA 31. Section s 63(2B) limiting the referral of an assessment for review to disputes where the President “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”.

18. That requires consideration of the matters stated in the submissions attached to the review application: Insurance Australia v March [2022] NSWCA 31 at [43].

19. Neither the Act, applicable Regulations, the Personal Injury Commission Act 2020 (NSW), the Personal Injury Commission Rules 2021 (NSW), nor the Personal Injury Commission Procedures impose an obligation on delegates to give reasons, when referring a matter to a review panel. Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes, providing that “The President is not required to provide reasons where he or she decides that the matter can proceed to a review panel assessment.”: 45.

20. Despite this, if a delegate’s opinion to refer or refuse to refer a matter is reached by misconstruing the requirements of the Act, the result is that the required statutory opinion has not been formed: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [36] citing The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1949) 69 CLR 407 at 432; [1944] HCA 42. The critical question then being whether the decision “was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [38].

21. If referred, the function of a review panel “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.”: s 63(3A).

22. What remained in issue between the parties in this case thus included whether:

1. The Delegate gave reasons;

2. Reasons were required;

3. Those given by the Delegate were inadequate;

4. The Review Panel’s assessment was undertaken in accordance with the applicable Guidelines; and

5. The Review Panel’s reasons were inconsistent and inadequately exposed its path of reasoning.

Was the Delegate obliged to give reasons?

23. In both in Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80 and Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604 it was concluded that the President’s gatekeeper function under the Motor Accidents Injuries Act 2017 (NSW) in relation to a referral of an assessor’s certificate for review by a review panel, involved an administrative function which did not require the giving of reasons.

24. There was no issue that the President’s function under s 63(3B) of the 1999 Act involves a similar administrative function, which thus does not require the giving of reasons, unless imposed by the legislative regime or some other requirement.

25. In the case of a decision to refer an assessment to a review panel, the President’s Procedural Directions do not impose such an obligation. Nothing else imposes such an obligation when the decision made is to refer for review. Thus for the reasons explained in Pinarbasi and Liu, such an obligation cannot be implied in the 1999 Act, given the nature of the administrative function which a delegate is exercising when considering a review application.

26. The absence of such an obligation does not preclude this Court’s review of a delegate’s decision, if there has been jurisdictional error: Avon Downs Pty Ltd v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360; [1949] HCA 26.

27. There may also be circumstances where the failure to give any reason supports an inference that the decisionmaker had no good reason: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-664; [1986] HCA 7. But that this is such a case is not apparent, despite what the Delegate said when making the decision to refer.

28. I thus do not accept that a decision given by a delegate under s 63 cannot arise for review on an application such as this, despite what was observed in Hot Holdings v Creasy (1996) 134 CLR 496; [1996] HCA 44 at [159] and by Basten AJ in Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163 at [13] and Dominice.

29. But this judicial review application does not turn on such questions.

Did the Delegate fall into relevant error?

30. It should be noted that pertinently, what the Assessor concluded included:

“Summary of injuries referred by the parties

24.   The following injuries WERE caused by the motor accident:

•   Lumbar spine – Hyperextension/hyperflexion of the lumbar spine. L4/S1 lumbar fusion. L4/5 and L5/S1 disc protrusion.

•   Skin – Lower abdomen scar at surgery site

25.The following injuries WERE NOT caused by the motor accident:

•   Cervical spine – Hyperextension/hyperflexion of the cervical spine. C4/7 cervical fusion. C4/5, C5/6, C6/7 disc protrusion.

•   Skin – Neck scar from cervical fusion”

31. The Assessor finally concluded that Mr Bridge’s whole person impairment was 18%, having found that his two-level lumbar spinal fusion had resulted in whole person impairment of 20%. The Assessor making “a one tenth deduction for pre-existent degenerative disc disease of the lumbar spine and he did have a history of some low back prior to his injury. One tenth of 20% is 2% and when subtracted, he has 18% WPI.”

32. Those conclusions were challenged by the insurer and arose for the Delegate to consider when determining whether to refer the matter to a review panel, given the submissions which the parties advanced.

33. The insurer’s application was relevantly advanced on the basis that:

“5.   In the Certificate, Assessor Hyde Page makes the following determinations:

(a)   The claimant’s lumbar spine hyperflexion/extension, L4/S1 fusion and L4/5 and L5/S1 disc protrusion are causally related to the subject accident.

