David John Francica v Allianz Australia Insurance Limited

[2015] NSWSC 1140

Supreme Court

New South Wales

Medium Neutral Citation:

David John Francica v Allianz Australia Insurance Limited [2015] NSWSC 1140

Hearing dates:

3 December 2014

Date of orders:

24 July 2015

Decision date:

24 July 2015

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) A declaration that the Review Panel Certificate (including reasons) of the Motor Accidents Authority issued on 2 December 2013 in relation to the plaintiff and the subsequent Replacement Review Panel Certificate (including reasons) issued on 6 February 2014 is affected by error of law on the face of the record and by jurisdictional error;

 

(2) An order in the nature of certiorari setting aside the aforesaid Review Panel Certificate issued on 2 December 2013;

 

(3) An order in the nature of certiorari setting aside the aforesaid Replacement Review Panel Certificate issued on 6 February 2014;

 

(4) An order in the nature of mandamus that the Motor Accident Authority deal with the review in accordance with law;

 

(5) The first defendant shall pay the plaintiff’s costs of and incidental to these proceedings;

 (6) The parties, and each of them, have liberty within 14 days to apply to the Court for any special or different order as to costs.

Catchwords:

ADMINISTRATIVE LAW – Medical reassessment under Motor Accidents Compensation Act 1999 – Review panel decision on causation of plaintiff’s shoulder injury – whether review panel applied wrong test of causation – whether review panel failed to consider relevant material – whether review panel denied plaintiff procedural fairness

Legislation Cited:

Evidence Act 1995
Motor Accidents Compensation Act 1999
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2011] NSWSC 1296
Allianz Australian Insurance Ltd v Ward [2009] NSWCA 264
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239
Australian Broadcasting Tribunal v Bond [1990] HCA 3; (1990) 170 CLR 321
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
De Gelder v Rodger (No 2) [2014] NSWSC 1355
Edwards v Santos Limited [2011] HCA 8; (2011) 242 CLR 421
Eshetu v Minister of Immigration and Multicultural Affairs (1997) 71 FCR 300
Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Mason v Demasi [2009] NSWCA 227
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister of Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
NRMA Insurance Limited v Ainsworth [2011] NSWSC 344
Owen v Motor Accidents Authority of NSW [2012] NSWSC 650
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

Category:

Principal judgment

Parties:

David John Francica (Plaintiff)
Allianz Australia Insurance Limited (First Defendant)
Motor Accidents Authority of NSW (Second Defendant)
Dr T Rosenthal, Dr P Burke and Dr C Oates (in their capacity as a Medical Review Panel on behalf of the Second Defendant) (Third Defendant)

Representation:

Counsel:
Mr A C Canceri (Plaintiff)
Mr K P Rewell (First Defendant)

  Solicitors:
Mark Capolupo CMC Lawyers (Plaintiff
Sparke Helmore Lawyers (First Defendant)
Crown Solicitor (Second and Third Defendant)

File Number(s):

2014/00063242

Publication restriction:

None

Judgment

1. HIS HONOUR: By amended summons filed 3 December 2014, the plaintiff, David John Francica, seeks orders in the nature of certiorari quashing (or, alternatively, a declaration setting aside or declaring invalid) the certificate and reasons dated 2 December 2013 (and the replacement certificate and reasons dated 6 February 2014) of the Medical Review Panel (hereinafter, “the Panel”) of the Motor Accidents Authority (hereinafter, “the MAA”), made under ss 61 and 63 of the Motor Accidents Compensation Act 1999 (hereinafter, “the Act”).

2. The amended summons also seeks ancillary orders, being orders in the nature of a declaration that the certificates and reasons dated 2 December 2013 and 6 February 2014 are affected by an error of law on the face of the record and/or by jurisdictional error, as well as orders in the nature of mandamus that the matter be remitted to a differently constituted Panel for determination in accordance with law.

3. The main issue in these proceedings is whether the Panel’s determination that the plaintiff’s shoulder injury was not caused by the motor accident is affected by an error of law or jurisdictional error.

Background

4. The facts giving rise to the motor accident are irrelevant except as to background. On 1 September 2006, the plaintiff was involved in a motor accident (hereinafter, “the relevant accident”) in Kensington from which he suffered various injuries.

5. The first defendant, Allianz Australia Insurance Limited (hereinafter, “Allianz”), is the insurer of the vehicle at fault and has accepted liability for the relevant accident.

6. A dispute arose between the plaintiff and Allianz over the injuries suffered by the plaintiff as a result of the relevant accident and the matter was referred to the Medical Assessment Service under Part 3.4 of the Act.

7. On 30 October 2014, a single assessor, Dr David Maxwell, conducted the first medical assessment of the plaintiff’s injuries. Further assessments were conducted by Dr Perla on 21 April 2010 and Dr Bodel on 9 January 2012.

8. Dr Bodel’s determination was challenged by Allianz and quashed by the orders of Hall J on 12 December 2012. Hall J also ordered that the matter be remitted to the Medical Assessment Service for further assessment of the plaintiff’s injuries.

