Doyle v QBE Insurance (Australia) Limited

[2021] NSWSC 54

Supreme Court

New South Wales

Medium Neutral Citation:

Doyle v QBE Insurance (Australia) Limited [2021] NSWSC 54

Hearing dates:

2 October 2020

Date of orders:

8 February 2021

Decision date:

08 February 2021

Jurisdiction:

Common Law - Administrative Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

(1) The plaintiff’s summons filed 17 December 2019 is dismissed.

(2) The plaintiff is to pay the first defendant’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – State Insurance Regulatory Authority – Motor Accidents Compensation Act 1999 (NSW) – Review of decisions of the Medical Assessor and Proper Officer – Denial of procedural fairness – Findings unsupported by evidence – Failure to provide adequate reasons – Review dismissed

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 57, 58, 60 to 63, 131 and 133

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

AAI Limited t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229

Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950

Cahill v Insurance Australia Limited [2009] NSWSC 564

Collector of Customs v Pozzolianic [1993] FCA 322; 43 FCR 280

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148

Dunbar v Allianz Australia Limited [2015] NSWSC 119

Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289; [2006] FCA 328

Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848

Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

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

Minister for Immigration and Citizenship v SZGUR (2001) 241 CLR 594; (2011) 273 ALR 223

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 143; 252 CLR 480

Category:

Principal judgment

Parties:

Warren Paul Doyle (Plaintiff)
QBE Insurance (Australia) Limited (First Defendant)
Donald Faithfull (Second Defendant)
Jeremy Lum (Third Defendant)
State Insurance Regulatory Authority (Fourth Defendant)

Representation:

Counsel:
J Turnbull SC (Plaintiff)
W Fitzsimmons SC (First Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
McInnes Wilson Lawyers (First Defendant)
Submitting Appearance – Crown Solicitor (Second, Third and Fourth Defendants)

File Number(s):

2019/396932

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of a medical assessor and proper officer of the State Insurance Regulatory Authority (“SIRA”).

2. By summons filed 17 December 2019, the plaintiff relevantly seeks:

1. an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate and accompanying reasons of Dr Donald K Faithfull in his capacity as a medical assessor of SIRA (“the Medical Assessor”) dated 7 August 2019; or, alternatively,

2. an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Medical Assessor’s decision;

3. an order pursuant to s 69 of the Supreme Court Act setting aside the determination and reasons of the third defendant, Mr Jeremy Lum, in his capacity as a proper officer of SIRA (“the Proper Officer”) dated 7 November 2019;

4. an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Proper Officer’s decision;

5. an order in the nature of mandamus remitting the plaintiff’s application for assessment of Whole Person Impairment (“WPI”) to a different medical assessor for determination according to law; or alternatively,

6. an order in the nature of mandamus remitting the plaintiff’s application for review of the Medical Assessor’s decision for reallocation to a different proper officer for determination according to law.

3. The plaintiff is Warren Paul Doyle. The first defendant is QBE Insurance (Australia) Limited (“the insurer”). The second defendant is the Medical Assessor. The third defendant is the Proper Officer. The fourth defendant is SIRA. The second, third and fourth defendants have all filed submitting appearances. The plaintiff relief upon his affidavit dated 1 October 2020, and that of his solicitor, Tanya To, dated 25 September 2020. The insurer relied upon the affidavit of its solicitor Jack Craig dated 2 October 2020. The parties relied upon a court book (Ex A).

Background

4. On 26 August 2013, the plaintiff was involved in a motor vehicle accident (“the accident”) in which he sustained injuries to his lower back.

5. He claims an entitlement to damages for non-economic loss in relation to his injuries. Under s 131 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”), such damages are only compensable if he has sustained a degree of WPI greater than 10%. The insurer disputed the plaintiff’s claim. As such, the plaintiff made an application to SIRA for a determination as to whether or not his injuries exceeded that threshold. A number of applications were made to the Medical Assessment Service (“MAS”) of SIRA.

6. In 2005, prior to the accident, the plaintiff had undergone an operation to the L4/L5 vertebrae of his lumbar spine under the care of neurosurgeon Dr Jonathan Curtis. After the accident, Dr Curtis proposed to carry out a further decompression surgery to the L4/L5 vertibrae (“the second surgery”), which in his view was related to the injuries caused by the accident.

7. The MAS appointed a medical assessor, orthopaedic surgeon Dr Frank George Machart, to determine whether the second surgery was related to the accident. On 5 July 2017, Assessor Machart provided his certificate, in which he determined that the second surgery was related to injuries suffered in the accident. The insurer applied for a review of Assessor Machart’s decision.

8. On 29 January 2018, a review panel of SIRA comprised of Assessors Ian Cameron, Richard Crane and Clive Kenna (“the Review Panel”) conducted a review of Assessor Machart’s decision. The review included a medical assessment of the plaintiff. The Review Panel confirmed the findings of Assessor Machart that the second surgery was related to injuries suffered in the accident.

9. On 17 May 2018, the plaintiff underwent the second surgery by Dr Curtis.

10. On 4 December 2018, the plaintiff made an application to the MAS for a determination of WPI. On 21 January 2019, the insurer lodged a reply to that application, as well as its own application for further assessment of a treatment dispute. Those applications were referred by the MAS to the Medical Assessor, who was asked to consider not only the question of WPI, but also to reconsider the question as to whether or not the second surgery related to injuries caused by the accident, and whether the surgery was reasonable and necessary.

11. On 17 July 2019, the Medical Assessor carried out his assessment. On 7 August 2019, he issued his certificate and written reasons. He found that the second surgery did not relate to the plaintiff’s injuries suffered in the accident, and as such made no assessment of the plaintiff’s WPI.

12. Following the Medical Assessor’s decision, the plaintiff lodged an application to the MAS for review of that decision by a review panel.

13. On 7 November 2019, the Proper Officer delivered his decision and reasons, in which he declined to refer the matter for review.

14. The plaintiff now seeks a judicial review of both the decisions of the Medical Assessor and the Proper Officer. The plaintiff says that there are a number of jurisdictional errors and/or errors of law on the face of the record in both the Medical Assessor’s decision and the Proper Officer’s decision. Alternatively, he claims that in making their decisions, both the Medical Assessor and/or the Proper Officer constructively failed to exercise their statutory power.

The statutory framework

15. Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60 to 63, 131 and 133 are relevant here. They read:

“Part 3.4 Medical assessment

57 Definitions

In this Part:

medical assessment matters means any of the matters referred to in section 58.

medical assessor means a person appointed under this Part to make an assessment under this Part.

medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part.

medical dispute means a disagreement or issue to which this Part applies.

57A Motor Accidents Medical Assessment Service

(1)  The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service.

(2)  The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines.

58 Application

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

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

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

(c)    (Repealed)

(d)  whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

(e)    (Repealed)

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

…

60 Medical assessment procedures

(1)  A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor.

(2)  The Authority is to arrange for the dispute to be referred to one or more medical assessors.

(3), (4)    (Repealed)

61 Status of medical assessments

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

(2)  Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(3)    (Repealed)

(4)  In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5)  If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7)  Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter.

…

(9)  A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

62 Referral of matter for further medical assessment

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

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

(b) by a court or claims assessor.

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

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

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

…

Part 5.3 Damages for non-economic loss

131 Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

…

133    Method of assessing degree of impairment

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

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

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

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

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.”