(b)   The claimant’s lumbar spine scarring is causally related to the subject accident.

(c)   The claimant’s lumbar spine injury and associated scarring result in an 18% whole person impairment finding.

(d)   The claimant’s cervical spine injury is not causally related to the subject accident.

(e)   The claimant’s cervical spine scarring is not causally related to the subject accident.

6.   The insurer submits that the finding that the claimant’s lumbar spine surgery is causally related to the subject accident is incorrect in a material respect.

7.   The insurer submits that the finding that the claimant’s lumbar spine injury and associated scarring is related to the subject accident is incorrect in a material respect.

8.   The insurer submits that the finding that the claimant’s lumbar spine injury and associated scarring results in a whole person impairment of 18% is incorrect in a material respect.”

…

17.    The insurer refers to clause 6.32 of the Motor Accident Guidelines which states:

6.32 The capacity of a Medical Assessor to determine change in a physical impairment will depend on the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’ Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.

18.    The assessor has applied apportionment in this Certificate regarding the claimant’s preexisting lumbar spine injury.

19.    The Assessor made an initial whole person impairment finding of 20% and then deducted one tenth for apportionment, resulting in a finding of 18% whole person impairment.

20.    When discussing his reasoning for the apportionment, the Assessor only states ‘there is one tenth apportionment in the lumbar spine.’

21.    Firstly, the insurer submits the Assessor’s reasoning for his apportionment in inadequate pursuant to clause 6.32 of the Motor Accident Guidelines. A Medical Assessor is required to provide accurate information and explanation when applying apportionment.

22.    Secondly, the insurer submits the Assessor’s apportionment is not in line with the contemporaneous medical evidence provided to him.

...

34. Mr Bridge’s case was submitted to be that:

“Cervical Spine

19.    Given Assessor Hyde Page’s certificate determined that the claimant's cervical spine injury was not caused by the motor accident, a contention made by the insurer in its submissions dated 27 April 2023 (from paragraphs 7 to 27), it cannot be seriously suggested that Assessor Hyde Page's determination in respect of the claimant's cervical spine was incorrect in a material respect, requiring the referral to a medical Panel for review. In light of Assessor Hyde Page's determination, the ‘failure” to mention an MRI report of the cervical spine undertaken prior to the motor accident cannot amount to a satisfaction in the mind of the President that there is reasonable cause to suspect the medical assessment was incorrect in a material respect.

Lumbar Spine

20.   The insurer's submissions dated 27 April 2023 (at paragraphs 3 to 5) contended that the certificate provided by Assessor Ashwell in respect of a “treatment dispute” based upon a referral pursuant to s.58(1)(a) and (b) of the Act, was binding, such that the claimant could not proceed with the 2023 Application for Assessment of Permanent Impairment.

21.   The insurer also relied upon medical evidence to support its contention that the claimant's lumbar spine condition was unrelated to the motor accident and was “pre-existent”.

22.   Assessor Hyde Page considered the documents provided in the Reply (see paragraph 5 of the Certificate) and particularly referred to the insurer's medical evidence supporting the contention that the claimant's lumbar spine condition was unrelated to the motor accident and was “pre-existent” (see page 7 of the Certificate and the references to Dr Bosanquet's opinion). Assessor Hyde Page also summarized the relevant radiological and imaging studies (see pages 9 to 12 of the Certificate) before making his own assessment, determining that the claimant had “... suffered injury to his lumbar spine in a low speed rear-end motor vehicle accident’... which had “aggravated... [an]... underlying degenerative disc disease of the lumbar spine that was quite advanced, but had previously been minimally symptomatic”.

23.   The insurer also complains that Assessor Hyde Page failed to provide an adequate path of reasoning in that he failed to provide accurate information and explanation when apportioning the extent of the claimant's pre-existent impairment.

24.   Relevantly, Assessor Hyde Page in assessing the extent of the claimant's permanent impairment determined on page 14 of the Certificate:

In his lumbar spine, Arnold Bridge has had a two-level lumbar spinal fusion at L4/5 and L5/S1. He no longer has evidence of radiculopathy. Motor Accident Authority Guides page 113 Paragraph 6.145, states that spinal fusion is included under multilevel structural compromise. With reference to ... AMA Guides 4th Edition page 102, this is DRE Category IV lumbar spine injury or condition, that gives 20% WPI.