9. On 6 May 2013, Dr Wilding conducted another assessment. Dr Wilding determined that the plaintiff suffered injuries to his cervical and lumbar spine and to his right and left shoulders. Dr Wilding assessed the degree of the permanent impairment to the plaintiff to be greater than 10 per cent.

10. Allianz sought to appeal the assessment by Dr Wilding to a review panel. The Proper Officer granted that application pursuant to s 63 of the Act.

11. On 2 December 2013, the Panel, comprising Drs Rosenthal, Burke and Oates, determined that the plaintiff had suffered injuries to his cervical and lumbar spine, but not to his right and left shoulders. They assessed the plaintiff’s degree of permanent impairment as 5 per cent.

12. As a consequence of his degree of permanent impairment being assessed as less than 10 per cent, pursuant to s 131 of the Act, the plaintiff cannot be awarded damages for non-economic loss arising from the relevant accident. The plaintiff commenced these proceedings seeking judicial review of the Panel’s decision.

The Nature of Certorari

13. It is necessary to comment briefly on the power of this Court to issue orders in the nature of certiorari. I refer, without reiterating, to some comments in other judgments, particularly NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 at [16]-[21] and Allianz Australia Insurance Ltd v Cervantes [2011] NSWSC 1296 at [30]-[34].

14. The jurisdiction to issue certiorari is an inherent power of the Court. There is a statutory power to issue orders in the nature of certiorari contained in s 69 of the Supreme Court Act 1970 (NSW).

15. An order in the nature of certiorari quashes an administrative determination if that determination were made on the basis of a jurisdictional error or an error of law appearing on the face of the record: see s 69 of the Supreme Court Act. This statutory provision may have the effect of broadening the reach of the Court’s inherent power, because at common law the face of the record did not necessarily include reasons for judgment: see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163.

16. Judicial review is not a merits review. As Brennan J stated in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at [35]-[36]:

"[35] The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and, subject to legal control, for the repository alone.

[36] The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and extension of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.”

17. I also refer to the apposite passage in the judgment of Hayne J in Edwards v Santos Limited [2011] HCA 8; (2011) 242 CLR 421 at [17]-[18], without reciting it.

18. It is sufficient for present purposes to reiterate the distinction between an order in the nature of certiorari and a review or appeal on merits. During an application for judicial review, a court will not determine the merits of a decision and is unable to exercise the jurisdiction of the decision maker.

The Relevant Statutory Provisions

19. The purpose and general structure of the Act must also be briefly recounted, as it is within this statutory context that the issues in this case are considered. A number of judgments of this Court have dealt with the Act and I adopt the comments in my judgment in NRMA Insurance Limited v Ainsworth at [22] and following. I also, with respect, adopt the comments made by Young JA in Allianz Australian Insurance Ltd v Ward [2009] NSWCA 264 at [48]-[50]:

"[48] The 'MAC Act' clearly sets up a regime whereby there is to be a relatively informal assessment of damages by an administrative official. This displaces the former system of trial by judge or judge and jury with witnesses called and cross-examined. The new system is doubtless much cheaper. However, one would not expect that its accuracy would be as great as the result obtained through what is now regarded as a 'Rolls Royce' procedure.

[49] The legislature doubtless considered that errors could emerge out of the new procedure. However, it provided that there would be a review for obvious error by the Principal Claims Assessor, but only for obvious error and provided no appeal to the insurer.


[50] The aim of the legislature was to see that claimants were assessed quickly and cheaply and paid their entitlements promptly."

20. Under the Act, a medical assessment is conducted when there is a dispute between the claimant and insurer about, among other things, whether the degree of permanent impairment is greater than 10 per cent: s 58(1)(d) of the Act.

21. Upon making a determination, a medical assessor will issue a certificate, which is conclusive evidence of the matters contained in that certificate: s 61(2) of the Act. A medical assessor must also include reasons for the findings made in relation to the matters contained in the certificate: s 61(9) of the Act.

22. A party to the dispute may apply to have that determination reviewed by a panel, made up of three medical assessors. A medical assessment carried out by a panel is a new assessment, rather than a review of the original assessment: s 63(3A) of the Act.

23. Pursuant to s 44 of the Act, the MAA issued the Permanent Impairment Guidelines (hereinafter, “the Guidelines”) to assist medical assessors in their determinations. Relevant to these proceedings are clauses 1.7-1.9, which instruct assessors on how to determine whether an injury was caused by the accident.

24. Clause 1.7 states that “[a] determination as to whether the claimant’s symptoms and impairment are related to the accident in question is… implied in all such assessments”. The clause then directs medical assessors to the principles of causation as set out in the AMA 4 Guides and in the common law.

25. Clauses 1.8 and 1.9 summarise the AMA 4 Guides and, in some respects, the common law principles. As the Panel’s application of clauses 1.8 and 1.9 is relevant to these proceedings, it is necessary to set out them out in full:

“1.8 Causation is defined in the Glossary at page 316 of the AMA 4 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.

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

(b)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.

1.9 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 inapplicable in circumstances where there are multiple contributing causes.”