The Medical Assessor’s decision

16. On 7 August 2019, the Medical Assessor issued his certificate and published reasons for his decision. He began his written reasons by recording that he had considered the application forms, the insurer’s reply and all supporting documents. He also reviewed additional documents provided subsequent to the referral of the matter, including eight listed Facebook posts from the Heffron Park Tuesday Night Racing page (“the Heffron Park Racing results”), an online article dated 22 June 2013, two medicolegal reports and two supplementary medical reports.

17. The Medical Assessor then referred to the history given by the plaintiff, including the 2005 operation performed by Dr Curtis for back and right leg pain. The plaintiff informed the Medical Assessor that the right leg pain had improved after this operation, but that his back pain had persisted, although not sufficiently enough to interfere with his work or professional cycle racing. The Medical Assessor noted that the plaintiff regularly attended an osteopath. The Medical Assesor stated at p 4, “I note [the plaintiff] saw Dr Wiliams [his GP] several times from 24/06/2009 to 30/08/2013. There was no mention of low back pain during that period, mainly anxiety and upper respiratory tract infections.”

18. Under the heading “History of Symptoms and Treatment Following the Motor Accident”, the Medical Assessor recorded the plaintiff’s various consultations with Dr Williams. These included a consultation on 30 August 2013 after the accident during which the plaintiff complained of lower back pain, which Dr Williams attributed to the accident, and a further consultation on 4 November 2013 during which the plaintiff complained only complained of anxiety.

19. So far as the plaintiff’s history of treatment from Dr Curtis is concerned, the Medical Assessor stated at pp 4-5:

“Dr Curtis first saw [the plaintiff] on 23/06/2014. The motor vehicle accident was described to Dr Curtis. [The plaintiff] told Dr Curtis that he had an increasing low back pain and persisting right leg pain. The MRI revealed a prolapsed disc at L4/5. [The plaintiff] had undergone conservative care but this had failed and Dr Curtis recommended surgery to [the plaintiff]. Dr Curtis saw [the plaintiff] again on 13/08/2014 when surgery was discussed.

Dr Curtis supplied a medicolegal report 12/05/2015 in which he made a diagnosis of acute disc prolapse affecting L5. He stated the new symptoms of low back pain and right sciatica occurred since the motor vehicle accident.

Dr Curtis sent a letter to [the plaintiff] on 04/062015 describing the pre-admission procedure for surgery.

A medicolegal report on 29/02/2016 stated that the last consultation was on 23/02/2016 and [the plaintiff] was suffering unresolved symptoms for 3 years, hence the necessity for surgery. A medicolegal report on 29/09/2014 discussed the costing of the surgery, rehabilitation, work time off, domestic duties and any complications from the surgery.

[The plaintiff] told me he had had the operation at the North Shore Private Hospital in July 2018.”

20. The Medical Assessor then turned to record the plaintiff’s symptoms at the time of assessment and his findings on clinical examination. He noted at p 5:

“[The plaintiff] said that his recreational activities have been affected. He said he can ride his pushbike but not race. He said he last raced in August 2014. He claimed that this was lower than his normal level.”

21. The Medical Assessor then referred to the original MAS assessment of Dr Machart, who had diagnosed the plaintiff with an aggravated pre-existing condition of L4/5 discopathy caused by the accident. However, the Medical Assessor stated at p 7:

“Dr Machart obviously did not have the documents that have been supplied to both Dr John Stephen and myself of the amount of racing that [the plaintiff] had been doing since the subject motor vehicle accident.” (The Medical Assessor’s emphasis)

22. As to the assessment of the Review Panel, the Medical Assessor continued at p 7:

“This was carried out by Assessors Ian Cameron, Richard Crane and Clive Kenna on 05/07/2017. This was essentially carried out using the same evidence supplied to Dr Machart.

I note the only resulting sheets from Cycling New South Wales are the only listing of [the plaintiff’s] name as a non-starter in an event at Bathurst on 05-06/04/2014. It is apparent that they were not aware of the amount of racing that he had undergone between the motor vehicle accident and August 2013.

[The plaintiff] was re-examined by Assessor Crane and Assessor Cameron on 29/02/2019. [The plaintiff] stated that he had not been able to return to cycle racing after the subject motor vehicle accident.

That is incorrect, based on the information supplied by the sheets from Cycling New South Wales that have been provided to both Dr Stephen and myself.

The Panel noted that ‘[the plaintiff] developed low back problems after the subject motor vehicle crash. This is clearly documented in the General Practitioner and other reports. The lower back problems have persisted and limit [the plaintiff]. He has been unable to return to his previous work and recreational activities.’

On the basis of all of the Cycling New South Wales documents, he had returned to competitive cycle racing at an A Grade level until August 2013.” (The Medical Assessor’s emphasis)

23. The Medical Assessor then reproduced the Heffron Park Racing results on p 8, which listed eight race results between 5 November 2013 and 25 March 2014 in which the plaintiff finished between 21^st and 1^st. I will refer to these results in more detail later in this judgment.

24. After summarising the relevant medical reports, the Medical Assessor then relevantly turned to consider the reports of Dr Stephen at p 9, noting that he had given the opinion on 19 September 2014 that the plaintiff “had low back pain that was interfering significantly with his work activities and with his cycling to the extent that he can no longer pursue them.” The Medical Assessor again noted that “[i]t is apparent that Dr Stephen did not have the Cycling New South Wales reports.”

23. The Medical Assessor referred to Dr Stephen’s further medicolegal report dated 14 June 2019, stating:

“Dr Stephen has now received the documents from Heffron Park Tuesday Night Racing. As a result of this evidence, on the basis of that extra documentation it was Dr Stephen’s view that ‘Bearing in mind that the motor vehicle accident took place on 26/08/2013, it is quite clear that the accident did not produce the level of symptoms which prevented [the plaintiff] from training twice a week and from competing successfully in high level cycle races for the next 7 months.

Dr Stephen also examined the entries from [the plaintiff’s] osteopath and it was of relevance to Dr Stephen that there were 2 entries describing exactly the symptoms of which [the plaintiff] later complained 3 weeks and 2 weeks respectively prior to the accident. Also, there was a gap of almost 3 months after the accident before the next osteopathic entry. It was now Dr Stephen’s opinion that had the accident been of much significance, one would have expected [the plaintiff] to have attended the osteopath sooner.

Dr Stephen concluded that ‘[the plaintiff] was significantly troubled by back and probably right buttock pain since 2009 (having had the operation in 2008) and especially in 2012 and 2013 and that this problem was recorded 3 weeks and 2 weeks prior to the subsequent accident. The gap of almost 3 months thereafter before [the plaintiff] saw his osteopath again and the gap of 8 months before putting in a claim in respect of the accident are further evidence that the accident played a lesser part than I had previously thought in respect of [the plaintiff’s] complaints.”

26. In response to the question, “If it is accepted that the claimant was capable of participating in high level cycling in the 7 month period following the accident, would this confirm or alter the underlying accuracy of your previous diagnosis? If so, why and how?”, Dr Stephen concluded:

“My previous diagnosis was that of a recurrent right sided far lateral L4/5 disc prolapse. This diagnosis remains unchanged. It is the causation that I now consider to be different and the reasons for this have been outlined above.”

27. Having set out Dr Stephen’s report, the Medical Assessor stated, “I essentially agree with Dr Stephen’s final consultation report. He was obviously misled by having insufficient information concerning [the plaintiff’s] ability to cycle which finally came out with the Cycling New South Wales reports.”