I consider there is a one tenth deduction for pre-existent degenerative disc disease of the lumbar spine and he did have a history of some low back prior to his injury. One tenth of 20% is 2% and when subtracted, he has 18% WPI.

25. The insurer's complaint fails to appreciate the nature of the obligations to provide reasons cast upon an Assessor. It is well settled that the reasons provided by a Medical Assessor need not be extensive or provide a detailed explanation of the criteria applied in reaching a professional judgment: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284; Bratic v Motor Accidents Authority of New South Wales (2010) 57 MVR 122; [2010] NSWSC 1244.

26. Further, what is required is the provision of reasons for the decision after undertaking the assessment and in compliance with the Motor Accident Guidelines: Dunbar v Allianz Australia Insurance Ltd (2015) 70 MVR 15; [2015] NSWSC 119.

27. Nor are the reasons to be construed minutely and finally with an eye keenly attuned to the perception of error: Dogon v Redmond (2010) 57 MVR 5; [2010) NSWSC 1329. That caution prevents disgruntled participants to a dispute, subjecting the Assessor’s reasons to minute and detailed textual criticism in the hope of finding something on which to base an argument: Allianz Australia Insurance Ltd v Motor Accidents Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888; Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259 at 272; QBE Insurance (Australia) Ltd v Volokhova (2014) 67 MVR 31; [2014] NSWSC 726; Insurance Australia Ltd (t/as NRMA Insurance) v Pate (2016) 74 MVR 469; [2016] NSWSC 278.

28. Finally, Assessor Hyde Page was not required to choose between the different medical opinions presented to him, he was required to form his own opinion: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.”

35. The Delegate’s decision was short:

“BACKGROUND

1.   Arnold Bridge (the claimant) was injured in a motor accident on 17 June 2014.

2.   On 16 November 2023, the claimant was assessed by Medical Assessor Hyde Page and he issued an assessment outcome (medical assessment) in a certificate dated 4 December 2023.

3.   The Assessor found that the following injuries caused by the motor accident:

•   Lumbar spine – Hyperextension/hyperflexion of the lumbar spine. L4/S1 lumbar fusion. L4/5 and L5/S1 disc protrusion.

•   Skin – Lower abdomen scar at surgery site.

gave rise to a permanent impairment of greater than 10% (18%).

4. QBE (the insurer) made an application under s 63 of the Motor Accidents Compensation Act 1999 (the Act) for referral of the medical assessment to a Review Panel on the grounds that the medical assessment was incorrect in a material respect. The insurer relies on the particulars set out in the application and supporting documentation.

5.   The claimant does not agree that the application for referral should be granted and addresses the issues raised by the insurer.

6. Section 63(2B) of the Act provides that the President is to arrange for the medical assessment to be referred to a Review Panel, but only if the President 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.

ACCEPTANCE OF REVIEW APPLICATION

7.   The ground for review that the Assessor’s reasoning for apportionment is inadequate pursuant to clause 6.32 of the Motor Accident Guidelines satisfies me of reasonable cause to suspect that the medical assessment is incorrect in a material respect.

8.   The application is accepted and will be referred to a Review Panel.”

36. Given what the Assessor had concluded and the parties had joined issue over, I do not consider that in so providing his decision, it can be accepted that the Delegate was purporting to give any reasons for his conclusion that the dispute had to be referred to a review panel, because the insurer had established that the assessment could be incorrect in a material respect.

37. I certainly do not accept that what the Delegate said can properly be characterised as having given reasons “of some weight”, as was submitted orally.

38. Nor do I accept that the Delegate had before him, or had to consider, all that the parties had put before the Medical Assessor, in arriving at his conclusion about what they had put in issue about the referral. That this material was before the Delegate was not established. Nor that it had to be before the Delegate. That does not appear to be required by the Act or any applicable procedure. That is understandable, given the limited administrative function which the Delegate had to perform.