The Panel’s Decision

26. The Panel first issued their certificate, including reasons, on 2 December 2014. These reasons included a list of documents considered by the Panel during their review.

27. In their reasons, the Panel correctly identified the dispute between the plaintiff and Allianz as relating to the plaintiff’s degree of permanent impairment and the “causation of [the plaintiff’s] right and left shoulder conditions”.

28. The Panel also noted the additional evidence that they had requested and reviewed in undertaking their assessment, namely, the clinical notes and records of Dr Collins, the plaintiff’s GP, and their own clinical examination of the plaintiff.

The Clinical Examination

29. The clinical examination was conducted on 18 November 2013 by Panel members Dr Rosenthal and Dr Burke.

30. The Panel members asked the plaintiff about the circumstances of and injuries suffered in various other motor accidents that had occurred prior to the relevant accident. As a result of those prior accidents, the plaintiff stated that he had suffered pain principally in his back and neck, but did not report experiencing any pain in his shoulders.

31. The plaintiff also described the circumstances of and injuries incurred in the relevant accident. He stated that he had suffered pain in various parts of the body, including “between the shoulder blades”.

32. The plaintiff told the Panel members that Dr Collins had said many times following the accident that the pain in the plaintiff’s shoulders originated in his neck. The plaintiff had also told his solicitor about the pain in his shoulders and, at some later point, his solicitor had insisted that Dr Collins obtain imaging studies of the plaintiff’s shoulders. The plaintiff stated that these imaging studies showed abnormalities.

33. During the clinical examination, the Panel members also asked the plaintiff about the reports by Dr Teychenné between 1985 and 2003 (i.e. a period prior to the relevant accident) that, in the Panel’s opinion, referred to symptoms in his left shoulder and in both shoulders. The plaintiff responded that there had been no serious symptoms in either shoulder before the relevant accident.

34. The plaintiff also told the Panel members that, following the relevant accident, he had taken various tablets, been treated at a pain clinic (which he had also attended before the accident in question) and underwent an operation on his right shoulder in 2010. The plaintiff had continued to work as a security guard up until 2009.

35. The Panel members also conducted a physical assessment of the plaintiff. They reported that the plaintiff’s “[s]houlder contours were muscular and equal” and tested various movements in the shoulder area, noting that “[a]ll upper limb movements were carried out in a jerky fashion, allegedly due to pain”.

36. At the end of the physical assessment, the Panel members informed the plaintiff that his neck and shoulder movements were inconsistent and that they would be unable to give him an impairment figure. The plaintiff responded that the movements were inconsistent because of pain. A second measurement of the plaintiff’s shoulder movements again resulted in inconsistent results.

The Panel’s Reasons

37. The Panel found that the soft tissue in the plaintiff’s cervical and lumber spine had been injured following the accident on 1 September 2006 and that the degree of permanent impairment in his spine was 5 per cent.

38. The Panel found that the plaintiff’s shoulder injuries were not caused by the relevant accident and, as a consequence, did not include them in calculating the degree of permanent impairment. Therefore, the plaintiff’s total degree of permanent impairment was 5 per cent.

39. A critical passage in the Panel’s reasoning in relation to the plaintiff’s shoulder injuries is best set out in full:

“The Panel acknowledged that there was reference to “shoulder” in the notes of Dr Collins dated 26th September, 2006. However, there was no further reference to shoulder symptoms until an MRI scan dated 10th October 2008, two years after the subject accident. The Panel noted a long history of shoulder symptoms prior to the subject accident. Multiple medical examinations and reports following the accident, including those by the pain specialists, did not mention shoulder injuries. A report by Dr Maniam, dated 9th September 2008, indicated that the shoulders were normal. The Panel considered that there would have been repeated references to shoulder symptoms and injuries over the ensuing months and years, had there been any significant shoulder injuries in the accident. In view of the lack of reliability with regard to the injured person’s history of shoulder symptoms, the Panel felt obliged to rely upon the available written record. The Panel decided that there was no causal relationship between the subject accident and shoulder injuries.The GP’s notes did indicate some shoulder symptoms immediately after the MVA, but there was no further reference to a shoulder injury for the next two years. The panel opined that the abnormalities seen on the MRI of the shoulders (2 years after the MVA) did not relate to any trauma from the motor vehicle accident.”

Terms of the summons

40. The proceedings were commenced by summons: r 59.3 of the Uniform Civil Procedure Rules (UCPR) 2005. Pursuant to r 59.4 of the UCPR, the content of that summons must state the orders sought, the identity of the decision maker, the terms of the decision to be reviewed and whether relief is sought in whole or in part. More importantly, the summons must state “with specificity, the grounds on which the relief is sought”. The grounds of judicial review contained in the summons are an excursus that is lacking specificity and are repetitive.

41. There are six grounds for judicial review, most of which restate in different form three issues: first, the application of a wrong test for causation of the shoulder injury by reliance on the lack of a history of complaint of shoulder injuries or symptoms (hereinafter, “shoulder symptoms”); secondly, the failure to take into account relevant material, namely, the records supposedly showing a history of complaint of shoulder symptoms; and thirdly, a denial of “natural justice” in failing to raise with the plaintiff the allegation of the lack of a history of shoulder symptoms. Further, the plaintiff submitted that there was jurisdictional error in the finding that the plaintiff had a history of shoulder injuries prior to the relevant accident (albeit, that this jurisdictional error does not seem to have been raised as a ground in the summons).