28. Under the heading “Diagnosis and Conclusion” at p 10, the Medical Assessor stated that the plaintiff suffered “L4/5 disc degenerative disease which has been aggravated by the subject motor vehicle accident but this aggravation has now ceased and the current pathological condition is degenerative L4/5 disease.”

29. The Medical Assessor concluded at pp 10-11:

“It is my opinion that the condition which Mr [the plaintiff] suffers is unrelated to the subject motor vehicle accident. [The plaintiff] did have some lower back pain and right leg pain, as described by the osteopath 3 weeks prior to the motor vehicle accident. Although [the plaintiff] saw Dr Williams shortly after the accident, there was then a significant gap until he saw his General Practitioner again. An MRI was ordered and as a result of that, he was referred to Dr Curtis. The MRI was not ordered until after Dr Williams, his GP, saw him again 07/04/2014 and the MRI was ordered 09/04/2014. Before that time, [the plaintiff] was undertaking professional cycling and it was really only after cycling finished in March 2014 that he saw his GP and undertook the MRI of the lumbar spine. From that, I have concluded that the motor vehicle accident was not the major cause of him seeking advice from both Dr Williams and Dr Curtis.”

30. As such, the Medical Assessor concluded that the second surgery was unrelated to the accident.

The grounds of judicial review

31. At the hearing of the proceedings, counsel for the plaintiff crystallised the grounds of review into three separate issues. They are that the Medical Assessor erred by:

1. denying the plaintiff procedural fairness by failing to confront him about alleged inconsistencies in his medical history;

2. making findings unsupported by the evidence; and

3. failing to provide adequate reasons for rejecting the plaintiff’s expert evidence in reaching his determination.

32. It is noted that these grounds of judicial review do not entirely accord with the grounds articulated in the plaintiff’s summons. Furthermore, only the procedural fairness ground was ever submitted to the Proper Officer. Counsel for the insurer submitted that this Court is under no duty to give the plaintiff an opportunity to make submissions additional to what is articulated in his written application: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074 (“Alphaone”) at 713, nor should the Court entertain grounds which were not properly subjected to the statutory appeals process under the MAC Act.

33. However, as the plaintiff’s newly-articulated grounds of review substantially overlap with those set out in the summons, and as counsel for the insurer was able to address them at the hearing, I will consider all three of the plaintiff’s grounds of review in the order set out above. For the reasons which follow, it is my view that none of the grounds of review are made out.

Ground 1 –denial of procedural fairness

The plaintiff’s submissions

34. The plaintiff submitted that the Medical Assessor failed to confront him in relation to the following perceived issues:

1. inconsistencies in the histories given by the plaintiff to various doctors;

2. inconsistencies between his reported history of problems with his ability to cycle, when compared to the Heffron Park Racing results; and

3. insufficient complaints from the plaintiff of symptoms to his GP and/or osteopath.

35. The plaintiff submitted that in the Medical Assessor’s history of the plaintiff’s bike riding activities, the only matter which he recorded as coming from the plaintiff himself is that he saw his GP two to three days after the accident, and that he had an operation on July 2018. Nothing is recorded of the plaintiff being questioned about the racing reports. The plaintiff confirms that he was not asked about these matters (Aff 1/10/2020).

36. The plaintiff’s involvement in racing was a matter of considerable importance to the Medical Assessor’s determination. On p 5 of his reasons, the Medical Assessor recorded that the plaintiff told him that he had raced up to August 2014 at lower than his normal level.

37. On the next page under the heading “Consistency of Presentation”, the Medical Assessor recorded that the plaintiff presented in a straightforward fashion without exaggeration. On p 7, he recorded his view that Dr Machart did not have the relevant documents related to cycle racing. Shortly after, he made the same observation about the Review Panel. The plaintiff submitted that these statements only represented the Medical Assessor’s assumptions. They were repeated on p 9, where the Medical Assessor stated that it was apparent that Dr Stephen also had not seen the racing reports, and on p 10 he referred to Dr Stephen being misled by having sufficient information concerning the plaintiff’s ability to cycle.

38. The plaintiff submitted that at no time did the Medical Assessor raise with the plaintiff what he considered to be an important matter in his deliberations. He did not ask the plaintiff how it could be that he apparently returned to competitive cycling despite the injuries to his back of which he complained.

39. Further, the plaintiff submitted that the Medical Assessor never asked the plaintiff about the histories he had given to other doctors, which the Medical Assessor later relied upon in his finding that the plaintiff was not truthful about his ability to cycle after the accident. According to the plaintiff, these failures amount to a denial of procedural fairness.

40. The plaintiff referred to Minister for Immigration and Citizenship v SZGUR (2001) 241 CLR 594; (2011) 273 ALR 223 (“SZGUR”), where the High Court said AT [9]:

“…Procedural fairness requires a decision maker to identify for the person affected any critical issues not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material….”

41. In Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39, the Court of Appeal said at [32]:

“…[T]he content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond.”

42. The plaintiff submitted that in the present case, he was neither confronted with the inconsistencies which the Medical Assessor took into account from the evidence, nor was he provided with an opportunity to be heard about them. Given the significance which the Medical Assessor placed on those records, it was incumbent upon him to show them to the plaintiff and allow him an opportunity to respond.

The insurer’s submissions

43. The insurer submitted that it is important to distinguish between a decision maker:

1. having to afford procedural fairness by confronting the person affected with inconsistencies from which a decision maker might draw an adverse conclusion; and

2. having a purported obligation (as claimed by the plaintiff) to traverse with the affected person information that is otherwise adverse to their interests.

44. A decision maker must afford an affected person an opportunity to respond to an adverse conclusion “which would not obviously be open on the known material”: see SZGUR at [9].

45. However, a decision maker is not required to engage with a person affected about every piece of evidence which the decision maker may ultimately find is adverse to the person affected: see Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (“Kioa”), per Brennan J at [628]:

“The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.”

46. In Alphaone, the Court stated at [591]:

“Within the bounds of rationality, a decision maker is generally not obliged to invite comment on the evaluation on the subject’s case. It is only if the decision maker proposes to reach an adverse conclusion that is not an obvious and natural evaluation of the material supplied by the applicant, that the applicant is entitled to be told of the tentative conclusion.”

47. In Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950 (“Bradley”), Adamson J stated at [50]:

“[50] The regime established by the Act and the MAA Guidelines for a Review Panel to assess the degree, if any, of permanent impairment arising from injuries sustained in a motor accident is, as the High Court emphasised in Kocak, substantially different. Although there is a requirement for procedural fairness, there is no right to a hearing as such. The Review Panel may decide to examine the claimant, or not, as the case may be. It can decide what weight to give to a particular piece of evidence (such as the plaintiff’s involvement with the local dog track; or his experience in making previous claims) without putting a potential adverse inference to the claimant, or having an active contradictor.”

48. The insurer submitted that the plaintiff has incorrectly characterised the Medical Assessor’s reliance on evidence adverse to the plaintiff as an inconsistency, in order to lay the foundation for an allegation that there was a denial of procedural fairness. In his submissions, the plaintiff referred to histories apparently provided to previous MAS Assessors or medico-legal specialists, and the Medical Assessor distinguishing those opinions from his own. The plaintiff suggested that was a matter that should have been put to him.