39. That the Delegate said that “the Assessor’s reasoning for apportionment is inadequate pursuant to clause 6.32 of the Motor Accident Guidelines satisfies me of reasonable cause to suspect that the medical assessment is incorrect in a material respect”, accords with an appreciation that there was no obligation to provide reasons which explained that conclusion. Nor to explain why the arguments advanced by Mr Bridge were rejected.

40. Mr Bridge has not established that there was any obligation imposed on the Delegate to give such reasons. Nor that the little that the Delegate said purported to give reasons which were not required. Even if the Delegate had given reasons when none were required, it is difficult to see how they could establish a basis for judicial review, unless they disclosed that the Delegate had fallen into jurisdictional error.

41. What the Delegate said discloses no such error. It follows that on this application the decision to refer cannot be set aside, as Mr Bridge seeks.

Did the Review Panel err?

42. Nor am I satisfied that the reasons which the Panel gave established any error which would permit the exercise of the Court’s discretion to set aside its decision and to make the other orders which Mr Bridge seeks, given the Panel’s task, to undertake a new assessment. That assessment did not depend on finding error on the Assessor’s part, although his certificate was part of the material which the Panel had to consider.

43. The evidence establishes that the Panel first considered the cases which the parties advanced on the review application by their submissions and concluded that Mr Bridge’s re-examination was required. It was undertaken by two of its members, it having identified in its March 2024 report and directions, what it considered to be the real issues: s 63(3B) of the 1999 Act and s 42 of the Personal Injury Commission Act. The Panel having noted “The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.”: s 42(1).

44. The Panel also identified documents which it did not appear to have; required the parties to confer with a view to narrowing what was in issue; and issued directions about steps which the parties had to pursue.

45. Having examined Mr Bridge the Panel finally gave extensive reasons for its conclusion that it did not agree with the Assessor, with the result that a new certificate had to be issued. The Panel correctly explained the medical dispute the Assessor had to consider, noting:

15.   At [2], the Medical Assessor confirms he was asked to assess the following injuries:

(a)   cervical spine – whiplash injury causing three level disc protrusions and cervical spine fusion surgery;

(b)   lumbar spine – whiplash injury causing L4/5 and L5/S1 disc protrusions requiring lumbar spine fusion surgery, and

(c)   scarring as a result of the two surgeries.

46. It also noted the history the Assessor had to consider in light of his examination of Mr Bridge and the medical reports, observing that:

20.   After reviewing some of the medical reports, Medical Assessor Hyde Page at [22] said the accident aggravated the claimant’s underlying degenerative disc disease which was advanced but minimally symptomatic and which led to the lumbar fusion.

21.   He found no evidence of a cervical spine injury caused by the accident and noted the significance of the January 2022 accident.

47. The Panel explained: the applicable legislative framework; the assessment it had to review; the issues which it had to determine, by reference to the submissions advanced, which turned in part on whether the Assessor had been bound by an earlier certificate issued by Medical Assessor Ashwell in 2018; procedural matters; the final submissions pressed; its review of the evidence, including statements Mr Bridge had made, what treating medical records and reports revealed, before and after the 2014 accident, as well as what the radiology evidence established; what medical legal reports disclosed; what Assessor Ashwell had found; and what had been found on Mr Bridge’s re-examination, including the history he then gave; and the examination findings.

48. The Panel turned, at page 30 of its report, to its consideration of the issues, beginning with whether Assessor Ashwell’s certificate was binding on it. In these proceedings the insurer accepted that the case it had advanced about this was incorrect, as the Panel found.

49. The Panel then considered whether Mr Bridge was a reliable historian, concluding for reasons which it explained at [242]-[249] that his evidence should be approached with caution.

50. The Panel then dealt with his lower back injury, before turning to the impairment of his lumbar spine. Its conclusions were succinctly explained:

256.   The Panel accepts that the claimant had, at the time of the accident, degenerative changes in the spine and that these have been exacerbated in the accident.

257.   It is the clinical judgment of the medical members of the Panel that the car accident of June 2014 did not materially contribute for the need to the lumbar spine laminectomy and fusion surgery. The Panel is of the view that the surgery which occurred six years after the accident was not related to the exacerbation of the claimant’s degenerative condition. The Panel is of the view that the need for the surgery was to address the longstanding underlying constitutional and degenerative conditions which have continued to progress.

What is the impairment of the lumbar spine resulting from the injury?