40. A failure to specify, precisely, the grounds upon which judicial review is sought may lead to the inference that the plaintiff is seeking to have the Court embark upon a merits review, rather than confine itself to the determination of jurisdictional error, errors of law in the decision below, and/or errors in the process adopted.

41. Briefly stated, there are essentially two complaints advanced by the plaintiff. First, the Panel took the view that there was an absence of complaint about shoulder symptoms, which absence was decisive on the causation issue. Secondly, the Panel took the view that the reference by Dr Teychenné to an injury in the “left and right supraclavicular region and down both arms into all fingers” evidences a prior injury to the shoulders (which injury was denied by the plaintiff) and determined on that basis that the symptoms suffered by the plaintiff in his shoulders did not arise from the relevant accident.

42. Of course, the Panel does not express itself in the terms above. If it were to have done so, the logical inconsistency between the two findings may have been manifest to the Panel. On the one hand, the Panel has held that there was no shoulder injury because of the absence of recorded symptoms in the plaintiff’s shoulder. On the other hand, it has held that there was a pre-existing shoulder injury, as a result of the report of Dr Teychenné, which, presumably, subsisted from a time before the relevant accident until 2010 when the plaintiff’s shoulder operation occurred.

43. Of course, the two findings may not be logically inconsistent. It is possible that there was a pre-existing shoulder injury that had healed in a way that resulted in there being no further symptoms. However, in those circumstances, there would be no relevance in the pre-existing shoulder injury to the Panel’s determination and one would expect that its healing would have been the subject of discussion by the Panel. Moreover, there would, in such circumstances, have been no need for the operation after the relevant accident.

44. The plaintiff does not express its case in the foregoing manner. Rather, the plaintiff seeks to rely upon error of law and jurisdictional error, being the use of the wrong test, the asking of the wrong question, or the taking into account of an irrelevant consideration on the causation issue. If there were error in the Panel’s determination, it is not clear that the error is of a kind raised as a ground of judicial review by the plaintiff. Moreover, the plaintiff does not raise error of fact and, more relevantly, does not expressly raise an error of law in the finding of fact. Whether the grounds of judicial review raised by the plaintiff encompass error of the kind just described, or whether error of the kind described above actually arises, are matters that need to be dealt with after the detail of each ground is considered.

Submissions and Preliminary Comments

Ground 1

47. The plaintiff’s first ground of review is that the Panel applied the wrong test of causation and thereby committed an error of law or jurisdictional error.

48. The plaintiff submits that the Panel did not apply the test contained in clause 1.9 of the Guidelines, namely, whether the plaintiff’s shoulder injury was caused or materially contributed to by the motor accident. The plaintiff further submits that by concentrating on absence of repeated references to shoulder symptoms in Dr Collins’ clinical records, the Panel applied the wrong test for causation.

49. Allianz submits in response that there is nothing in the Panel’s reasons to suggest that they did not apply the test contained in clause 1.9 of the Guidelines. Furthermore, Allianz submits that the absence of repeated references to the plaintiff’s shoulder symptoms in Dr Collins’ clinical record was only one factor considered by the Panel. Allianz argues that the Panel also considered the reports by other medical experts, the reasons of previous medical assessors, the plaintiff’s complaints of shoulder pain made before the relevant accidents, and the plaintiff’s conduct during the clinical examination.

50. I accept that when the passage in the Panel’s reasons on the causation of the plaintiff’s shoulder injury is read in its entirety, it is clear that the Panel concentrated on the lack of repeated references to the plaintiff’s shoulder symptoms. I shall return to this issue later in these reasons for judgment.

Ground 2

51. In relation to the second ground of appeal, the plaintiff submits that the Panel committed a jurisdictional error by asking itself the wrong question or identifying a wrong issue on the matter of causation of the shoulder injury. In particular, the plaintiff argues that the Panel asked itself:

“Were there repeated references to shoulder symptoms and injuries in the clinical records of Dr Collins over the ensuing months and years after the relevant motor vehicle accident?”

52. The plaintiff also submits that it was wrong for the Panel to treat the absence of repeated references to the plaintiff’s shoulder symptoms as decisive on the causation issue (see ground 3).

53. In support of these submissions, the plaintiff relies on the judgment of Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52], which was applied by Hamill J in De Gelder v Rodger (No 2) [2014] NSWSC 1355 at [65]-[68]. Campbell J held that the review panel had wrongly treated the absence of contemporaneous documentation as decisive on the issue of causation:

“[52] Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumber spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA at [35]. The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the Review Panel: Container Terminals Australia v. Huseyin [2008] NSWCA 320 at [8]; Mason v. Demasi [2009] NSWCA 227 at [2] and Gulic v. O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s.75A Supreme Court Act 1970. But they are apposite to the exercise by the Review Panel of its powers under s.63 of the Act, especially subs. (3A). In my judgment the identification of this wrong issue was jurisdictional error.”