49. The plaintiff also refers to the alleged “misunderstanding” of the evidence about the plaintiff’s pre- and post-accident complaints of back pain and again suggests that these were matters about which the plaintiff should have been confronted. The plaintiff refers to the history as to his activities before and after the accident and it is again suggested that the plaintiff was not asked about these matters.

50. The insurer submitted that while these were matters which the Medical Assessor considered relevant in determining the medical issue, they should not be characterised as “inconsistencies” such that the Medical Assessor was obliged to traverse these issues with the plaintiff during the medical assessment.

51. Rather, the Medical Assessor properly considered the uncontested material gleaned from a combination of the clinical notes, the plaintiff’s history as provided in the medical assessment, the competing medical opinions, the assumptions/histories upon which those opinions were based and the remaining evidence.

52. A medical dispute, by its very nature, involves a disagreement as to a “medical assessment matter”: see s 58 of the MAC Act. Any medical assessor, as part of his/her process of reasoning, will inevitably make findings adverse to a party to a dispute. This is inherently part of deciding the dispute.

53. The insurer submitted that the plaintiff incorrectly contends that the failure of the Medical Assessor to put potentially adverse findings to him amounts to a denial of procedural fairness. If this was the obligation on the Medical Assessor, he would engage in a curial process of the type which the High Court in Kioa and Adamson J in Bradley expressly disavowed.

54. As such, the insurer submitted that the process of reasoning, and the Medical Assessor’s ultimate determination, albeit adverse to the plaintiff, does not amount to a denial of procedural fairness.

Consideration

55. At the hearing of these proceedings, both parties referred to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 143; 252 CLR 480 (“Wingfoot”). In Wingfoot, the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ) stated at [47]:

“[47] The function of a medical panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the medical panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the medical panel with material which may be relevant to the formation of the opinion and to make submissions to the medical panel on the basis of that material...”

56. In these proceedings, the Medical Assessor was obligated to observe procedural fairness for the purpose of providing the parties with an opportunity to supply him with material relevant to his determination, and to make relevant submissions. For the reasons which follow, it is my view that the plaintiff was afforded that opportunity.

57. As set out earlier in this judgment, the Medical Assessor conducted his assessment on the basis of two applications before him. The first was the plaintiff’s own application for a determination of WPI. The second was as a result of the insurer’s application for further assessment pursuant to s 62 of the MAC Act on the basis that there was additional relevant information about the plaintiff’s injury. That information included the Heffron Park Racing results, the medicolegal reports of neurosurgeon Dr Casikar dated 23 January 2019 and 4 April 2019, and the medicolegal reports of orthopaedic surgeon Dr Stephen dated 9 September 2014, 5 April 2016 and 14 June 2019 which indicated Dr Stephen’s reconsideration of his earlier assessment.

58. Medical Assessment Guidelines issued under s 44(1)(d) of the MAC Act, and effective from 1 October 2018 (“the Guidelines”), outline the procedures to be followed for assessments under Part 3.4 of the Act.

59. Clauses 3.13 to 3.21 of the Guidelines concern the exchange and logement of an application and reply. Clauses 3.13 and 3.15 read:

“3.13   The applicant must complete the applicant and:

3.13.1   send it to the respondent, together with a copy of all material in support of the application that had not been previously supplied to the applicant; and

3.13.2   lodge it with MAS, with all material in support of the reply. If lodged other than via the ECM system, 2 paper copies are required, however unrepresented claimants need lodge only a single copy of the reply and supporting documents.”

…

3.15   The respondent must within 20 days of the date of the sending by MAS of the acknowledgement of the application, complete the reply and:

3.15.1   send it to the applicant, together with a copy of all material in support of the reply that has not been previously supplied to the applicant; and

3.15.2   lodge it with MAS, with all material in support of the reply. If lodged other than via the ECM system, 2 paper copies are required, however unrepresented claimants need lodge only a single copy of the reply and supporting documents.”

60. Under cl 9.11, when a dispute has been referred to a Medical Assessor for assessment, the Medical Assessor shall:

“9.11.5   provide the Assessor or Assessors with:

9.11.5.1   a copy of the application and reply and all documents and material in support of the application and reply;

9.11.5.2   the notification letter sent to the parties under clause 9.11.4;

…”

61. These clauses set out a regime for providing material to the Medical Assessor in the course of an application for assessment or re-assessment under the MAC Act.

62. In these proceedings, the plaintiff lodged his initial application for assessment in relation to his back on 31 January 2017. On 3 March 2017, the insurer lodged its reply. In its submissions in relation to the dispute, the insurer noted that in January, February and April 2014, the plaintiff appeared to finish in first and third places in the Heffron Park A Grade races (CB 121, [16]-[19]).

63. The insurer then lodged its application for further assessment on 21 January 2019. In its attached submissions, the insurer noted that the Medical Review Panel had stated in its reasons that “[The plaintiff] confirmed that he had not been able to return to his cycle riding after the subject motor vehicle crash. He has not had a cycle racing license since 2013” (at [4]). It had also stated that “[The lower back symptoms have persisted and limit [the plaintiff]. He has been unable to return to his previous work and recreational activities” (at [5]). The insurer submitted to the Medical Assessor that the Review Panel had therefore determined the surgery was causally related to the accident on the basis of the history provided by the plaintiff, which was inaccurate.

64. Under the heading “Basis for application”, the insurer submitted:

“14   The claimant’s reaffirmed history of being unable to return to cycling is clearly inaccurate by way of further information that has now come to hand.

15.   The further information is material in an absolute respect because it directly conflicts with the version the claimant provided to Assessor Machart, and the Review Panel, as well as other practitioners in the course of his claim.

16.   The further material demonstrates that the claimant undertook significant post-accident functioning for at least 7 months following the accident.

17.   As the claimant’s participation in competitive cycling events after the accident is entirely inconsistent with the prior assumptions based upon his reported history, the claimant can not be relied upon for historical purposes.”

65. Under the heading “Further information”, the insurer set out the relevant extracts from the Heffron Park Racing results, submitting that “the ability to perform at the stated levels is inconsistent with the claimed accident related aggravation.”

66. On 11 March 2019, the plaintiff lodged his reply, and on 23 May 2019, the insurer lodged supplementary submissions.

65. It is in the context of this procedural history that this ground of review must be considered. As the High Court in Wingfoot makes clear, the obligation of the Medical Assessor to afford procedural fairness is for the purpose of providing the parties with an opportunity to supply him with material which may be relevant to the formation of his opinion, and to make submissions (at [47]). The issue of the plaintiff’s involvement in competitive cycling, and the Heffron Park Racing results, were raised in the insurer’s submissions in relation to this dispute as early as 3 March 2017, and again in its submissions before the Medical Assessor on 21 January 2019. The plaintiff did not respond to those submissions in his 11 March 2019 submissions in reply. It cannot be said that the Medical Assessor’s adverse conclusion reached on the basis of this evidence was not an “obvious and natural evaluation of the material supplied”, such that he was obligated to raise it with the plaintiff in his assessment (Alphaone at [591]).