258.   As the Panel is of the view that there is no continued aggravation of the underlying condition, the Panel is not satisfied that any of the claimant’s current lumbar spine impairment is related to the injuries caused by the accident.

Neck injury

259.   While the Panel notes the legal representatives of the parties did not place in issue the assessment of the claimant’s cervical spine, Mr Bridge was insistent that it was in issue and therefore the Panel has considered it.

51. The reasons for these conclusions were earlier given:

250.   While the medical members of the Panel have doubts that the forces involved in the impact between the vehicle behind the claimant and the claimant’s vehicle were significant enough to cause any injury, the Panel notes the presence of a tow bar on the claimant’s vehicle and the bull bar on the other vehicle.

251.   In the absence of any biomechanical type expert evidence the Medical Assessors are of the view that the mechanism of the accident could cause an injury or worsen an already existing condition in the claimant’s lower back.

252.   The Panel is satisfied on the basis of the contemporaneous records that the claimant did sustain an injury to his lower back. The ambulance record, the hospital notes and the claimant’s workers compensation claim support that finding.

What is the nature of the injury?

253.   The Panel is of the view that the injury caused by the accident was a soft tissue injury on a background of degenerative spinal conditions.

254.   The Panel notes the July 2013 entry is suggestive of a previous disc injury, and that the claimant denies this. The Panel notes the claimant’s own evidence of the nature of his duties at the mines driving bulldozers over rough mining ground and the constant vibrations felt in his spine and that after a week’s work he would need time to rest. The Panel also notes that the claimant’s evidence was of tingling in his legs after the car accident and then particularly significant vibrations at work sometime later causing injury to his lower back.

255.    The Panel also considered the radiology which revealed in June 2014, partial sacralisation of L5 (partial fusion to S1) which is a congenital feature not caused by the accident. Spondylolisthesis at L5/S1 was reported in August 2014 and disc bulges at L5/S1 in June 2015. It is the clinical judgment of the medical members of the Panel that the spondylolisthesis was not caused by the forces involved in the car accident of June 2014. The MRI of 30 June 2015 describes it as “degenerative spondylolisthesis”. The Panel also does not accept that the disc bulges reported in June 2015 were caused by the forces involved in this accident.

256.    The Panel accepts that the claimant had, at the time of the accident, degenerative changes in the spine and that these have been exacerbated in the accident.

257.    It is the clinical judgment of the medical members of the Panel that the car accident of June 2014 did not materially contribute for the need to the lumbar spine laminectomy and fusion surgery. The Panel is of the view that the surgery which occurred six years after the accident was not related to the exacerbation of the claimant’s degenerative condition. The Panel is of the view that the need for the surgery was to address the longstanding underlying constitutional and degenerative conditions which have continued to progress.

What is the impairment of the lumbar spine resulting from the injury?

258.   As the Panel is of the view that there is no continued aggravation of the underlying condition, the Panel is not satisfied that any of the claimant’s current lumbar spine impairment is related to the injuries caused by the accident.

52. The merits of these conclusions do not arise for consideration. It is whether Mr Bridge has established that the Panel fell into the alleged legal errors which has to be determined, he contending amongst other things that its conclusions were contradictory. I am not satisfied that he has met that onus, given the path of reasoning which the Panel exposed by the reasons it gave.

The parties’ cases

53. The case pressed for Mr Bridge included that in considering whether the injuries caused by the accident contributed to the spinal surgery the Panel had erred, because that was not a matter over which they had joined issue, despite s 58 including in the disagreements about medical matters to which Part 3.4 medical assessment matters applies, disagreements about whether any treatment relates to the injury caused by the motor accident: s 58(1)(b). As well as disagreements about “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”: s 58(1)(b).

54. The medical dispute referred to the Assessor under s 60(1) included:

“(b)   lumbar spine – whiplash injury causing L4/5 and L5/S1 disc protrusions requiring lumbar spine fusion surgery; and”

55. The result of the Panel’s erroneous approach, Mr Bridge contended, was that its findings at [256] were inconsistent with its findings at [258], [252] and [253]. That establishing that it had not complied with its obligation to give reasons which exposed its path. That was disputed.