54. Allianz again submits that the Panel did not only consider whether there were repeated references in Dr Collins’ clinical record to the plaintiff’s shoulder symptoms, but took into account a range of matters that have been set out in relation to the first appeal ground (see [48] above).

55. Allianz also argues, and the plaintiff accepts, that the question of whether there were repeated references to the plaintiff’s shoulder symptoms was a relevant question in determining the causation issue.

Ground 3

56. The third ground of review is that the Panel erred in law by treating the absence of repeated references in Dr Collins’ clinical record to the plaintiff’s shoulder symptoms as decisive. In support of this submission, the plaintiff relies on the passage from Owen v Motor Accidents Authority of NSW extracted above.

57. In response, Allianz again submits that the Panel considered the absence of repeated references to the plaintiff’s shoulder alongside other factors.

58. Numerous cases have emphasised the caution that must be exercised when considering medical histories taken by doctors or treating physicians: see Owen v Motor Accidents Authority of NSW at [52]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; De Gelder v Rodger (No 2) at [65]-[68]; Mason v Demasi [2009] NSWCA 227 at [2]; and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8]. Such caution is necessary because doctors are often focused on treating a particular problem and therefore their notes may not accurately record the history of an injury incurred in an accident.

59. As I stated in relation to the first ground, I accept the plaintiff’s submission that the Panel focused on the lack of repeated references to the plaintiff’s shoulder symptoms in Dr Collins’ clinical record. This focus is problematic. It cannot be assumed that Dr Collins and the other treating doctors recorded every complaint made by the plaintiff over a two year period.

Ground 4

60. The plaintiff’s fourth ground of appeal is that the Panel committed a jurisdictional error by erroneously finding that the clinical record of Dr Collins did not contain a reference to the plaintiff’s shoulder injury between 26 September 2006 and 10 October 2008.

61. The plaintiff draws the Court’s attention to two documents in Dr Collins’ clinical record, which refer to the plaintiff’s shoulder injury within that time period. The first is a note by Dr Collins on 24 October 2006 that the plaintiff is suffering “neck pain with shoulder pain”. The second is a report by Dr Hui dated 4 March 2008 that notes that the plaintiff had “widespread tenderness over the musculoskeletal region of the shoulders”.

62. Allianz accepts that the Panel omitted to refer to Dr Collins’ note dated 24 October 2006, but submits that this omission is “immaterial” since the Panel’s findings were accurate, namely its finding that, although there was some complaint of shoulder symptoms immediately after the relevant accident, there was an absence of complaint during the two years prior to the MRI.

Ground 5

63. The fifth ground of review is that the Panel committed jurisdictional error by failing to consider relevant material, specifically, the notes of Dr Collins dated 1 September 2006 and 24 October 2006 and the report of Dr Hui dated 4 March 2008. The note dated 1 September 2006, the date of the accident, indicates that the plaintiff was suffering pain in the “back/neck/shoulders”.

64. The plaintiff submits that, given the significance which the Panel attributed to the history of complaint of shoulder symptoms, had the Panel considered the abovementioned documents they would not have failed to refer to them in their reasons.

65. In relation to Dr Collin’s note dated 24 October 2006, Allianz again submits that note was immaterial for the reasons described in the fourth ground of appeal (see [61]).

66. In relation to Dr Collins’ note dated 1 September 2006, Allianz submits that in its reasons the Panel acknowledged that the plaintiff had experienced some shoulder symptoms immediately after the accident.

67. In relation to Dr Hui’s report dated 4 March 2008, Allianz submits that this report does not, in fact, refer to a shoulder injury, but only to symptoms in the plaintiff’s shoulders.

68. In my view, the Panel’s failure to consider the notes of Dr Collins was significant. The first note was made on the day of the accident and the second was made within two months of the accident. Moreover, both notes refer to symptoms in the plaintiff’s shoulder and therefore corroborate the plaintiff’s assertion that the accident was the cause of his shoulder injury.

Ground 6

69. The sixth ground of appeal concerns the plaintiff’s right to procedural fairness. The plaintiff submits that the Panel denied him procedural fairness by failing to give him the opportunity to address the allegation that there would have been repeated references to his shoulder symptoms following the relevant accident if his shoulder injury were sustained in that accident.

70. Allianz submits that the Panel complied with their obligations to afford procedural fairness to the plaintiff, since during the clinical examination the Panel members notified the plaintiff that his neck and shoulder movements were inconsistent and discussed with the plaintiff his history of complaint regarding his shoulder injury.

71. Both parties rely on the judgment of Leeming JA in Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214, in which his Honour held that the content of the obligation to accord procedural fairness is one of “practical justice”.