66. At the hearing of these proceedings, counsel for the plaintiff further referred to the SIRAMotor Accident Permanent Impairment Guidelines(“Permanent Impairment Guidelines”), made pursuant to s 44(1)(c) of the MAC Act, which apply to the assessment of permanent impairment disputes by virtue of s 133 of the Act. Clause 1.41 appears under the heading “Consistency”, and provides:

“1.41   Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

69. Counsel for the plaintiff submitted that cl 1.41 of the Permanent Impairment Guidelines obligated the Medical Assessor to raise with the plaintiff the issue of his participation in competitive cycling during the relevant period after the accident. However, cl 1.41 directs a medical assessor to raise with a claimant inconsistencies with the assessor’s own clinical findings and the claimant’s reported history. It does not concern a situation such as in this case, where the potential “inconsistency” lies between the history provided by the plaintiff and other evidence of his non-clinical activities before the assessment. There was no dispute before the Medical Assessor that the plaintiff sustained the injury claimed, but rather whether that injury, and the second surgery, had been caused by the accident.

70. For these reasons, it is my view that the Medical Assessor did not fail to afford the plaintiff procedural fairness. This ground of review fails.

Ground 2 – findings unsupported by the evidence

The plaintiff’s submissions

71. The plaintiff submitted that the Medical Assessor misunderstood the evidence about the plaintiff’s pre- and post-accident complaints of back pain. The plaintiff was not asked about those matters. However, in his certificate at p 5, the Medical Assessor recorded a history given by the plaintiff to Dr Curtis that the new symptoms of low back pain and right-sided sciatica had only occurred since the accident.

72. On p 9, the Medical Assessor recorded that Dr Stephen noted that there were two entries from the osteopath describing the same symptoms three and two weeks prior to the accident. He then recorded that there was a gap of 3 months after the accident before the next osteopathic entry. It would appear that the Medical Assessor placed considerable weight on that matter in reaching his conclusion that the surgery was not related to the accident.

73. The plaintiff submitted that this reasoning failed to recognise that the plaintiff had not seen a doctor for problems with his back for some years before the accident. He had, however, seen his GP within four days of the accident complaining of back pain. The plaintiff suggested that that evidence alone would suggest that there was a significant increase in his back pain beyond what might be seen as the underlying level of any problem he suffered before the accident. He submitted that the Medical Assessor was required to explain why this aspect of his history was not a significant matter in determining whether he had increased symptoms following the accident, necessitating the surgery.

74. Further, the plaintiff submitted that the Medical Assessor’s reasons fail to deal with his case that before the accident he was able to carry out all of his usual activities, but that after the accident he was restricted not only in bike riding but in other activities. That history was significant because it demonstrated a worsening of the back problems soon after the accident.

75. It is the plaintiff’s case that the Medical Assessor placed undue weight on the history contained in the osteopath notes, and did not place due weight to the history from the GP notes. The plaintiff characterised this imbalance as a misunderstanding of the evidence, particularly the relevance of the GP notes, or otherwise as a failure to give adequate weight to that history in reaching his conclusions, which is a procedural error.

76. The plaintiff further submitted that the Medical Assessor’s reasons for rejecting the opinions of Dr Machart, Dr Stephen and the Review Panel were based upon the Medical Assessor’s own interpretation of the racing results. It is the plaintiff’s case that the Medical Assessor did not understand the significance of those results in the context of the plaintiff’s ability to cycle, and that his reasons for placing such significant weight on the racing results were unsubstantiated and inadequate.

The insurer’s submissions

77. The insurer submitted that the plaintiff’s contentions amount to a merits review within jurisdiction. In AAI Limited t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (“McGiffen”), Simpson JA (with whom Meagher and Payne JJ agreed) stated at [88]:

“…His Honour’s reference there to the ‘finding of fact’ is reasonably understood as being to his finding in [50] that there was ‘no evidence of any injury’. If that is what the primary judge is referring to, we would agree that there was no error of law made by the review panel because that finding as formulated is directed to a question on which the expert review panel was entitled to make its own assessment as to the adequacy of evidence proving an ‘injury’: Wingfoot at [47]. Therefore, if there was any error, it was limited to the making of a finding of fact as to the existence of evidence of symptoms or complaint of injury, for which there was no support.”

78. In Cahill v Insurance Australia Limited [2009] NSWSC 564 (“Cahill”), Campbell J said the following in respect to the question of sufficiency of evidence or dealing with evidence generally at [58]:

“In considering the sufficiency of this evidence, one should bear in mind the nature of the Review Panel’s function as described by the High Court in Wingfoot (at [43] above). And as the Court of Appeal said in AAI v McGiffen (at [88]), as an expert panel the Review Panel was entitled to make its own assessment as to the adequacy of the evidence proving, or disproving, an ‘injury’. It cannot be said in the circumstances as this case that there was no material supporting the Review Panel’s conclusion of fact or, as I have said, that the material before it admitted of one correct answer only. If the Review Panel fell into error in regard to the central issue, it was an error of fact within jurisdiction.”

79. The plaintiff’s submissions, in support of the claimed jurisdictional error, refer to the Medical Assessor placing weight on certain aspects of the evidence, and otherwise refers to the Medical Assessor having failed to give any or any adequate weight to other pieces of evidence. It is otherwise claimed that the Medical Assessor failed to deal with other evidence.

80. The insurer submitted that any purported error as to the Medical Assessor’s consideration of the evidence is within jurisdiction, and no further consideration is required. In any event, it is self-evident from the Medical Assessor’s reasons, that he considered the competing evidence in determining causation adverse to the plaintiff.

81. Having considered all of the evidence, the Medical Assessor determined that the plaintiff’s condition was unrelated to the subject accident. The Medical Assessor, in making this determination, articulated his reasoning process, and relevantly identified the following uncontroversial evidence:

1. that the plaintiff had some low back pain and right leg pain three weeks prior to the motor vehicle accident;

2. that he attended his GP shortly after the accident;

3. that there was a significant gap until he saw his GP again;

4. that an MRI was not ordered until after the plaintiff was further seen by his GP on 7 April 2014; and

5. that in the intervening period, the plaintiff had undertaken cycling and it was only after cycling had finished that he saw his GP and undertook the MRI.

82. The insurer submitted that having considered this evidence, the Medical Assessor, as he was required to do, applied his own medical expertise in making his determination. As part of his decision making process, he considered the competing medical opinion and all other material placed before him. In arriving at his own medical opinion, the Medical Assessor placed more weight on particular evidence, and less weight on other evidence. The plaintiff’s challenge to the Medical Assessor’s determination as to the weight he placed on certain evidence has no foundation in a claim of jurisdictional error. There was no misunderstanding of the evidence.

83. The Medical Assessor’s finding on causation was simply adverse to the plaintiff. The insurer submitted that the plaintiff has established no jurisdictional error.

Consideration

84. At the hearing of these proceedings, counsel for the plaintiff submitted that the Medical Assessor made several findings which did not accord with the evidence before him.

85. Some of those findings relate to references he made to the Cycling New South Wales racing results. The first appears at p 7 of his reasons, where the Medical Assessor recorded that the Review Panel had carried out its assessment on 5 July 2017 with the same evidence as had been before Assessor Machart. The Medical Assessor stated:

“I note the only resulting sheets from Cycling New South Wales are the only listing of [the plaintiff’s] name as a non-starter in an event at Bathurst on 05-06/04/2014. It is apparent that they were not aware of the amount of racing that he had undergone between the motor vehicle accident and August 2013.

[The plaintiff] was re-examined by Assessor Crane and Assessor Cameron on 29/02/2019. [The plaintiff] stated that he had not been able to return to cycle racing after the subject motor vehicle accident.