56. The insurer’s case being pressed on the basis that the Guidelines required the assessment of Mr Bridge’s impairment to be undertaken in the way specified at 1.31 and 1.32, pre-existing impairment being present. Guideline 1.34 applying if there had been further subsequent injury, which was not factually found in Mr Bridge’s case.

57. The required process thus involving subtraction, rather than apportionment, the approach which the Assessor had adopted, when a conclusion was arrived at about percentage impairment. The Assessor had thus failed to undertake the assessment in the required way: Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572 at [35]-[36] and GIO General Limited v Smith & Ors Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802.

58. The insurer also contended that the Guidelines were protective for an applicant, pre-existing non-symptomatic impairment not having to be taken into account on such an apportionment. Given that Mr Bridge’s impairment was largely asymptomatic, there ought to have been no deduction made for them. The Guidelines also providing that it was sufficient to establish causation if the accident was more than a negligible cause of the injuries. The possible deductions under the Guidelines being 0%, 5% and 10%, depending on the assessment of the pre-existing impairment, that depending on the symptoms present at the time of the accident.

59. The case advanced before the Delegate had turned on the Assessor’s failure to explain why he had concluded that the impairment assessed to be 20% was to be reduced by 10% to 18%, no reference having been made to the requirements of the applicable Guidelines.

60. The result of the Panel’s approach on its new assessment, was that it did not make the critical finding as to causation. The Panel awkwardly, although not incorrectly, explained what the Assessor had done at [22] of its reasons. Unlike the Assessor, it concluded that the accident had only temporarily exacerbated Mr Bridge’s pre-existing condition, with the result that the spinal surgery which he underwent was not causally related to it. That was a departure from what Assessor Ashwell had concluded, but it was not bound by that assessment.

61. Mr Bridge also gave a history of some back problems before the accident suggestive of a previous disc injury consistent with work undertaken in the mines and complaints about back pain afterwards. But the Panel concluded that he had only suffered soft tissue injuries in the accident, spondylolisthesis found in August 2014 not consistent with the forces involved in the car accident, what was found on MRI having been described as degenerative. It also concluded that disc bulges identified in 2015 had not been caused by the forces involved in the accident.

62. The Panel’s reasons were thus consistent. That is, that the car accident did not materially contribute to Mr Bridge’s need for spinal surgery 6 years afterwards, it being required to address his longstanding underlying constitutional and degenerative conditions which the accident had not exacerbated. Its reasons were explained by use of the language of the applicable Guidelines. Accepting that the accident had aggravated the pre-existing degenerative condition, it concluded that this was no longer of any consequence at the time surgery was required, then because of his degenerative condition having worsened.

63. Having concluded that the minor aggravation caused by the accident was not a material cause of the surgery, the Panel thus did not have to consider questions of deduction for pre-existing impairment.

55. It followed that on this application the Court could not interfere with the Panel’s decision, its reasoning process being able to be discerned from the reasons which it gave: Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 at [56]-[57].

The reasons given were adequate

65. I am satisfied that the insurer’s case must be accepted, given the Panel’s explanation of the conclusions it had reached. I am unable to accept that they were contradictory.

66. The reasons given disclose that the conclusions which the Panel arrived at had regard to the forces involved in the accident in which Mr Bridge was injured and the view it took of Mr Bridge as an historian. It taking the view that he had catastrophised his evidence on examination, having described suffering pain over his entire body which did not accord with contemporaneous documents.

67. It considered that his was a case where the accident loomed large in his consciousness, with everything that had occurred afterwards having been blamed on it, given the chronic pain which he suffered.

68. The Panel doubted that the accident had been significant enough to cause any injury, although it was accepted that it could have caused injury or worsened an existing condition. Given contemporaneous records it concluded that Mr Bridge did then suffer soft tissue injury from which he recovered.

69. The Panel noted problems in 2014 and 2015 which had not been caused by the accident, which established the degenerative changes in Mr Bridge’s spine. But they concluded that the injury he suffered in the accident did not materially contribute to the later surgery, it being required to address his longstanding underlying conditions, he having recovered from the soft tissue injuries.

70. Reasons were also given for conclusions which were reached about the claimed injury to Mr Bridge’s neck, which he had advanced at the examination.