72. In Frost v Kourouche at [40], Leeming JA held, relying on the judgments of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550, that the basic obligation to accord procedural fairness is to draw a party’s attention to a critical fact or issue and, while some statutes may increase a decision maker’s obligation, that:

“There is nothing in the [Motor Accidents Compensation] Act to support any such heightened obligation. To the contrary, the self-evident purpose of non-curial assessment of disputes as to permanent impairment was to reduce the role of courts in respect of claims to which assessment applied. There is no reason for any greater content to the obligation to accord procedural fairness to be discerned in a non-curial procedure. That conclusion is wholly consistent with what was said, of the obligation to afford procedural fairness in a substantially similar regime, in Wingfoot at [47].”

73. As stated above, the purpose of a medical assessor or review panel is to resolve disputes on medical issues in a non-curial manner. In this matter, the Panel notified the plaintiff of the critical issues during the clinical examination and did not deny the plaintiff procedural fairness.

Ground 7

74. The seventh and final ground of appeal is that the Panel committed a jurisdictional error by erroneously finding that the plaintiff had a history of shoulder symptoms prior to the relevant accident.

75. As recited earlier in these reasons, the Panel was of opinion that the reports of Dr Teychenné between 1985 and 2003 referred to symptoms in the plaintiff’s shoulders.

76. The plaintiff submits that the reference to “supraclavicular region” in Dr Teychenné’s reports does not refer the plaintiff’s shoulders, but to the plaintiff’s longstanding injury to his back and neck. Allianz submits that “supraclavicular region” does, in fact, refer to the plaintiff’s shoulders.

77. The main contention between the parties is therefore the meaning of the term “supraclavicular region”. It is evident from the Panel’s reasons that they interpreted Dr Teychenné’s reference to the supraclavicular region as reference to an area including the plaintiff’s shoulders.

78. As the Panel is a decision making body made up of medical experts, this Court must give great weight to their interpretation of the term “supraclavicular region”. However, I shall return to this issue later in these reasons for judgment.

Consideration and Conclusion

79. As stated earlier, the function of the Court in exercising its powers on judicial review is not to undertake a merits review. The function of the Court is to review an administrative decision for jurisdictional error or error of law, which, if error were found, may lead to the quashing of that decision. The fact, if it be the fact, that an administrative decision is wrong or unjust to a party is, of itself, irrelevant to the determination of a judicial review application and to the exercise in which the Court is currently embarked.

80. As a preliminary consideration, throughout their submissions, the parties seemed to confuse the difference between “relevant material” and a “relevant consideration”. There is a fundamental difference between, on the one hand, relevant material as defined by s 55 of the Evidence Act 1995 (and previously considered by the common law) as material that, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings and, on the other hand, a relevant consideration the decision maker was obliged to take into account: R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39]-40] per Mason J.

81. Conversely, the ground of judicial review in which a decision maker takes into account an “irrelevant consideration” is not to be equated with a reference to material that has no probative value. A consideration is irrelevant in this sense only if the decision maker is prohibited from taking it into account: Peko-Wallsend at [40]; Ballantyne v WorkCover Authorityof NSW [2007] NSWCA 239 at [113] per Basten JA.

82. Nevertheless, in order to determine the grounds of review in this case, it is necessary to analyse precisely the task upon which the Panel was embarked and the manner in which it resolved it.

83. The Panel, as earlier stated, correctly identified that its ultimate task was to determine whether there was a shoulder injury caused by the relevant motor vehicle accident.

84. However, for reasons best known to the Panel, it did not state the obvious, namely, that Mr Francica, the plaintiff, asserted in evidence and during the clinical examination that he injured his shoulder in the relevant accident and that the pain in his shoulder persisted from the time of the relevant accident at least through to 2008.

85. The Panel must have disbelieved Mr Francica. While they did not explicitly make mention of their disbelief, they did state in their reasons that “[i]n view of the lack of reliability with regard to the injured person’s history of shoulder symptoms, the Panel felt obliged to rely upon the available written record”.

86. There appears to be four bases for the Panel’s disbelief of the plaintiff. First, the Panel disbelieve the plaintiff on the basis of the lack of notes of shoulder symptoms from the initial examination by Dr Collins in 2006 until the examination and MRI in 2008. The Panel’s view, to which I have previously referred, was that “there would have been repeated reference to shoulder symptoms and injuries over the ensuing months and years, had there been any significant shoulder injuries in the accident”.

87. The difficulty with the Panel’s approach is that it assumes that one or more doctors would have noted every time or any time that Mr Francica complained about a sore shoulder. The lack of notes is not inconsistent with continued pain. As previously stated, courts have repeatedly warned against reliance on the absence of a reference in doctors’ notes as doctors are concerned primarily with the treatment of an injury.

88. Secondly, two of the Panel’s members examined Mr Francica and noted an inconsistency in the results, which inconsistency was raised with Mr Francica who responded that the inconsistency was caused by pain. The Panel does not state in its reasons that the response of Mr Francica was an inadequate or unbelievable response, or one that does not accord with their medical experience.

89. Thirdly, the Panel opined “that the abnormalities seen on the MRI [in 2008, two years after the relevant accident] did not relate to any trauma from the motor vehicle accident”. However, the Panel had no evidence of any other intervening injury or circumstance that would give rise to the abnormalities seen in the MRI.