That is incorrect, based on the information supplied by the sheets from Cycling New South Wales that have been provided to both Dr Stephen and myself.

The Panel noted that ‘[the plaintiff] developed low back problems after the subject motor vehicle crash. This is clearly documented in the General Practitioner and other reports. The lower back problems have persisted and limit [the plaintiff]. He has been unable to return to his previous work and recreational activities.’

On the basis of all of the Cycling New South Wales documents, he had returned to competitive cycle racing at an A Grade level until August 2013.” (The Medical Assessor’s emphasis)

86. The second reference to the Cycling New South Wales results is on p 9, where the Medical Assessor discussed the reports of Dr Stephen. The Medical Assessor noted that when Dr Stephen wrote his initial report dated 19 September 2014, “it is apparent that Dr Stephen did not have the Cycling New South Wales reports.”

87. Before I consider these passages in detail, I acknowledge that the reasons of a Medical Assessor are not to be construed “minutely and finely with an eye keenly attuned to the perception of error”: see Collector of Customs v Pozzolianic [1993] FCA 322; 43 FCR 280. Rather, they are to be read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Nevertheless, this beneficial approach to construction does not mean that any ambiguity is to be resolved in the assessor’s favour: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]. Invariably, some reasons “will cross the line, and irredeemably reveal jurisdictional error”: see Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289; [2006] FCA 328 at [88].

88. With that standard in mind, there are two things to be said in relation to the evidence referred to in these passages. The first is that the Medical Assessor appears to have made and then repeated a typographical error when referring to the plaintiff cycling after the accident up “until August 2013”. The accident itself occurred in August 2013. Earlier in his reasons, the Medical Assessor recorded that the plaintiff told him he had “last raced in August of 2014” (p 5). In my view, it is clear from the context of the reasons that the references to August 2013 on p 7 are intended to be references to August 2014, reflecting the period after the accident in which the plaintiff returned to competitive cycling.

89. The second issue to address is the significance the Medical Assessor made of the Cycling New South Wales results to which he refers. These results, printed over some 10 pages, were from a cycling event in Bathurst on 5-6 April 2014 (CB 150-165). The plaintiff’s name only appeared on the last page under a start time of “DNS”, or Did Not Start. At the hearing of these proceedings, counsel for the plaintiff disputed that these results evinced the plaintiff’s participation in competitive cycling, as they merely recorded his attendance at a race in which he was a nonstarter.

90. The Medical Assessor himself seemed to acknowledge this fact when he stated in the passage extracted above from p 7, “I note the only resulting sheets from Cycling New South Wales are the only listing of [the plaintiff’s] name as a non-starter in an event at Bathurst on 05-06/04/2014.” He continued to reason that as these results before the Review Panel (and Assessor Machart) did not reflect the extent of the plaintiff’s return to cycling following the accident, “It is apparent that [the Review Panel] were not aware of the amount of racing that he had undergone between the motor vehicle accident and August [2014].”

91. For the reasons which follow, it is my view that a fair reading of the subsequent references to the Cycling New South Wales results is that they were intended to be references to the Heffron Park Racing results.

92. The Heffron Park Racing results were provided to the Medical Assessor as part of the additional relevant information accompanying the insurer’s application for reassessment. The results were published in posts on the Heffron Park Racing Group Facebook page, at times accompanied with pictures, listing the participating race finishers in order of their placement (CB 246-256). In a post dated 15 November 2013, the plaintiff is listed as having finished 21^st, and is mentioned in an accompanying article which stated, “The battle for B grade honours was effortlessly taken out by [the plaintiff] who has the uncanny ability to always follow the right wheel and has the perfect turn of speed when it matters” (CB 246-247). The posts continue to show that in a race dated 12 November 2013, the plaintiff finished 3rd; that on 17 December 2013 he finished 7^th; that on 27 January 2014 he finished 2^nd; that on 4 February 2014 he finished 1^st, along with the comment, “Warren Doyle still has a trick or two up his sleeve and showed GPM how it’s done”; that on 11 February 2014 he finished 3^rd; that on 18 February 2014 he finished 5^th; and that on 25 March 2014 he finished 3^rd.

93. At the hearing of these proceedings, counsel for the plaintiff conceded that the Heffron Park Racing results did “show that the plaintiff had raced in a few races” after the accident (T 18.6-7).

94. At p 9, the Medical Assessor highlighted that Dr Stephen had “now received the documents from Heffron Park Tuesday Night Racing” when he wrote his 14 June 2019 report. It was “as a result of this evidence, on the basis of that extra documentation” that Dr Stephen revised his initial opinion as to causation. In light of the significance of the Heffron Park Racing results to Dr Stephen’s (and the Medical Assessor’s) assessment, it it is my view that the Medical Assessor’s statement just before that “it is apparent that Dr Stephen did not have the Cycling New South Wales reports” when he write his initial report of 19 September 2014 is a mistaken reference. In my view, read fairly and as a whole, the Medical Assessor intended to refer to the Heffron Park Racing results, which were of such significance to Dr Stephen in his subsequent report.

95. This reading also accords with the context of the references to the Cycling New South Wales results on p 7. The Heffron Park Racing results, not the Cycling New South Wales results, were the additional information “provided to both Dr Stephen and myself” demonstrating that the plaintiff was able to return to cycle racing. The Medical Assessor seemed to make the same mistake shortly thereafter when he referred to the Cycling New South Wales results showing that the plaintiff “had returned to competitive cycle racing at an A Grade level”. Only the Heffron Park Racing results, not the Cycling New South Wales results, referred to the plaintiff competing at an A Grade level.

96. Although this mistaken referencing on the part of the Medical Assessor is unfortunate, in my view it does not lead him to arrive at findings which do not accord with the evidence. The Cycling New South Wales reports may not have evinced the plaintiff’s participation in A Grade cycling during the period between the accident and mid-2014, but the Heffron Park Racing results do. The Medical Assessor was not mistaken in reasoning on the basis that documents evincing the plaintiff’s participation in A Grade competitive cycling were not before Dr Stephen when he wrote his 19 September 2014 report, nor were they before Assessor Machart or the Review Panel when they considered the plaintiff’s application.

97. The plaintiff’s second primary submission in relation to this ground of review is that the Medical Assessor “failed to give adequate weight” to the report of the plaintiff’s GP from 30 August 2013, four days after the accident, during which the plaintiff complained of back pain. It is the plaintiff’s case that the Medical Assessor was required to explain why he did not consider this evidence to be significant in his conclusion that the injury was not caused by the accident.

98. There are several observations to be made in relation to this submission. The first is that there is no basis for a judicial review in this Court arising from a decision maker “failing to give adequate weight” to certain evidence. In Dunbar v Allianz Australia Limited [2015] NSWSC 119 (“Dunbar”), Fullerton J stated at [78]:

“… An administrative decision maker in the position of Dr Cameron as a medical assessor under the Act is not required to specify in the reasons for decision which accompany the issue by him of a certificate under s 61(1) why he did or did not accept certain matters, or why he did not consider a matter to be relevant to the evaluation of impairment – although, of course, he may have chosen to do so. His only duty is to supply reasons for the decision after undertaking the assessment in accordance with the Act and in compliance with the Guidelines (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212).’