71. The result was that the Panel was not satisfied that the soft tissue injuries sustained to Mr Bridge’s neck and back in the 2014 accident exacerbated his underlying degenerative changes. They concluding that they were not of long-term material consequence and did not contribute to the need for his later surgery or current impairment.

72. The result was that the Panel came to a different view to that reached by the Assessor, who had concluded that even though the accident was a “low speed rear-end motor vehicle accident”, it did aggravate Mr Bridge’s underlying degenerative disc disease of the lumbar spine and that this aggravation never ceased. The Panel concluded that it did cease, with the result that the accident did not contribute to Mr Bridge’s whole person impairment.

73. Given the task the Panel had to undertake, a new assessment of Mr Bridge’s impairment and the conclusions which it reached, it did not have to resolve the question of whether the insurer was correct in contending that the Assessor had erred in how he approached the assessment of the contribution which the aggravation he had found, had made to Mr Bridge’s whole person impairment.

74. That was regulated by Guideline 6.32, which required consideration of the pre-existing impairment, which then had to be subtracted from the impairment the Panel found, in order to arrive at a conclusion about the impairment caused by the accident.

75. Instead, the Medical Assessor reduced the whole person impairment he found, of 20%, by 10%, that resulting in a total impairment of 18%. It is difficult to see that the Guidelines permitted that approach. That explains the Delegate’s decision to refer the assessment for review. But because of the conclusion which it arrived at, the Panel did not have to resolve the cases the parties advanced about what Guideline 6.32 required, when Mr Bridge’s whole person impairment was calculated.

76. How that calculation must be undertaken thus also does not arise to be resolved on this application.

77. The case the insurer advanced included that the accident had not resulted in a whiplash injury which caused the disc protrusions which required the lumbar spinal fusion. The accuracy of the Panel’s conclusion, that the accident did not result in such an injury, having concluded that it had resulted only in soft tissue injuries from which Mr Bridge recovered before the surgery, also does not arise to be considered.

78. Its obligation was to undertake the review “by way of a new assessment of all the matters with which the medical assessment is concerned” and in its reasons, to expose the path of reasoning which led to that conclusion. Reading its reasons in the required way, I am not persuaded that the Panel failed to do so.

79. In Mr Bridge’s written submission there was no issue taken with the Panel’s reasoning in respect of the forces involved in the impact and the resulting injury to Mr Bridge’s back, or with the conclusion that it was a soft tissue injury on a background of degenerative spinal conditions, which were exacerbated by the accident.

80. The gap in the Panel’s reasoning, which could not be filled by necessary inference, in the way discussed in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6], was claimed by the insurer in oral submissions not to have been identified. There were no submissions advanced in reply.

81. Issue was taken with the conclusion the Panel also reached, that there had been no continued aggravation of the underlying condition, with the result that Mr Bridge’s current lumbar spine impairment was not related to the injuries suffered in the accident. It being submitted that this opinion was entirely inconsistent with the other opinions it had formed and that it was the antithesis of what was required.

82. I am unable to accept this.

83. The reasons given disclose that the Panel concluded that Mr Bridge recovered from the soft tissue injuries which he had suffered in the 2014 accident, which thus had no ongoing consequences and did not contribute to the need for surgery or the impairment it identified on its examination.

84. Whether that conclusion was correct, given all that the evidence established does not arise for consideration. The Court being confined, as it is to the correction of legal error.

85. That the Panel fell into the claimed errors thus cannot be accepted. It had to come to conclusions about the matters the parties had joined issue over in its new assessment, having itself examined Mr Bridge. It gave reasons for the conclusions it reached. They had regard to the history he gave and its inconsistency with the forces involved in the low-speed accident in which he had been involved in 2014 and what contemporaneous records established, as well as its doubts about his reliability as a historian.

86. The result is that it must be accepted that the Panel did adequately expose its path of reasoning to the conclusions it arrived at. It follows that the orders which Mr Bridge seeks cannot be made.

Costs

87. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42. That is an order that Mr Bridge bear the insurer’s costs.

88. Unless the parties approach with short written submissions within 14 days, that will be the Court’s order.

Orders

89. For the reasons given I order that:

1. Mr Bridge’s application is dismissed.

2. Unless the parties approach with short written submissions within 14 days, Mr Bridge is to bear the insurer’s costs, as agreed or assessed.

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Decision last updated: 04 July 2025