90. Lastly, the Panel relied upon the report of Dr Teychenné as evidence of a pre-existing shoulder injury. The possibility of a pre-existing shoulder injury was expressly put to Mr Francica during the clinical examination and denied.

91. While, as earlier stated, great weight must be given to the view of the Panel as to the proper construction of the report of Dr Teychenné, in my opinion, the Panel has adopted an unduly narrow meaning of the term “supraclavicular region” used in that report. Dr Teychenné‘s report refers to a “supraclavicular region” injury and pain down both arms. The supraclavicular region is an area above the clavicle or collarbone and may include the area from the first rib upwards and the lower and back areas of the neck. It may be that Dr Teychenné’s reference to the supraclavicular region was a reference to the shoulders, but it was not necessarily such a reference. Further, it seems Dr Teychenné took the view that the injury was to the neck with referred pain radiating down the arms to the fingers; Dr Teychenné does not seem to suggest that the “injury” was to the shoulders, in which case, absent an intervening cause, the only cause for “shoulder abnormalities” in 2008 is the relevant accident.

79. In the absence of specificity as to which part of the supraclavicular region Dr Teychenné was referring, the report (which was written before 2006) is not clear enough to say that Mr Francica’s denial of shoulder symptoms before 2006 was incredible, unreliable or even wrong.

80. Moreover, Mr Francica’s assertion that his shoulder was injured in the relevant accident (and not before that) depends on Mr Francica’s understanding of “shoulders”, not Dr Teychenné’s.

81. Meanwhile, Dr Collin’s notes dated 1 September 2006 and 24 October 2006 (hereinafter, “the contemporaneous notes”) corroborates the evidence of Mr Francica that there was a shoulder injury at or immediately after the relevant accident. The 2008 MRI also confirms the existence of a shoulder injury. Of course, it is possible that there was an intervening event that caused the abnormalities shown on the MRI. But there is no evidence of any such event.

82. As a consequence, there is no evidence to suggest that the abnormalities shown on the MRI were caused by anything other than the relevant accident. Further, there is no evidence upon which the Panel could have based a conclusion that Dr Collin’s contemporaneous notes, written immediately after the relevant accident, suggested anything other than a shoulder injury arising from the relevant accident.

83. In those circumstances, the lack of references in the clinical records between 2006 and 2008 to symptoms in the plaintiff’s shoulder is more likely to be the result of the concentration by the plaintiff’s various medical practitioners on other injuries which, in their opinion, were the cause of the pain in the shoulders. As previously stated, Dr Teychenné’s report, written prior to the date of relevant accident, does not, because of its lack of specificity as to the region of the pain, allow the Panel to conclude that there was a pre-existing shoulder injury, contrary to the evidence of Mr Francica.

84. It is difficult to identify precisely the error committed by the Panel. If it were an error of fact, it is impermissible for this Court to intervene and quash the order. If, on the other hand, the error of fact, namely, the cause of the shoulder injury, has been derived by answering the wrong question, by a process which involves an error of law, or a denial of procedural fairness, it is permissible for the Court to intervene.

85. If a decision maker mistakes the facts or comes to a wrong conclusion on fact, there may be an inappropriate exercise of discretion, but a mistake of fact, of itself, does not give rise to grounds for judicial review: Australian Broadcasting Tribunal v Bond. For a finding of fact that is incorrect to give rise to reviewable error, the finding of fact must be jurisdictional: see, inter alia, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1). Nevertheless, incorrect findings of fact may give rise, in exceptional circumstances, to perversity or error of law or be based upon no evidence: see Eshetu v Minister of Immigration and Multicultural Affairs.

86. The failure of the Panel to refer to the evidence of Mr Francica and expressly reject it is significant. It may be said (and it was submitted at the hearing by the first defendant) that the Panel’s consideration of Mr Francica’s evidence is implicit in the whole of the report and the whole of the report is a consideration of it.

87. Nevertheless, the manner in which the Panel has focused on the clinical notes suggests that they were answering the wrong question. First, the Panel did not pay any attention to the burden of proof, that is, what was the more probable cause of the plaintiff’s shoulder injury. Secondly, the Panel’s concentration on the lack of notes is used as evidence, of itself, of no symptoms and no injury without any expressed view that it was essentially evidence against Mr Francica’s credit as a witness. Thirdly, the Panel did not pay any attention to the distinction between evidence that there were no shoulder symptoms and no evidence in the notes of shoulder symptoms.

88. By the time the MRI results were known, there can be no doubt that Mr Francica had a shoulder injury. The only question for the Panel was what had caused that shoulder injury. To elevate the lack of notes by doctors (who were not primarily concerned with the plaintiff’s shoulder at the time the notes were written) to the point where it negates Dr Collins’ contemporaneous notes of the plaintiff’s shoulder symptoms, the MRI results and the lack of evidence of an intervening cause is to focus on the wrong question.

89. The only result which reconciles all of the evidence before the Panel is a result which confines the meaning of supraclavicular in the report of Dr Teychenné to areas other than the shoulder and which accepts that the shoulder injury was caused by the relevant accident, the abnormalities of which injury show up in the MRI results. The failure of the doctors to note the soreness in the shoulders, in the circumstances described in this case, is not surprising and does not negate the evidence of Mr Francica.