99. The second observation to be made is that this is not in fact a case where the Medical Assessor failed to address the evidence of the plaintiff’s GP. Rather, the Medical Assessor in his reasons considered that the plaintiff had reported back and leg pain to his osteopath three weeks prior to the accident; that he complained of back pain to his GP four days after the accident; that he did not revisit his osteopath until three months after the accident; that he did not see Dr Curtis in respect of his back until over a year after the accident, during which time he participated substantially in competitive cycling; and that an MRI was not ordered until April 2014. It was in the context of this evidence that the Medical Assessor did not consider the plaintiff’s visit to his GP shortly after the accident to be determinative of causation. The Medical Assessor was entitled to make his own assessment as to the adequacy of the evidence proving the plaintiff’s injury and its cause. As in Cahill, in this case it cannot be said that there was no material supporting the Medical Assessor’s conclusion, or that the material before him admitted to only one conclusion (at [58]).

100. For these reasons, it is my view that the Medical Assessor did make findings not supported by the evidence. This ground of review fails.

Ground 4 – failure to provide adequate reasons for rejecting the plaintiff’s expert evidence

The plaintiff’s submissions

101. At the hearing of these proceedings, counsel for the plaintiff submitted that the Medical Assessor failed to consider the expert evidence of Dr Curtis, Dr Peter Bentivoglio and Dr John Bentivoglio in reaching his determination of causation. Although this alleged error may have been expressed as a failure to respond to a substantial, clearly articulated argument, it appears that the plaintiff characterised it as a failure to provide adequate reasons for rejecting that evidence.

102. The plaintiff submitted that at p 5 of his reasons, the Medical Assessor referred to the reports of Dr Curtis, including the report dated 12 May 2015. The Medical Assessor characterised this report as one in which Dr Curtis “made a diagnosis of acute disc prolapse affecting L5. He stated that the new symptoms of low back pain and right sciatica occurred since the motor accident.” At the hearing of these proceedings, counsel for the plaintiff noted that the opinion expressed by Dr Curtis in his 12 May 2015 report directly concerns causation (CB 180):

“[The plaintiff] described what happened to him in my initial consultation with him. He says that he was struck by an unmarked police car. Following this event, he had immediate lower back pain and shortly afterward, he developed recurrent right-sided leg pain. Whilst there was no fracture demonstrated, his spinal MRI shows an acute disc prolapse under the L5 nerve root with evidence of an anular disruption. I am of the opinion therefore that his injury (the impact) has therefore affected the intervertebral disc at L4/5 and posterior longitudinal ligament which normally stabilizes the disc. This has resulted in a pain syndrome consistent with both a disc and nerve root compression syndrome. The symptoms have persisted ever since despite measures with physiotherapy, behavioral modification and simple analgesia.”

103. The plaintiff submitted that nowhere in the Medical Assessor’s reasons did he refer to the causative link that Dr Curtis drew between the plaintiff’s injury and the accident.

104. At p 5, the Medical Assessor stated:

“[The plaintiff] said that his recreational activities had been affected. He said he can ride his push bike but not race. He said he last raced in August 14. He claimed that this was lower than his normal level.”

105. The plaintiff submitted that the Medical Assessor failed to consider the plaintiff’s expert opinions provided by Dr Curtis, Dr Peter Bentivoglio and Dr John Bentivoglio. Instead, he considered the opinion of Dr Casikar, the neurosurgeon engaged by the insurer. He then simply agreed with Dr Stephen, failing to explain his reasoning but simply agreeing with his expert opinion. The plaintiff submitted that the failure to consider this expert evidence was an error of law.

The insurer’s submissions

106. The insurer referred to QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875 at [58], where RA Hume J addressed the standard to which an administrative decision maker’s reasons are to be assessed as follows:

“The reasons of the medical assessor are not to be scrutinised upon over-zealous 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] HCA 6; 185 CLR 259 at 272.”

107. In Farr v Insurance Australia Limited t/as NRMA Insurance [2014] NSWSC 1435 (“Farr”), Adamson J stated at [46]:

“… a medical assessor's duty is to come to his or her own opinion and take his or her own history, not to analyse every piece of information from every opinion contained in a document with which he was provided: Kocak at [47]. The plaintiff's resort to authorities such as Origin Energy v BestCare was, in my view, misplaced. The assessment made was not illogical. Associate Professor O'Reilly took into account Dr McGlynn’s reasons. Furthermore, Mr Romaniuk conceded that the assessment was open to him.”

108. The insurer submitted that contrary to the plaintiff’s assertions, the Medical Assessor’s reasons clearly recorded the plaintiff’s pre-accident medical history, the history of the accident, the history of symptoms and follow-up treatment, and review of the documentation including medical reports, clinical notes and records relating to the plaintiff’s participation in competitive cycling.

109. The Medical Assessor diagnosed the plaintiff as suffering a L4/5 degenerative disease aggravated by the accident, which had since ceased. His ongoing condition at the time of the assessment was diagnosed as degenerative L4/5 disease which was unrelated to the accident.

110. In determining that the surgery was unrelated to the accident, the Medical Assessor had regard to all of the material which was the subject of review, particularly the following:

1. that the plaintiff had suffered low back pain and right leg pain three weeks prior to the accident;

2. that there was a significant gap between the accident and medical treatment necessitating referral for an MRI and to Dr Curtis;

3. that in the intervening period, the plaintiff was undertaking professional cycling; and

4. that it was only after completing the professional cycling that the plaintiff attended his GP and underwent an MRI of the lumbar spine.

111. The insurer submitted that in the circumstances, the Medical Assessor’s reasoning was logical and rational and disclosed a clear process of reasoning leading to his determination. His reasons sufficiently discharged his onus and disclosed the basis on which he arrived at his determination.

Consideration

112. In its application and before the Medical Assessor, the plaintiff relied on the reports of three doctors. The first, Dr Curtis, was his treating neurosurgeon, who performed both his 2009 surgery and the second surgery in 2018. The second was orthopaedic surgeon Dr John Bentivoglio, and the third was neurosurgeon Dr Peter Bentivoglio. All three of these doctors expressed the opinion that the proposed surgery was related to the accident. Two referred to having been told that the plaintiff continued to cycle after the accident.

113. It is the plaintiff’s case that in his reasons, the Medical Assessor only briefly referred to these doctors and their reports, but did not mention their opinions about the critical issue of causation, and did not explain why he disagreed with their opinions.

114. In Wingfoot at [47], the High Court considered the obligation of a medical panel (or the Medical Assessor) to address the evidence before it as follows:

“[47] …The material supplied [to the medical panel] may include the opinions of other medical practitioners, and submissions to the medical panel may seek to persuade the medical panel to adopt reasoning or conclusions expressed in those opinions. The medical panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

115. The High Court went on to state at [55]:

“[55] The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

116. The Medical Assessor was obliged to consider the evidence before him, including the expert reports of Dr Curtis, Dr John Bentivoglio and Dr Peter Bentivoglio. He set out these opinions in his reasons. However, the Medical Assessor was not obliged to arrive at his determination by reference to the competing contentions of the parties’ expert medical opinions: see Wingfoot at [47]. Rather, he was obliged to form his own opinion on the basis of the evidence before him.

117. Furthermore, the Medical Assessor did not “simply agree with Dr Stephen” as the plaintiff submitted. In his conclusion, set out earlier in this judgment, the Medical Assessor stated that the plaintiff complained to his osteopath of back and leg pain three weeks prior to the accident; that he complained to his GP of back pain four days after the accident; and that he did not see his GP again in relation to that back pain until April 2014. In the intervening year between his accident and referral for an MRI, the plaintiff participated substantially in competitive cycling. The Medical Assessor concluded, “From that, I have concluded that the motor vehicle accident was not the major cause of [the plaintiff] seeking advice from both Dr Williams and Dr Curtis.”