90. There are two significant ways in which reviewable error has occurred. First, as the plaintiff argued in ground 2, the Panel has answered the wrong question. It has asked itself why there are no notes of the plaintiff’s shoulder symptoms, without regard to the evidence of Mr Francica, Dr Collins’ contemporaneous notes, the MRI in 2008 and the lack of evidence of any other cause. I shall return to this error at the end of these reasons.

91. Secondly, the Panel has not paid significant attention to the MRI results. The Panel’s opinion that the abnormalities in the shoulder were caused by an event other than the relevant accident is pure conjecture. If the shoulder injury is found to be the same injury referred to by Dr Teychenné, that finding is inconsistent with the Panel’s finding of a lack of shoulder symptoms between 2006 and 2008. More importantly, the evidence of a pre-existing injury is not probative of a lack of causation (or aggravation), particularly given the ambiguity in the known details of that pre-existing injury.

92. In my view, the Panel has failed fundamentally to determine the issues before it on the balance of probabilities. It has conjectured, because of the inconsistent measurements during the clinical examination, that it was possible that Mr Francica did not have the symptoms following the relevant accident and viewed the evidence in light of that theory. In so doing, it has accepted a theory based on a lack of evidence over the testimony of Mr Francica, the contemporaneous notes of Dr Collins and the MRI results.

93. In my opinion, the Panel has come to a factual conclusion that is infected by an error of law. While there are a number of categories of error of law into which the foregoing may fit, the Panel’s errors of law are the failure to apply a burden of proof based on the balance of probabilities; asking the wrong question; and coming to a conclusion that was not open on the evidence before it by failing to give adequate weight to relevant factors and giving excessive weight to irrelevant factors.

94. However, I do not consider that there has been a lack of procedural fairness. Each of the issues addressed by the Panel have, albeit somewhat obliquely, been drawn to the attention of Mr Francica.

95. As stated above, it is difficult to categorise the error committed by the Panel. It may be one of the rare cases that comes within the comments of the High Court in the Minister of Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. The High Court was concerned with the judgment of the Full Court of Australia, which granted judicial review of the Migration Review Tribunal for failing to adjourn a hearing pending the finalisation of a skills assessment report. In accordance with the plurality of the Federal Court, the High Court, in dealing with the review of a discretionary exercise, held:

“[64] A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of "Wednesbury unreasonableness" in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/20002, McHugh and Gummow JJ instanced the 1891 decision of Sharp v Wakefield. In Re Refugee Review Tribunal; Ex parte Aala, Gaudron and Gummow JJ said that the requirement of reasonableness represents the development of legal thought which began before federation and accommodates s 75(v) to that development.

…

[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

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[72] The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

…

[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” (per Hayne, Kiefel and Bell JJ).

109. As I outlined earlier in relation to the second ground of appeal, the plaintiff submits that the Panel asked itself the following question:

“Were there repeated references to shoulder symptoms and injuries in the clinical records of Dr Collins over the ensuing months and years after the accident?”

110. The Panel was capable of asking that question and answering it only if it formed part of the statutory question that the Panel was required to ask and answer. In concentrating its findings on the basis of repeated references in the clinical records of Dr Collins to shoulder symptoms, the Panel gave a predominance and significance to the lack of notes, which distracted it from the question it was required to answer. In doing so, the Panel either applied the wrong test of causation, as submitted by the plaintiff, or it came to a conclusion which, on the evidence before the Panel, lacks “an evident and intelligible justification”.

111. Whatever be the category of error of law capable of remedy on judicial review, it is an error of law that has occasioned a “manifestly unreasonable” result.

112. That is not to say that another panel considering this matter could also come to the view that the shoulder injury was not caused by the relevant accident, but that view would be required to be formed weighing all of the evidence and forming an opinion (either express or necessarily implied) as to its veracity and probative value.

113. In my view, the Panel has committed an error of law and an error of jurisdiction, namely, the failure “to give adequate weight to relevant factors of great importance” and the giving of “excessive weight to an irrelevant factor of no importance”, such that the orders in the summons ought to be granted.

114. The Court makes the following orders:

1. A declaration that the Review Panel Certificate (including reasons) of the Motor Accidents Authority issued on 2 December 2013 in relation to the plaintiff and the subsequent Replacement Review Panel Certificate (including reasons) issued on 6 February 2014 is affected by error of law on the face of the record and by jurisdictional error;

2. An order in the nature of certiorari setting aside the aforesaid Review Panel Certificate issued on 2 December 2013;

3. An order in the nature of certiorari setting aside the aforesaid Replacement Review Panel Certificate issued on 6 February 2014;

4. An order in the nature of mandamus that the Motor Accident Authority deal with the review in accordance with law;

5. The first defendant shall pay the plaintiff’s costs of and incidental to these proceedings;

6. The parties, and each of them, have liberty within 14 days to apply to the Court for any special or different order as to costs.

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Decision last updated: 13 August 2015