118. These reasons set out the actual path of reasoning by which the Medical Assessor arrived at his decision that the plaintiff’s injury was not caused by the accident. It cannot be said that the Medical Assessor failed to consider the plaintiff’s evidence, nor did he fail to provide reasons for rejecting that evidence. This ground of review fails.

The Proper Officer’s decision

119. On 7 November 2019, the Proper Officer issued his determination and statement of reasons. His relevant reasons are as follows:

“6. The appellant’s submissions are essentially a disagreement with the causation decision without highlighting any error in the Assessor’s reasons or the information considered by the Assessor.

7. The Certificate reasons plainly indicate that the Assessor was aware of the claimant’s pre-accident back problems and was given a history that following the 2005 surgery, the back pain had persisted but did not interfere with the claimant’s work and processional pushbike racing.

8. I have read page 4 of the Certificate and there is no indication of any inconsistency here. The Assessor simply notes that the claimant saw his GP on 30/08/2013 with no finding of inconsistency made against the claimant.

9. Turning to page 9 of the Certificate where the appellant alleges that the Assessor ‘seems to have placed some emphasis’ on the osteopath visits. I agree that the 3 month gap after the initial appointment with the GP was a factor that was taken into consideration by the Assessor in the treatment causation decision. This much is plainly seen on page 10 and 11 of the Certificate. While it is a matter that was open to the Assessor, it will be seen below that it was not the only factor that led to the Assessor’s conclusion that the lumbar spine injury was not causally related to the motor accident.

10. The applicant is attempting to base its argument on clause 1.41 of the Guidelines however this clause refers to inconsistencies between the Assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities. There is no evidence of these in the present case as the Assessor did not make any clinical findings having found against the claimant on the preliminary question of causation.

11. There is also no indication that the claimant was not asked about his ability to cycle. The claimant had notice of the cycling matters given this formed much of the additional information included in the application for further assessment. Moreover, on page 5, the claimant was specifically asked about how his cycling was affected. The claimant therefore had ample opportunity to clarify his position or explain how he was able to race professionally following the motor accident injury. There is no denial of procedural fairness here.

12. In the present case, the Assessor was provided with additional relevant information which included the cycling racing results and further supplementary report of Dr Stephen. This information showed that the claimant ‘was undertaking professional cycling’ after the motor accident and the claimant did not stop until cycling finished in March 2014. The Assessor placed weight on this information and, aside from arguing that the information is evidence of inconsistencies, the applicant has not indicated how the Assessor’s consideration of the information or the causation discretion is incorrect.”

120. On this basis, the Proper Officer was not satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. As such, he dismissed the application for review.

The plaintiff’s submissions

121. Essentially, the plaintiff says that because of the errors identified above in the certificate of the Medical Assessor, the Proper Officer ought to have referred the matter for review.

122. The plaintiff referred to Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (“Meeuwissen”), where Basten JA in considering the role of the Proper Officer stated at [18]:

“The phrase ‘in a material respect’ is imprecise ... it can refer to the process by which the outcome is achieved. (This) approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome.”

123. The plaintiff submitted that the Proper Officer falls into the category of persons not required or permitted to vary the outcome of the Medical Assessor’s certificate. As such, the approach to be taken by the Proper Officer is to determine whether the process by which Medical Assessor’s reasoned was in error.

124. In Meeuwissen, Basten JA also noted at [21] that a proper officer does not need to be satisfied that the medical assessment under review was incorrect, but only that there was reasonable cause to suspect that it was. Once there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed (at [23]).

125. The plaintiff also referred to Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 (“Elliott”), where Campbell J dealt with a similar matter relating to the decision of a proper officer who did not to refer the matter for further assessment. After considering the decision of Basten JA in Meeuwissen, Campbell J noted at [53] that where a proper officer deals with individual arguments put before him or her, he may overlook that “he is required to answer a single question and it may be that considering all matters together could lead to a different result or a different decision from considering them separately.”

126. In Meeuwissen, Campbell J stated at [59]:

“…[I]t is likely that a state of satisfaction that there is reasonable cause to suspect that the assessment was incorrect need not arise above anything other than a state of unease on the part of the Proper Officer about the correctness of the assessment reading the Medical Assessor's reasons and considering the applicant’s criticism of them...the weight of the whole argument may be greater than the sum of its parts.”

127. His Honour went on at [60] to note that it was not for a proper officer to decide the correctness of the assessment.

128. The plaintiff submitted that at [11] of his reasons, the Proper Officer said, “there is also no indication that the claimant was not asked about his ability to cycle”. The plaintiff has put on an affidavit in which he gives that evidence. Regardless, the plaintiff submitted that the fact that the Medical Assessor’s reasons do not record that he was confronted with the racing results should have created a “state of unease” in the mind of the Proper Officer about the correctness of the assessment process, and therefore the outcome of the assessment itself.

129. The Medical Assessor recorded on page 5 of his certificate that the plaintiff told him that his recreational activities had been affected, that he could ride his pushbike but not race, that he last raced in 2014 and that this was at a level which was lower than normal. The Medical Assessor then went on to place great weight upon the racing results, but did not challenge the plaintiff with them. The plaintiff submitted that this should also have created a “state of unease” in the mind of the Proper Officer.

130. At [12] of the Proper Officer’s decision, he also recorded his opinion of the plaintiff’s “professional cycling”. The plaintiff submitted that it is unclear why Dr Stephen, or the Proper Officer, believed the plaintiff’s cycling to be professional in nature. The Proper Officer went on to note that the Medical Assessor placed weight on the information, but then said that the plaintiff had “not indicated how the Medical Assessor’s consideration of the information or the causation decision is incorrect”. In the plaintiffs submission this was incorrect for the reasons set out in relation to the case sought to be made out against the certificate and reasons of the Medical Assessor.

131. The plaintiff submitted that on this basis, the Proper Officer ought to have developed a requisite state of unease about the procedure undertaken by the Medical Assessor, and therefore allowed a review. As such, the decision of the Proper Officer should be set aside.

The insurer’s submissions

132. The insurer submitted that the role of the Proper Officer was one of gate keeper. He was required to determine if there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

133. In the event the Court accepts the insurer’s primary submissions that there is no jurisdictional error in the decision of the Medical Assessor, self-evidently, the decision of the Proper Officer should be upheld.

Consideration

134. The role of the Proper Officer was to determine whether, on the basis of the plaintiff’s application, he was satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. For the reasons given in relation to the plaintiff’s judicial review of the Medical Assessor’s decision, it is my view that that decision was not in error. As such, the Proper Officer did not err in failing to refer the decision for review, nor was it, in my view, material to that decision that the Proper Officer mistakenly referred to the plaintiff’s participation in “professional” rather than “competitive” cycling.

Result

135. The result is that the plaintiff has failed to establish an error of law on the face of the record or jurisdictional error. The judicial review fails. The plaintiff’s summons filed 17 December 2019 is dismissed.

Costs

136. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the insurer’s costs on an ordinary basis.

THE COURT ORDERS THAT:

1. The plaintiff’s summons filed 17 December 2019 is dismissed.

2. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

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Decision last updated: 08 February 2021